In re Wahl's Estate
| Decision Date | 28 January 1942 |
| Citation | 158 S.W.2d 743,236 Mo.App. 345 |
| Parties | IN THE MATTER OF THE ESTATE OF JAMES S. WAHL, DECEASED, ANNA VASHTI WAHL, PETITIONER, RESPONDENT, v. THE ESTATE OF JAMES S. WAHL, DECEASED; SHARON J. PATE, EXECUTOR OF SAID ESTATE, APPELLANT |
| Court | Missouri Court of Appeals |
Rehearing Denied February 18, 1942.
Appeal from the Circuit Court of Pemiscot County.--Hon. Louis H Schult, Judge.
AFFIRMED.
Judgment affirmed.
Corbett & Peal for appellant.
(1) The finding and judgment of the trial court is against the law and the evidence in the case. (2) The finding and judgment of the trial court should be reversed, for the reason, the respondent could and cannot take both under the law and under the will. Trautz v. Lemp, 329 Mo. 58, 46 S.W.2d 135; Wood v. Conqueror Trust Co., 265 Mo. 511, 178 S.W 201; Moseley v. Bogy, 272 Mo. 319, 198 S.W. 847; Colvin v. Hutchinson, 338 Mo. 576, 92 S.W.2d 667; In re Bernay's Estate (Mo.), 126 S.W.2d 209. (3) The finding and judgment is erroneous and should be reversed, for the reason that under the facts in evidence the respondent had accepted the provisions of the will and had estopped herself to claim widow's statutory allowances or thereafter to renounce its provisions and elect to take one-half of the real and personal property left by her husband. Moseley v. Bogy, supra; Stoepler v. Silberberg, 220 Mo. 258; Wood v. Trust Co., 265 Mo. 525; Schuster v. Morton (Mo.), 187 S.W. 2; Lindley v. Patterson (Mo.), 177 S.W. 826; Broadus v. Geatley, 147 S.W.2d 631; English et al. v. Ragsdale et al. (Mo.), 147 S.W.2d 653; Moseley v. Bogy, supra; Trautz v. Lemp, supra; Stone v. Cook, 179 Mo. 534. (4, 5) The judgment of the trial court should be reversed, for the reason that, if the judgment be permitted to stand, more than one-half of the real and personal property left by her husband at the time of his death, and which she elected to take when she renounced the will. And the respondent has estopped herself to claim a widow's Statutory allowances. Sec. 2, Ch. 1 of Art. 1, R. S. Mo. 1939; Secs. 106 to 109, R. S. Mo. 1939. (6) The finding and judgment of the trial court was for the wrong party under the law and evidence. (7) The court erred in overruling appellant's motion for a new trial.
Ward & Reeves for respondent.
(1) The will of Jas. S. Wahl does not deprive his widow of her statutory allowances for a year's support and household and kitchen furniture as provided in Section 106, R. S. Mo. 1939, and the $ 400 provided for in Section 107. The will, to have such effect, must contain some provision unequivocally expressing the purpose to give her property in lieu of these statutory allowances. Hassenritter v. Hassenritter, 77 Mo. 162; Bryant, Admr., v. McCune et al., 49 Mo. 546; Ellis v. Ellis, 119 Mo.App. 63; Glenn v. Gunn, 88 Mo.App. 423; In re Flynn's Estate, 228 Mo.App. 1197, 67 S.W.2d 771; Cavener v. Cavener's Estate, 95 S.W.2d 341; Puegh v. McKinney, 211 S.W. 83; Monahan v. Monahan's Estate, 232 Mo.App. 91, 89 S.W.2d 153. (2) If Mrs. Wahl did file an effective election to take one-half of the real estate and one-half of the personal property, she is nevertheless entitled to these statutory allowances. In re Stambaugh, 210 Mo. 636; Martin v. Jones, 155 Mo.App. 490; In re Flynn's Estate, supra. (3) Whether Mrs. Wahl takes under the will of her husband or elects to take under the statute, Sections 325 and 327, R. S. Mo. 1939, she is entitled to the bounties or absolute property given her by Sections 106 and 107. Monahan v. Monahan's Estate, supra; Overfield v. Overfield, 326 Mo. 83, 30 S.W.2d 1073. (4) The matter of the validity of the election is a proper matter to be determined at this time in this case, but we insist that under the circumstances shown by this record Mrs. Wahl is not estopped by her conduct to make her election, nor has she waived her right to do so. In re Goessling v. Goessling, 287 Mo. 663; In re Flynn's Estate, supra; In re Flynn's Estate, 95 S.W.2d 1208; State v. Hostetter, 104 S.W.2d 303; Overfield v. Overfield, supra. (5) The evidence shows that there was no valid gift of these shares of stock to Sharon J. Pate and others. Feil v. First Nat. Bank, 269 S.W. 936; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370.
This suit originated in the Probate Court of Pemiscot County and is based upon a petition and application filed by respondent, Anna Vashti Wahl, for widow's allowance under certain provisions of the statutes of Missouri. Her petition prayed for an allowance of $ 400 absolutely, under section 108, R. S. Mo. 1929 (now sec. 107, R. S. Mo. 1939); for household and kitchen furniture to the value of $ 500 under section 107, R. S. Mo. 1929 (now sec. 106, R. S. Mo. 1939); and also for $ 2,500 for a year's support as also provided by section 107, R. S. Mo. 1929 (). The probate court made an order allowing respondent, as the widow of James S. Wahl, deceased, the full amount of the allowances prayed for in her petition. Thereupon, Sharon J. Pate, Executor of the last will and testament of the said James S. Wahl, deceased, and one of the devisees and legatees under the will, and Dorothy Pate Edwards, also one of the devisees and legatees under the will, appealed from said order to the Circuit Court of Pemiscot County.
Thereafter, on the 16th day of December, 1940, at the regular term, 1940, of the Circuit Court of said county, upon a hearing on said application and petition, the court took the cause under advisement until the 30th day of December, 1940, on which date he rendered judgment in favor of the said Anna Vashti Wahl and against the Estate of James S. Wahl, deceased, for the sum of $ 400 absolutely; and for all the household, kitchen and table furniture including beds, bedsteads and bedding left by the said James S. Wahl at the time of his death, and which the court found not to exceed in value the sum of $ 500; and the sum of $ 2,000 for her support for one year. From this judgment the said Sharon J. Pate has duly appealed to this court.
The facts are as follows: James S. Wahl died the 17th day of February, 1940, leaving the respondent, Anna Vashti Wahl, his wife, surviving, but left no lineal descendants. Respondent and Sharon J. Pate were named as joint executors of his last will and testament, which was duly probated in the Probate Court of Pemiscot County, on the 19th day of February, 1940, and thereupon, letters were issued to respondent and Sharon J. Pate as joint executors, without bond, both of whom having previously qualified as such. The inventory disclosed the estate of James S. Wahl amounted in the aggregate to $ 56,747.57, of which $ 24,747.57 was personal property and the remainder, $ 32,000 was real estate. The will provided (1) for the manner of conducting his funeral and the payment of his debts; (2) he gave, devised and bequeathed to Anna Vashti Wahl certain real estate; (3) he gave, devised and bequeathed to Sharon J. Pate certain real estate; (4) he gave, devised and bequeathed to Dorothy Pate Edwards certain real estate; (5) he gave, devised and bequeathed certain real estate to Sharon J. Pate and Dorothy Pate Edwards, share and share alike; and (6) he gave, devised and bequeathed to Anna Vashti Wahl, Sharon J. Pate and Dorothy Pate Edwards all the rest, residue and remainder of his estate, real, personal or mixed and wherever located, share and share alike; (7) he appointed Anna Vashti Wahl and Sharon J. Pate as joint executors of his last will and testament and authorized them to act as such without bond; and in the eighth and last provision he designated where his remains should be interred.
On the 19th day of March, 1940, Anna Vashti Wahl filed her petition and application for widow's allowance under certain provisions of the statute, as heretofore stated. On the 14th day of October, 1940, she filed her renunciation of the will, and pursuant to the statute, did, in lieu of dower, elect to take all the real and personal estate which came to said James S. Wahl, deceased, in right of their marriage, and all the personal property of said James S. Wahl which came to his possession with her written consent, remaining undisposed of, absolutely, not subject to the payment of the debts of the deceased, and one-half of all the real and personal estate belonging to said deceased, at the time of his death, absolutely, subject to the payment of his debts.
The evidence further shows that after Anna Vashti Wahl and Sharon J. Pate qualified as joint executors of the last will and testament of James S. Wahl, Anna Vashti Wahl assumed control of all the real property given to her by said will; collected and converted to her use the rents and profits arising therefrom and was doing so at the time of the trial of this cause; that she joined with Sharon J. Pate, her co-executor in administering said estate, signed checks with him in payment of debts of said estate and that at the trial of the cause in the Circuit Court there was only $ 83.02 in cash to the credit of the estate. On the 18th day of November, 1940 a semi-annual settlement was filed in the probate court, signed by both Anna Vashti Wahl and Sharon J. Pate, as executors. This semi-annual settlement shows a balance in the personal estate of $ 1706.27. However, the evidence discloses that certain items in said settlement are not listed in the computation of debits and credits, showing said balance, so that in order to get a correct statement of the balance due the estate these items, aggregating $ 2,882.45, should be added thereto. Therefore, at the time of the filing of said settlement, which was more than seven months after the statutory...
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