Lazonby v. Smithey

• Decision Date: 07 November 1910
• Citation: 151 Mo. App. 285,131 S.W. 708
• Parties: LAZONBY v. SMITHEY.
• Court: Missouri Court of Appeals

131 S.W. 708

151 Mo. App. 285

LAZONBY v. SMITHEY.

Kansas City Court of Appeals. Missouri.

November 7, 1910.

1. EXECUTORS AND ADMINISTRATORS (§ 182) —WIDOW'S ALLOWANCE—DEBTS OF HUSBAND — CLAIMS FOR PURCHASE MONEY.

Rev. St. 1899, § 107 (Ann. St. 1906, p. 373), allows the widow $400 of her husband's estate. Section 108 (page 374) provides that the property delivered to her shall in no case be liable for the payment of decedent's debts. Section 3170 (page 1802) provides that personal property shall be subject to execution on a judgment against the purchaser for the price, and shall not be exempt therefrom, except in the hands of an innocent purchaser. Sections 122 and 123 (page 377) provide that if any of a decedent's personalty be bound by an execution lien at his death, whether levied on or not, the executor shall include it in his inventory, and have it separately appraised, and the probate court may require it to be redeemed, and section 124 (page 378) provides that the two preceding sections shall not be so construed as to deprive the widow and minor children of the benefit of the preceding section of the chapter. Held, that a widow was not, under section 107, entitled to take personalty free from a vendor's claim for the unpaid part of the price, and sections 122 and 123 do not exempt her from such liability, but refer merely to execution liens for ordinary debts.

2. STATUTES (§ 225½)—CONSTRUCTION—SPECIFIC STATUTES.

A statute containing specific terms qualifies another statute on the same subject, worded in general terms.

3. STATUTES (§ 225)—CONSTRUCTION—STATUTES IN PARI MATERIA.

Statutes relating to a common subject should be construed together, so that both may be given full effect.

4. EXECUTORS AND ADMINISTRATORS (§ 195) — WIDOW'S ALLOWANCE — EFFECT OF DEATH OF WIDOW.

Should the widow die without disposing of personalty allowed her by Rev. St. 1899, § 107 (Ann. St. 1906, p. 373) allowing the widow $400 in value of the husband's estate, such property would go to her heirs through the administrator, as against the claims of general creditors of the husband.

5. EXECUTORS AND ADMINISTRATORS (§ 3)— APPOINTMENT OF ADMINISTRATOR—RIGHT TO APPOINTMENT.

While ordinarily the vendor of personalty should enforce his claim for the price by judgment and execution against the property, he is not deprived of his right to the purchase price by the purchaser's death, but is entitled to have an administrator appointed to have the balance of the purchase price allowed, so as to place himself in a position to obtain equitable relief.

Appeal from Circuit Court, Ray County; Francis H. Trimble, Judge.

Application by J. A. Lazonby for the appointment of an administrator of the estate of James B. Smithey, deceased, which was opposed by Nora B. Smithey. From a judgment denying the application, the applicant appeals. Reversed and remanded.

J. L. Farris, Jr., for appellant. Lavelock & Kirkpatrick, for respondent.

ELLISON, J.

This proceeding was instituted in the probate court of Ray county for the appointment of an administrator of the estate of James B. Smithey, deceased. That court refused the application, and the circuit court did likewise on appeal.

It appears that in Smithey's lifetime he bought a piano of Lazonby and gave his note for $200 as a balance of the purchase price. He took possession of the piano at time of purchase, and it was in his possession at his death. He left surviving him a widow and two children. His estate, including the piano, was of less value than $400, and the probate court set it apart for the widow as provision in her behalf made by the statute; and, as authorized by statute in such cases, ordered that, as there was no necessity of administration, none should be had. Afterwards the present proceeding was instituted by Lazonby setting up that the piano in the widow's possession and held by her as a part of her statutory allowance of $400 was sold by him to Smithey, deceased, who executed his note for a part of the purchase price, and that he desired that administration be had so that he could have his note allowed, and then proceed to subject the piano to his claim for the purchase money. The widow meets this with a denial that a claim for the purchase money can by any procedure be enforced against the property after it has passed into her hands, and that she holds it discharged of any obligation.

The facts are not disputed, and we have merely to apply the law to them. The statute (section 107, Rev. St. 1899 [Ann. St. 1906, p. 373]) allows the widow $400 of the husband's estate, and, if such estate does not exceed that sum no necessity exists for an administration, and it may ordinarily be dispensed with. But the statute (section 3170, Rev. St. 1899 [Ann. St. 1906, p. 1802]) makes liable to judgment and execution any personal property on which the purchase money remains unpaid. It reads as follows: "Personal property shall in all cases be subject to execution on a judgment against the purchaser for the purchase price thereof, and shall in no case be exempt from such judgment and execution, except in the hands of an innocent purchaser, for value, without notice of the existence of such prior claim for the purchase money." Now while it has been held that this statute does not create a lien, or confer a priority, in favor of the vendor (Straus v. Rothan, 102 Mo. 261, 14 S. W. 940), yet it does lay on such property a liability from which other property is exempt. That liability is that it shall be held for the purchase price in every one's hands except those of an innocent purchaser for value, who has no notice that such price has not been paid. The widow obtains the property cum onere. She is not an innocent purchaser for value. She is not a purchaser at all. The vendor in point of morals has an interest in the property to the amount of the unpaid purchase money. If she takes it without purchase, it must be with its burthen of liability for its price.

The statute (section 107, Rev. St. 1899 [Ann. St. 1906, p. 373]) gives her $400 worth of personal property of her deceased husband, and declares, in section 108, that "the property so delivered shall in no case be liable for the payment of the debts of the deceased." This means that such property is not liable to be appropriated or sold by the administrator or probate court for the payment of such debts, as well as that it could not be taken under an execution. Yet by the terms of section 3170, already set out, it is declared that personal property shall in all cases be subject to execution for the purchase price, and shall in no case be exempt from such execution except in the hands of an innocent purchaser for value. Thus we have one statute saying that the property shall in "no case be liable" for the debt, and another statute that it "shall in no case be exempt" from liability, except in favor of an innocent purchaser. Where there is a statute worded in general terms and another statute, on the same subject, worded in specific terms, the latter qualifies the former. State v. Kessels, 120 Mo. App. 233, 242, 96 S. W. 494, 497. This is a fundamental rule of statutory construction. "A general prohibition is not inconsistent with a special indulgence, and a special indulgence is not repealed by a general prohibition, though the latter is subsequent in time to the former." Smith v. Clark County, 54 Mo. 58, 69. "Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular...