Limb v. Bevins

• Citation: 155 S.W.2d 508,236 Mo.App. 556
• Parties: CHARLES H. LIMB, GEORGE T. LIMB AND ANNA BOWLING, PLAINTIFFS, (RESPONDENTS), v. ELIZABETH BEVINS, FLORA SAWYER KLINE, LAURA SCHWENGELS, LULU FAIRBANKS, FANNIE WIESEMANN, NELLIE YTELL, FREDERICK WIESEMANN, ALEXANDER SAWYER, ALICE SAWYER, ALCO BEVINS, LAURA MORGAN, LUTTIE WILLIAMS AND EMMETT BEVINS, DEFENDANTS, (RESPONDENTS), UBBE JOHNSON, INTERVENOR, (APPELLANT)
• Decision Date: 03 November 1941
• Court: Kansas Court of Appeals

155 S.W.2d 508

236 Mo.App. 556

CHARLES H. LIMB, GEORGE T. LIMB AND ANNA BOWLING, PLAINTIFFS, (RESPONDENTS), v. ELIZABETH BEVINS, FLORA SAWYER KLINE, LAURA SCHWENGELS, LULU FAIRBANKS, FANNIE WIESEMANN, NELLIE YTELL, FREDERICK WIESEMANN, ALEXANDER SAWYER, ALICE SAWYER, ALCO BEVINS, LAURA MORGAN, LUTTIE WILLIAMS AND EMMETT BEVINS, DEFENDANTS, (RESPONDENTS), UBBE JOHNSON, INTERVENOR, (APPELLANT)

Court of Appeals of Missouri, Kansas City

November 3, 1941

Appeal from Circuit Court of Clinton County.--Hon. Richard B Bridgeman, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

John J Robison and Harold Miller for appellant.

The court erred in overruling motion to make executors of James H. Limb estate party to suit, and in overruling intervenor's motion to charge land with intervenor's demand. Miller v. Schnebly, 103 Mo. 368; Rusk v Thompson, 156 S.W. 65; State ex rel. Deems et al. v Holtchamp et al. (Mo.), 151 S.W. 153. The court erred in overruling motion to make executors of James H. Limb estate parties to the suit, and in overruling intervenor's motion to charge land with intervenor's demand. 29 C. J., p. 929; 26 Am. Jur., p. 104; Turner v. Scheiber (Wis.), 61 N.W. 280; In re Estate of Caldwell (Ia.), 215 N.W. 615; In re Madden, 104 Wis. 61; In re Schultz (Ia.), 185 N.W. 24; Conley v. McMahon (Minn.), 142 N.W. 16.

Frank W. Armstrong for respondents.

A. R. Alexander guardian ad litem, for Frederick Wiesemann.

(1) No notice necessary in Missouri. First Nat. Bank of Golden City v. Cook, 74 S.W.2d 846; Mulkey v. Mulkey, 145 S.W.2d 996. The probate court had jurisdiction to appoint commissioners to admeasure dower and homestead; that it was in rem; that the plaintiff had notice of the administration. First Nat. Bank of Golden City v. Cook, supra. The case of Miller v. Schnebly, 103 Mo. 368 (cited by appellant), has been criticized or overruled. Weatherford v. King, 119 Mo. 51; First Nat. Bank of Golden City v. Cook, supra; Sec. 2697, R. S. Mo., 1879; Sec. 617, R. S. Mo., 1939; Kelley, Probate Law, p. 502, par. 401. The appellant did not except to the order of the probate court approving the report of the commissioners, nor did he take an appeal therefrom. Moran v. Stewart, 246 Mo. 462, 473 et seq.; Mulkey v. Mulkey, 145 S.W.2d 996; First Nat. Bank of Golden City v. Cook, supra. The proceeding to set out homestead is in rem. 1 Woerner, American Law of Administration (3 Ed.), p. 325; Brewington v. Brewington, 211 Mo. 48, 60; First Nat. Bank of Golden City v. Cook, supra. (2) The property occupied as a homestead by husband who leaves widow and adult or minor children cannot be sold to pay debts of deceased even after children attain majority or die or widow dies. Sec. 612, R. S. Mo., 1939; Bank of Hartsburg v. Sapp et al., 73 S.W.2d 294; Maupin v. Longacre et al., 315 Mo. 872, 288 S.W. 54; Johnson et al. v. Adams, 7 S.W.2d 1010; Kay v. Politte, 129 S.W.2d 863; Nettleton Bank v. McGaughey's Estate, 11 S.W.2d 1093; Same Case (Mo.), 2 S.W.2d 77; Kelley v. Parman, 282 S.W. 755; Balance v. Gordon, 247 Mo. 127; Dennis v. Gorman, 289 Mo. 1; Armour v. Lewis, 252 Mo. 568. (3) The appellant has had his day in court. Mulkey v. Mulkey, 145 S.W.2d 996, 998, pars. 2, 3; Libby v. Boward, 288 Mo. 148; Kay v. Politte, 129 S.W.2d 865, par. 3; Dennis v. Gorman, 289 Mo. 1.

OPINION

CAVE, J.

This is an appeal from an order of the Circuit Court of Clinton County overruling the petition of Ubbe Johnson as Intervenor, which petition prayed the court to make one Charles H. Limb and George T. Limb parties defendant as executors of the estate of one James H. Limb, deceased.

The facts giving rise to this controversy are not in dispute. James H. Limb died testate on the 12th day of April, 1932, seized in fee of certain real estate, some of which was located in Clinton County, and some in other counties. At the time of his death, James H. Limb was survived by his widow, Fannie E. Limb, and nine children. His will was probated in the Probate Court of Clinton County, and his two sons, Charles H. Limb and George T. Limb, were duly appointed and qualified as executors. The first article of the will, and the part which is directly drawn in issue here is as follows:

"First: I order and direct that my executors hereinafter named, pay all my just debts and funeral expenses as soon after my decrease as conveniently may be. Should my personal property be insufficient for that purpose, my executors are hereby authorized and empowered to sell so much of my real estate as may be needed to pay such debts."

The will then provided that "after the payment of such expenses and debts," all the balance of his property of whatsoever nature, both real and personal, was bequeathed to his wife, Fannie E. Limb, for her use and maintenance during her life, and after her death to go to his children, in equal shares, with certain exceptions which are not here involved. Within a year after his death, the widow elected to renounce the will and take her dower and homestead rights. In due time a petition was presented to the probate court praying for the appointment of commissioners to set off and admeasure the widow's homestead, which was done. The 22 acres of land which is here involved was the land set off to the widow as her homestead. This was done in November, 1933. The balance of deceased's land and his personal property were sold or disposed of by the executors, but the amount received therefrom was not sufficient to pay any demands below the fifth class. The intervenor, Ubbe Johnson, on May 20, 1933, secured a judgment against the estate of James H. Limb in the sum of $ 1002, which was thereafter filed in the Probate Court of Clinton County, where the administration of said estate was pending, and this claim or judgment was assigned to the sixth class, because it had not been presented within the six months' period. The judgment was not paid by the executors and has not yet been paid. The final settlement of the executors was filed and approved in the probate court on the 11th day of June, 1934.

The widow, Fannie E. Limb, died on June 1, 1939, leaving no minor children. Thereafter, the plaintiffs filed against the defendants a partition suit seeking to have partitioned the 22 acres of land which had been set off to the widow and to distribute the proceeds according to the interests acquired under the will. While that partition suit was pending, the intervenor, Ubbe Johnson, by leave of court to intervene, filed his petition praying that the executors of James H. Limb be made parties to said partition suit. The intervening petition is as follows:

"Now on this day comes Ubbe Johnson, by his attorney, and states to the Court, that in the above entitled cause, that all parties in interest are not parties to said action.

"That the estate of James H. Limb was duly administered in Clinton County, Missouri, that Charles H. Limb and George T. Limb were the duly appointed Executors.

"That said estate was inadvertently closed without completion of said estate.

"That there are unpaid demands and charges against said estate, that the said Ubbe Johnson has an unpaid demand against the estate of James H. Limb, being those under whom plaintiffs and defendants claims, and land sought to be partitioned are a part of the assets of said estate, and liable for payments of said claims and debts.

"Wherefore, the said Ubbe Johnson as a creditor of said estate, whose claim is unsatisfied, prays the Court that the Executors of said estate be made a party defendants, and that the demand of Ubbe Johnson be allowed and paid out of the lands sought to be partitioned."

After that petition was filed, the cause proceeded to trial before the court, and the court took the matter under advisement until the January, 1941, Term of court, at which time the following order was made:

"Now at this time the court takes up the motion of Ubbe Johnson to make administrator of the estate of James H. Limb a party to this suit, and the court overrules said motion and Ubbe Johnson excepts."

To that order the said Ubbe Johnson filed a motion for new trial, which was overruled, and he appeals to this court. Such other facts as are pertinent will be noted in the opinion.

Appellant urges two grounds of error committed by the court in overruling his petition. The first is that the order and proceedings setting off the homestead to the widow was a nullity and void because the record does not disclose that any notice was given to this creditor of such proceedings. The second ground of error is that the plaintiffs and defendants to the partition suit derive their interest in the land by the will of James H. Limb and that they must take the property subject to all conditions set forth in the will, and that when the testator authorized and empowered the executors to sell "so much of my real estate as may be needed to pay such debts," he thereby encumbered all of his real estate and subjected all of his land, including the homestead, to the payment of his debts.

It is conceded by the appellant that there is no Missouri statute requiring notice to be given to a creditor of an estate when it is sought through the probate court to set off homestead to the widow and minor children, if any. However, he argues that it should be implied that notice should be given to a creditor under such circumstances because his property rights might be affected by such a procedure. To support such claim, he relies upon the cases of Miller v. Schnebly, 103 Mo. 368, 15 S.W. 435; Rusk v. Thompson, 170 Mo.App. 76, 156 S.W. 64; and State ex rel. Deems et al. v. Holtcamp et al., 245 Mo. 655, 151 S.W. 153. We have read those cases and do not believe they rule the point directly involved here.

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