Lowe v. Lowe

• Decision Date: 01 April 1912
• Parties: LAURA LOWE, Respondent, v. ANDREW and LOGAN LOWE, Executors, et al., Appellants
• Court: Kansas Court of Appeals

146 S.W. 100

163 Mo.App. 209

LAURA LOWE, Respondent, v. ANDREW and LOGAN LOWE, Executors, et al., Appellants

Court of Appeals of Missouri, Kansas City

April 1, 1912

Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.

AFFIRMED.

Cause affirmed.

Smoot & Cooley and George McDowell for appellants.

J. E Reiger and B. F. Greenwood for respondent.

OPINION

BROADDUS, P. J.

The plaintiff, the widow of Rhodes Lowe, deceased, filed in the probate court a claim for an allowance out of his estate for $ 200 in lieu of "all grain, meat, vegetables, groceries and other provisions on hand and provided and necessary for the subsistence of the widow and her family for twelve months." The probate court made the allowance. The executors of the estate appealed from the judgment to the circuit court where the judgment of the probate court was affirmed, and the executors appealed to this court.

At the trial the following facts were admitted, viz.: First. That plaintiff was the widow of Rhodes Lowe, and that he died on the 30th day of May, 1910. Second. That $ 200 is not an unreasonable sum if plaintiff is entitled to any allowance whatever. Third. That the estate inventories $ 10,500. Fourth. That plaintiff had no property at the time of her marriage. Upon this agreement as to the facts plaintiff rested her case.

The defendants introduced the following antenuptial contract viz.: "This contract, made and entered into this 10th day of July, 1907, between Rhodes Lowe of Kirksville Missouri, first party, and Laura A. Grebs, if Marceline, Missouri, second party, witnesseth, that whereas said parties contemplate intermarriage with each other, it is mutually agreed that in case such marriage shall be celebrated, that in consideration thereof, said first party will convey to said second party by warranty deed his homestead, to-wit: Lots three and four in block three in Falkenstein's Addition to the town, now city, of Kirksville, Adair county, Missouri, reserving the use and possession thereof during his lifetime, and will allow her the use of $ 300 to be loaned by her, and she to receive the interest thereon during first party's lifetime, and at his death said second party shall receive out of his estate a sum of money equivalent to one-third of all his estate, including real, personal and all property of every nature in excess of the sum of thirteen thousand dollars; that is said second party shall have one-third interest in the estate of said second party in excess of the value of $ 13,000; and the said $ 300 above mentioned--to be returned to said first party's estate at his death. And said second party shall receive a comfortable home and support so long as first party lives, and her daughter, Ella G. Crebs, shall have a home with her mother, if she so desires, her said mother, the second party, to maintain and support her. And in consideration of these premises, the second party does hereby accept said provisions for her benefit in full, and in lieu of dower in the property of first party and of all marital rights in his property and estate, but she shall be excluded from all marital rights in the estate of first party, except as above provided. And, in consideration of these premises, first party agrees and binds himself that he will not have or claim any interest, dower or marital right whatever in the property or estate of second party during the continuance of said marriage or in the event he should survive said second party, but she shall own and possess all her property, as her sole and separate estate, including all that property that she may now have or may hereafter acquire, in any manner. And in addition to the foregoing provision the second party shall receive out of the estate, of first party at his death, the additional sum of fifteen hundred dollars."

Other evidence introduced went to show that the plaintiff received the property mentioned in the contract according to its terms. It was further shown that plaintiff and deceased did not live together agreeably, and that at the date of his death she had a suit pending against him for divorce. She had commenced a prior suit against him for divorce, which was compromised, and plaintiff returned to the home of her husband. Deceased paid some debts of plaintiff during the marital relations of the parties, but such fact and others relating to their married life we do not think throw any light on the issue before the court. It is to be regretted that respondent has filed no brief and argument to aid the court in coming to a correct conclusion in the case. We are enabled, however, to conclude from what the record discloses...