Mahon v. Fletcher's Estate

• Decision Date: 04 December 1922
• Docket Number: No. 14475.,14475.
• Citation: 245 S.W. 372
• Parties: MAHON et al. v. FLETCHER'S ESTATE.
• Court: Missouri Court of Appeals

245 S.W. 372

MAHON et al. v. FLETCHER'S ESTATE.

No. 14475.

Kansas City Court of Appeals. Missouri.

December 4, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

In the matter of the estate of Thomas C. Fletcher, deceased. On an application of Elizabeth Fletcher, widow of deceased, the probate court made an allowance to her. The circuit court, on appeal of collateral heirs, reduced the allowance for a year's subsistence to the widow, and the estate appeals. Affirmed.

Sterling P. Reynolds, of St. Joseph, for appellant

Sherman, Stigall & Kranitz, of St. Joseph, for respondents.

ARNOLD, J.

This is an appeal from a judgment rendered in the circuit court of Buchanan county reducing the amount of allowance from $2,400 to $1,500 for a year's subsistence to the widow of decedent, Thomas C. Fletcher.

The facts in the case, briefly stated, are these: Thomas C. Fletcher died intestate on November 9, 1920, in Buchanan county, leaving an estate consisting of personal property only, valued at $5,500 net, after all claims were paid. He left no lineal descendants, but did leave a widow, Elizabeth Fletcher. On November 24, 1920, Harry C. Yates was appointed and duly qualified as administrator of said estate. On January 10, 1921, the probate court issued the following order:

"Comes now Elizabeth Fletcher, widow and sole heir of said deceased, and makes application for her allowances as provided by statute, and, the court having heard the evidence and being fully advised, it is ordered and adjudged that said widow be, and she is hereby, allowed the sum of $400 as her absolute property out of the assets of said estate, and it is further ordered and adjudged that said widow be, and she is hereby, allowed the further sum of $2,400 for her first year's maintenance and support, out of the funds of said estate, which said sums the administrator is ordered to pay, and take credit therefor in his annual settlement of said estate."

February 23, 1921, a motion to set aside the order and judgment of the court making said allowance was filed by attorneys for certain collateral heirs. This motion was overruled and on March 21, thereafter attorneys for Maude H. Crooks and J. C. Fletcher, nonresident heirs of said decedent, filed affidavit for appeal to the circuit court of said county. Said appeal was allowed.

The petition to set aside the order allowing $2,400 as one year's support for the widow, duly filed in the probate court, charges that Maude H. Crooks and J. C. Fletcher are children of J. W. Fletcher, a brother of the deceased, and that at the time of making the order for one year's support for the widow the court was not fully advised of all the facts in the case, that said allowance is excessive, that no notice of administration ever had been sent to the petitioners, that said widow is not the sole beneficiary of the estate, and prays that said order be set aside.

A transcript of the probate court proceedings was filed in the circuit court, and an amended petition filed therein at the October, 1921, term of said circuit court. The amended petition alleges that Brown Mahon had been duly appointed administrator of the estate of Maude H. Crooks, who died February 11, 1921, at Greenville, S. C.; that the circuit court of Buchanan county, Mo., at the May 1921 term thereof, made an order permitting the substitution of said Brown Mahon administrator, as petitioner herein, instead of the said Maude H. Crooks. The petition then sets forth that Maude H. Crooks and J. C. Fletcher are the children of J. W. Fletcher, deceased, who was a brother of Thomas C. Fletcher, deceased; that at the time of making the order allowing the widow of T. C. Fletcher the sum of $2,400 out of the estate for one year's support the court was not fully advised of all the facts' in the case, it having been represented to the court that the said widow was the sole and only heir at law of said T. C. Fletcher, deceased; that no notice of the administration had ever been sent to the petitioners, or to Maude H. Crooks, and that since hearing of said administration they had used due diligence to apprise the court of the facts in the case; that their interest is one-half of the estate, said niece and nephew being the sole and only collateral heirs of T. C. Fletcher, deceased; that the said Widow is not the sole beneficiary of the estate, as heretofore considered by the court; that the order allowing the said widow $2,400 out of said estate for one year's support is excessive and prejudicial to the interests of the petitioners herein; that the sum of $100 per month in the premises is ample and sufficient to maintain said widow in the same standard of living in which she is, and always has been maintained. The prayer is that the court set aside the order of the probate court theretofore made, and make such allowance as may seem meet and proper under the facts.

The cause was tried to the court on November 16, 1921, and the following judgment entered:

"Evidence introduced by plaintiff and defendant and argument of counsel, the court, being fully advised in the premises, does find that plaintiff, James C. Fletcher, is a nephew of Thomas 0. Fletcher, deceased, and an heir of the said Thomas C. Fletcher, deceased, having an interest in the estate of the said Thomas C. Fletcher, deceased, under administration.

"The court further finds that any sum in excess of $1,500 is improper and excessive as an allowance to the widow in this cause as and for provisions necessary for the sustenance of herself for 12 months, but that a reasonable sum for such allowance, in lieu of grain, meat, or other provisions, as provided in section 106, Revised Statutes of Missouri, 1919, is said sum of $1,500, and the court does therefore hereby allow to said widow, Elizabeth Fletcher, out of the property of the estate of Thomas C. Fletcher, deceased, the sum of $1,500, as provided by said section 105.

"The court further adjudges the costs of this proceeding shall be paid out of the assets of said estate, and adjudges said costs against said estate."

A motion for new trial filed in due time was overruled, and defendant appeals.

The first assignment of error is directed against the jurisdiction of the court to hear and determine the case. It is charged in this connection that the court should have sustained defendant's objection to any evidence, because the trial court gets jurisdiction by appeal only, and that there is nothing showing that plaintiffs had any interest in this estate, and therefore had no right to appeal; that before an appeal will lie the record must show an interest in the controversy.

The transcript of the record from the probate court, on file herein, would seem to answer this objection. The said transcript discloses the various steps taken by plaintiffs in the proceedings in the probate court. Upon the face of this...