Monahan v. Monahan's Estate
| Decision Date | 21 January 1936 |
| Citation | 89 S.W.2d 153,232 Mo.App. 91 |
| Parties | WILLIAM J. MONAHAN AND MARY L. WEIGLEIN, ADMINISTRATORS, C. T. S., D. B. N., OF THE ESTATE OF WALTER J. MONAHAN, DECEASED, APPELLANTS, v. THE ESTATE OF MAYME MONAHAN, DECEASED, RESPONDENT |
| Court | Missouri Court of Appeals |
ON MOTION FOR REHEARING.
Respondents have, in their motion for a rehearing, vigorously reiterated their contention that, the widower, Walter J. Monahan, not having made any application, for the allowance for twelve months' maintenance, to the probate court, and, his guardian, also, having failed so to do, his right to the same has become extinct on the theory that the failure to make such application constituted a waiver of his rights.
It is further urged in the motion for a rehearing, that the Court in its opinion, has, in effect, rewritten the statute and rewritten, or broken, the will of Mayme Monahan, and nullified, pro tanto, the provisions intended by the testatrix for her two sisters (residuary beneficiaries) and given the $ 1600 allowance ordered, to the heirs of Walter J Monahan, as he, being dead, could derive no benefit from such allowance.
We think that the advancement of such an argument comes with rather poor grace under the circumstances. It will be noted that following the death of Mayme Monahan, her sister's husband, E. B. Whitworth, was appointed guardian of Walter J Monahan, the insane widower, and acted as such until the latter's death, which was ten months and six days after the death of his wife, and, the record shows that he immediately was appointed his administrator, but, in a short time thereafter was removed and the present administrators appointed.
It is conceded in the motion for a rehearing, and, properly so that the guardian for the widower had the right to apply for the allowance. We hold that he had not only the right to make the application for the allowance on behalf of his ward, but that it was his duty to do so. Under the provision of sections 461 and 462, Revised Statutes Missouri 1929 (Mo. Stat. Ann., secs. 461 and 462, p. 288) it became his duty to provide for his ward's "support and maintenance" and to collect and take charge of the ward's estate, including all "evidences of debt." It follows, therefore, that if the guardian failed to make seasonable application for the twelve months' maintenance allowance, in the absence of provisions for his ward, in accord with the right as set out in section 107, Revised Statutes Missouri 1929 (Mo. Stat. Ann., sec. 107, p. 69) and, by reason of such neglect of duty the right to such allowance was lost, the guardian would clearly be liable on his bond. [See section 457, Revised Statutes Missouri 1929 (Mo....
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