Monahan v. Monahan's Estate
| Decision Date | 07 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 |
Opinion filed on rehearing January 21, 1936.
Rehearing Denied 232 Mo.App. 91 at 100.
Appeal from Circuit Court of City of St. Louis.--Hon. H. A Hamilton, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
William Kohn for appellants.
Luke E Hart and Herbert Hart, of counsel for appellants.
(1) Under the law and the evidence the widower was entitled to a reasonable allowance in lieu of provisions not on hand at the time of the taking of the inventory. The right to such allowance became vested at the time of the wife's death and survived the widower's death in favor of his estate. Secs. 106 and 107, R. S. Mo. 1929; Nelson v. Troll, 173 Mo. 51; In re Flynn's Estate (St. L. Ct. App.), 67 S.W.2d 771, l. c. 773; Nidy v. Rice, 226 Mo.App. 610, l. c. 613-614, 44 S.W.2d 196; Hasenritter v. Hasenritter, 77 Mo. 172; Hastings v. Myers, 21 Mo. 519; Williams v. Schneider (St. L. Ct. App.), 1 S.W.2d 230; Ulrici v. Johnston, 177 Mo.App. 584; McFarland v. Baze, 24 Mo. 156; Waters v. Herboth, 178 Mo. 166, 172; Mahoney v. Nevins, 190 Mo. 360, 367-368; Benjamin v. Laroche, 39 Minn. 334, l. c. 336. (2) We are not complaining of the order striking the election to renounce the will from the files. This order of the Probate Court was not an appealable order, because the renunciation of a will by a widower is unnecessary as to personal property, of which he takes one-half absolutely under the statute, which cannot be cut off by will. Sec. 324, R. S. Mo. 1929; Wallace v. Crank, 26 S.W.2d 601; Breadon v. Paugh (Mo. Sup.), 48 S.W.2d 851; Waters v. Herboth, 178 Mo. 166, l. c. 171-172; Messenbaugh v. Goll, 198 Mo.App. 698. (3) It has been held that the inclusion of nonappealable orders in an appeal from an appealable order may be regarded as surplusage. Sunberg v. Goar, 92 Minn. 143, 99 N.W. 638; Meade v. Decker, 17 S.D. 590, 98 N.W. 86. See, also, Baker v. Trust Co. (Mo. Sup.), 234 S.W. 858.
Edward C. Schneider and Charles R. Judge for respondent.
(1) A single appeal cannot be taken from more than one order or judgment. The appeal of appellants from the orders of the Probate Court, therefore, vested no jurisdiction in the circuit court. 3 C. J. 354-5; Keet & Roundtree Dry Goods Co. v. Williams, 202 S.W. 620; In re Campbell's Estate, 274 Mo. 343, 202 S.W. 1114. (2) The right to an allowance in lieu of provisions authorized by section 107, R. S. Mo. 1929, while vesting at the time of the decedent's death in the surviving spouse, depends upon application by the surviving spouse, and the right to make this application is personal and does not survive. Howard v. Strode, 128 Mo. 182, 106 S.W. 116; Drowry v. Bauer, 68 Mo. 155; Peugh v. McKinney, 211 S.W. 83; Coulter v. Lyda, 102 Mo.App. 401, 76 S.W. 720; Cummings v. Cummings, 51 Mo. 261.
--This case originated in the Probate Court of the City of St. Louis, then it came on appeal to the circuit court and thence on appeal to this Court.
The question involved is the right of the administrators of a deceased husband's estate to an allowance, out of the estate of his wife who predeceased him, under the provisions of section 107, Revised Statutes Missouri 1929, which provides for an allowance to the surviving spouse for twelve months' maintenance on the non-existence of the provisions enumerated in the preceding section 106.
The facts are as follows:
Mayme Monahan (the wife) died in the City of St. Louis on January 28, 1931, testate. By her will, which was admitted to probate in the Probate Court of the City of St. Louis on February 19, 1931, she gave certain specific bequests to her two sisters and some small personal effects to her husband, Walter J. Monahan, and the remainder of her estate, consisting principally of money deposited in bank, aggregating around $ 7000 to the United Bank and Trust Company, the executor therein named, with directions to pay the income thereof and as much of the principal as it might be deemed necessary for the support of her husband and the remainder at his death to be paid over to her two sisters.
Neither she nor her husband left any lineal heirs surviving. The husband, Walter J. Monahan, died on December 4, 1931, ten months and six days after the wife's death. He was of unsound mind at the time of his death and had been for some years prior thereto. He was duly adjudicated to be of unsound mind and his wife, following such adjudication, was appointed his guardian on December 30, 1927, and acted as such until her death and Mr. Whitworth, her sister's husband, was then appointed guardian for him and acted as such until his ward's death, and thereafter was appointed administrator c. t. a. of his estate and served as such for a short time and was then supplanted by William J. Monahan and Mary L. Weiglein, who are the appellants in the instant case.
On February 18, 1932, these administrators filed their verified petition in the Mayme Monahan estate in the probate court, setting out that at the time of her death and at the time of the making of the inventory, the grain, meat, vegetables, groceries or other provisions enumerated in section 106, Revised Statutes Missouri 1929, were not on hand, and prayed for an allowance in lieu thereof necessary for the maintenance of the widower for twelve months under the provisions of section 107, Revised Statutes Missouri 1929. They also in the same petition prayed for the $ 400 allowance of absolute property as provided by section 108, Revised Statutes Missouri 1929.
The inventory of the estate of Mayme Monahan, was filed in the Probate Court on June 12, 1932, and showed no real estate.
The will of Walter J. Monahan, which bears date of July 5, 1922 (that being prior to his being adjudicated of unsound mind) was offered in evidence and shows to have been admitted to probate on December 7, 1931, and after benevolent bequests amounting to $ 300 it gave the residue of his estate to his wife, Mayme Monahan, and named her as executrix of same.
It was further shown that during the lifetime of Walter J. Monahan, neither he nor his guardian ever received anything from the estate of his deceased wife, Mayme Monahan. It was further shown by the inventory of the Mayme Monahan estate that there was not on hand any of the grain, meat or other provisions enumerated in section 106, Revised Statutes Missouri 1929, for the maintenance of the surviving widower for twelve months.
The appraiser appointed by the Probate Court for inheritance tax purposes in the Mayme Monahan estate under the provisions of section 585, Revised Statutes Missouri 1929, allowed, in his report to the Court, as a proper deduction from the gross amount of the estate, the sum of $ 1600 for "the widower's allowance" and that amount was agreed on by the parties in the Circuit Court hearing as being the proper amount to be allowed, in the event it was held that the estate of the husband was legally entitled to an allowance under the provisions of section 107, Revised Statutes Missouri 1929.
The trial court approved the allowance of the $ 400 absolute property under the provisions of section 108, Revised Statutes Missouri 1929, but refused to make any allowance for twelve months' maintenance for the widower under the provisions of section 107, Revised Statutes Missouri 1929, hence this appeal.
The pertinent portions of sections 106 and 107, Revised Statutes Missouri 1929, insofar as they affect the question to be determined in this case, are as follows:
It will be noted that the provisions enumerated in said section 106 are the absolute property of the surviving spouse by the express wording of the statute.
In consonance with the wording of this statute (which formerly applied to the widow only) our courts, from a very early day have, with remarkable unanimity, held that these enumerated provisions became the absolute property of the surviving widow or widower, and were not to be treated as a part of the estate for the purpose of being administered; that upon the death of a spouse, as the law now stands, the title to the articles enumerated vests in the surviving spouse so that the provisions enumerated in said section 106, or the money allowed in the event of their non-existence, become the absolute property of the surviving widow or widower as the case may be, free from the claims of creditors or distributees or other beneficiaries of the estate. Where there is a deficiency in the provisions enumerated in said section 106, wholly or in part, the right to an allowance out of the estate to supply such deficiency inures in the surviving spouse, which is immune as against the claims and objections of creditors or other beneficiaries of the estate. [Nelson v. Troll, 173 Mo.App. 51, 156 S.W....
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