Nelson v. Troll

• Decision Date: 08 April 1913
• Citation: 156 S.W. 16,173 Mo.App. 51
• Parties: QUINCY M. NELSON, Appellant, v. HENRY TROLL, Public Administrator, Respondent
• Court: Missouri Court of Appeals

156 S.W. 16

173 Mo.App. 51

QUINCY M. NELSON, Appellant, v. HENRY TROLL, Public Administrator, Respondent

Court of Appeals of Missouri, St. Louis

April 8, 1913

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

Reversed and remanded. (with directions).

Charles P. Comer for appellant.

(1) The finding and judgment of the circuit court is against the evidence, the weight of the evidence and the law under the evidence. 29 Cyc. 820; 29 Cyc. 832; Lawson v. Mills, 130 Mo. 170; Choquette v. Railroad, 152 Mo. 257; Roberts v. Tel. Co., 166 Mo. 370. (2) The judgment for the defendant on the counterclaim is not responsive to the issues made by the pleadings. 23 Cyc. 816; McLaughlin v. McLaughlin, 16 Mo. 202; Kyle v. Hoyle, 6 Mo 526; Smith v. St. Louis Tfr. Co., 92 Mo.App. 41; 23 Cyc. 820 (g); 23 Cyc. 833 (c). (3) Defendant's counterclaim does not state facts sufficient to constitute a cause of action against this plaintiff. 39 Cyc. 853-4; Young v. Rees, 145 Mo. 261; State v Dickmann, 146 Mo.App. 396; Bank v. Aull, 80 Mo. 199; Edmonson v. Kite, 43 Mo. 176; Cohen v. Kyler, 27 Mo. 122; Hood v. Mathis, 21 Mo. 308; Haumiller v. Ackerman, 150 Mo.App. 141; Starbuck v. Avery, 132 Mo.App. 542. (4) The sum awarded the widower as his allowance under the statute was inadequate and insufficient. Secs. 105-111, R. S. 1899; Secs. 114-120, R. S. 1909. (5) The probate court had no jurisdiction of the subject-matter of the counterclaim, therefore, the circuit court had none on appeal. Secs. 64-66, 120, 198, R. S. 1909; Eans v. Eans, 79 Mo. 53; Cummings v. Cummings, 51 Mo. 261; Garver v. Richardson, 77 Mo.App. 463; 1 Woerner's Amn. Law of Admn. (2 Ed.), pp. 171-173; Bryant v. McCune, 49 Mo. 547; Hasenritter v. Hasenritter, 77 Mo. 162; Secs. 64, 66, 114, 115, 116, 120, R. S. 1909.

E. P. Peers for respondent.

There is no question that respondent's counterclaim arose out of and was directly connected with the cause of action and was connected with the subject of the action; therefore it was properly allowed. Bowman v. Lickey, 86 Mo.App. 47; Miller v. Crigler, 83 Mo.App. 395; Mitchell v. Martin, 63 Mo.App. 560; Bealy v. Smith, 158 Mo. 515; In re Estate of Jarbor, 227 Mo. 59.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a claim on the part of the plaintiff widower for the statutory allowance and his absolute property in the estate of his deceased wife. Defendant is the public administrator in charge of the estate, and the proceeding originated in the probate court, from whence it found its way, by appeal, into the circuit court. Besides denying in toto plaintiff's right, defendant administrator filed a counterclaim in the probate court, by which he seeks to recover from plaintiff for withholding the property of the estate and using it in a boarding house after the death of the intestate wife and until the administrator came into possession. On a trial in the circuit court, without a jury, the court recognized and enforced plaintiff's statutory rights in part, but found for defendant and awarded a recovery on the counterclaim too, and from this judgment plaintiff prosecutes the appeal.

The principal questions for consideration are two in number and relate, first, to the identity of the right of the widower to have and enjoy the allowance and absolute property from his deceased wife's estate that she would enjoy in his estate as his widow, and then, too, as subsidiary to this, the amount to be allowed in money in lieu of the specific articles of property allowed the widow by statute, when such property has been sold by the administrator; and, second, as to the right of the administrator to recover through counterclaim from the plaintiff widower as for the use of the property of the estate, household furniture, etc., in a boarding house after the death of the wife and until it came into the possession of the administrator, when it appears the property was retained by the widower under an order of the probate court authorizing its retention for the reason the estate was adjudged not sufficient in value to justify an administration.

The relevant facts are, plaintiff's wife, Georgia Nelson, and he together maintained a boarding and rooming house in the city of St. Louis where they resided; but it appears that all the furnishings therein belonged to plaintiff's wife. This boarding and rooming house business occupied four separate residence buildings on Vernon avenue under the same management--that is, of plaintiff's wife and himself. Mrs. Nelson died on September 30, 1909, and it appears that her estate consisted solely of the furnishings in the four adjacent residences wherein the boarding and rooming house business was conducted. The entire estate, after being inventoried by the public administrator, was appraised at $ 770.45 but was afterwards sold by the administrator for $ 1350, and so it is plaintiff's claim now relates to his rights in this money realized by the administrator on the sale of the property.

On the 29th day of October, 1909, after the death of his wife, on September 30, plaintiff applied to the probate court, under section 10, Revised Statutes 1909, for an order to the effect that no administration should be had upon his wife's estate, for the reason that the estate was not greater in amount than is allowed by law as the absolute property of the widower, and the probate court, upon hearing the evidence, sustained his application and entered the order accordingly. Thereafter, plaintiff continued in possession of the property and conducted the boarding and rooming house as before for several months, until defendant public administrator took charge of the estate and proceeded to administer it. The precise date on which the public administrator interposed does not appear, but it does appear that he inventoried the entire estate on January 20, 1910, as a claim existing against this plaintiff for goods and chattels which was appraised at the value of twenty-five dollars. Afterwards, on April 8, 1910, the administrator made a supplemental inventory containing all of the items of the estate, which consists entirely of household and kitchen furniture, beds, bedding, etc., of the same character of goods, all of which were appraised, as before stated, at $ 770.45.

Plaintiff continued in possession of the property under the order of the probate court dispensing with administration for some time, and, at any rate, until about the time the administrator made and filed his inventory in April, 1910--that is, from the date of the death of his wife, September 30, 1909, to the early part of April, 1910, or a little more than six months. After the administrator came into possession of the property, he sold it all for $ 1350, and plaintiff filed his claim for his allowance and his absolute property in his wife's estate under the statute. By a stipulation on file and in the record, it is agreed between the parties "That whatever rights Quincy M. Nelson may have under and by virtue of the statutes of the State of Missouri as the husband of the said Georgia Nelson, deceased, to and in the estate and property of the said Georgia Nelson, prior to the said sale by the public administrator hereinbefore mentioned, shall attach to the proceeds of the said sale, and the said proceeds to stand in the lieu and stead of said property and apportioned accordingly. The administrator expressly denies that the said Quincy M. Nelson has any interest in the property above set out."

On these facts, the circuit court sustained plaintiff's claim both for an allowance and for his absolute property as follows: Under section 114, Revised Statutes 1909, which allows the widow to keep certain enumerated articles such as household, kitchen furniture, wearing apparel, provisions, etc., the court awarded plaintiff $ 100. It appearing in the case that there were no grain, meat, vegetables, groceries and other provisions on hand at the time of the death of Mrs. Nelson, the court allowed plaintiff as a reasonable appropriation out of the assets of the estate, to supply such deficiency, in accordance with section 115, Revised Statutes 1909, $ 100 for his one year's support. Under section 116, Revised Statutes 1909, the court allowed plaintiff $ 400, in addition to the above, on his right to take such personal property as he might choose, not to exceed the appraised value of $ 400. Thus it appears the court awarded to plaintiff a total allowance of $ 600 under the three sections of the statute above noted. At the same time, the court found for defendant on the counterclaim, while the estate was held by him, it is said in the judgment, "de son tort," in the sum of $ 400, and ordered that such amount should be set off against the allowance aforesaid, leaving a residue due plaintiff to the amount of $ 200 on account of his absolute property and household furniture, beds, bedding, etc., and in lieu of provisions.

There can be no doubt that error inheres in this judgment in several respects. The relevant statutes will be set out and noticed in their order; but, first, we will consider that which confers the same rights on the plaintiff widower in the estate of the deceased wife as are enjoyed by the widow in the husband's estate in event of his prior death. Section 120, Revised Statutes 1909, is as follows:

"If a wife shall die, testate or intestate, owning personal property in her own name, in addition to curtesy, her widower shall be allowed to keep as his absolute property all the articles and property, and be entitled to all the remedies and reliefs as relates to the deceased wife's property, as is now provided for the widow in the deceased husband's property, under and by virtue of sections 114, 115, 116 and 118."

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