Nidy v. Rice, 17299.

• Decision Date: 07 December 1931
• Docket Number: No. 17299.,17299.
• Citation: 44 S.W.2d 196
• Parties: J.W. NIDY, APPELLANT, v. MASON S. RICE, RESPONDENT.
• Court: Missouri Court of Appeals

44 S.W.2d 196

J.W. NIDY, APPELLANT, v. MASON S. RICE, RESPONDENT.

No. 17299.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from the Circuit Court of Buchanan County. — Hon. J.V. Gaddy, Judge.

AFFIRMED.

W.M. Morton for respondent.

Sterling P. Reynolds for appellant.

ARNOLD, J.

This is an appeal from a decree of the circuit court of Buchanan county, Missouri, allowing the widower of decedent, Lulu J. Rice, the sum of $700, in lieu of grain, meats and other provisions necessary for the sustenance of himself and family for twelve months following decedent's death. The widower also was allowed, on application, $400, absolute property; but this allowance is not involved in this appeal.

The facts presented by the record are simple and may be stated as follows. Mason S. Rice is the widower of Lulu J. Rice, who died October 8, 1926, in Buchanan county, Missouri, Decedent left a will dated May 15, 1915, devising certain farm lands to her husband, respondent herein, and naming him as executor of the will, without bond. The widower applied to the probate court of said county for an allowance in lien of grain, meats and other provisions necessary for the sustenance of himself and family for twelve months. The application also included an allowance request in the sum of $400, absolute property. The probate court allowed claimant $720 for his first year's support and the item of $400 absolute property. From the allowance of $720 for maintenance, the appellant herein appealed to the circuit court, where, on trial de novo, he testified he was a brother of decedent. The court required an appeal bond in the sum of $100, which was filed and approved. Defendant then filed his motion to require plaintiff to file a sufficient appeal bond which said motion was overruled. On hearing in the circuit court, testimony was taken, resulting in a judgment for defendant, as follows:

"... the court finds that Mason S. Rice is the widower of Lulu J. Rice, who died in October, 1926; that there was no grain, meat, vegetables or groceries on hand at the time of her death and that the said Mason S. Rice is entitled to an allowance in lieu thereof by virtue of sections 105 and 106 of the Revised Statutes of Missouri, 1919, of seven hundred dollars.

"Wherefore, it is ordered, adjudged and decreed by the court that Mason S. Rice have and recover of and from the estate of Lulu J. Rice, deceased, the sum of seven hundred dollars as an allowance to the widower, Mason S. Rice, in accordance with sections 105 and 106 of the Revised Statutes of Missouri, 1919, and it is further ordered, adjudged and decreed that the clerk of this court transmit to the probate court of Buchanan county, Missouri, a certified copy of this order and judgment and that the costs hereof be taxed against said estate of said Lulu J. Rice."

A motion for a new trial was overruled and plaintiff appealed to this court, as above stated.

Before proceeding to a discussion of the merits of the appeal, it is necessary to dispose of defendant's motion to dismiss the appeal, filed September 30, 1931, on two grounds. (1) That plaintiff has failed and refused to file a bond for appeal from the order of the probate court as required by section 285, Revised Statutes 1919 (section 288, R.S. 1929); (2) that appellant, upon the face of the record, has no such interest as an heir, devisee, legatee, creditor or other person, in the estate under consideration, as to entitle him to maintain this appeal.

Sections 288 and 290, Revised Statutes 1929, determine against defendant's contention the point raised in the first objection named in the motion to dismiss the appeal. Section 288, in part, reads:

"Every such appellant shall file in the court the bond of himself, or some other person, in a sum and with security approved by the court, conditioned that he will prosecute the appeal, and pay all debts, damages and costs that may be adjudged against him."

And section 290, provides: "... but no appeal shall be dismissed in the appellate court for failure to file affidavit or bond, or because of a defective affidavit and a bond to the satisfaction of the court in which the appeal may be pending."

The record herein discloses the appeal bond in the sum of $100 was filed and approved by the probate court.

The second point raised in the motion to dismiss must necessarily be determined by our ruling on the merits. There are six assignments of error, and these are presented under eight sub-headings in the brief. It is first urged the circuit court erred in allowing the sum of $700, or any other amount to defendant because, under the law, he was entitled to none. It is argued defendant gets no right to any allowance under section 306, Revised Statutes 1929, and that under section 324, Revised Statutes 1929, of the dower act, he gets one-half of the estate subject to the payment of the debts of deceased; that there is no provision in the act for defendant to receive any part not mentioned in section 324, and therefore he takes no other. The statutes upon which defendant relies are as follows: Section, 105, Revised Statutes 1919 (106, Revised Statutes 1929), which reads:

"Articles allowed widower or widow as absolute property. In addition to curtesy and dower, the widower or widow shall be entitled to keep as his or her absolute property a family Bible and other books, not to exceed two hundred dollars; all the wearing apparel of the family, all implements and articles of domestic industry, all yarns, cloth and clothing made up in the family for their own use; all grain, meat, vegetables, groceries and other provisions on hand and provided and necessary for the sustenance of the widower or widow and family for twelve months; all household, kitchen and table furniture, including beds, bedsteads and bedding, not to exceed the value of five hundred dollars."

And section 106, Revised Statutes 1919 (107, Revised Statutes 1929), as follows:

"Property not on hand, court to make allowance. If the grain, meat or other provisions allowed the widower or the widow in the preceding section shall not be on hand at the time of the taking of the inventory, the court shall make a reasonable appropriation out of the personal assets of the estate to supply such deficiency; provided, that if there be not sufficient personal assets in the estate available for such purposes, then the court may order the administrator or the executor of said estate to mortgage for a term not exceeding one year, or to sell for cash, so much of the real estate of the deceased as may be necessary to pay said allowance, such sale to be made subject to any homestead rights in real estate, mortgaged or sold, and subject to any existing liens thereon, the sale so made to be conducted in the same manner and under the same proceedings as provided by law for sale of real estate of a deceased person to pay debts of the...