Norton v. Thompson

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: Norton v. Thompson, 68 Mo. 143 (Mo. 1878)
• Decision Date: 31 October 1878
• Parties: NORTON v. THOMPSON, et al., Appellants.

68 Mo. 143

NORTON

v.THOMPSON, et al., Appellants.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.

Crosby Johnson for appellants, argued that the circuit court erred in holding that the judgment of the probate court could be collaterally impeached by awarding to the widow what had been adjudged to the heirs, citing State v. Todd, 57 Mo. 217; Lewis v. Williams, 54 Mo. 200; Brent v. Grace, 30 Mo.253; Mitchell v. Williams, 27 Mo. 399; Picot v. Bates, 47 Mo. 390; Acock v. Acock, 57 Mo. 154; Dilworth v Rice, 48 Mo. 124; Henderson v. Henderson, 55 Mo. 535; Freeland v. Wilson, 18 Mo. 380; Bigelow on Estoppel, 159, 160; Loring v. Steineman, 1 Met. (Mass.) 204; Greenabaum v. Elliott, 60 Mo. 25; Townsend v. Townsend, 60 Mo. 246; Patee v. Mowry, 59 Mo. 161; Aurora City v. West, 7 Wall. 82; Hickerson v. Mexico, 58 Mo. 61; Taylor v. Hunt, 34 Mo. 207; also in holding that the widow was entitled to one-half of the personal estate as dower, although she had not made or filed an election as required by the statute, citing Rev. Stat. 1855, §§ 5, 8, 10, p. 669; Bryant v. Christian, 58 Mo. 98; Price v. Woodford, 43 Mo. 247; Ewing v. Ewing, 44 Mo. 23; also in holding that the widow was entitled to her absolute property out of the estate, notwithstanding she made no application therefor until long after the estate had, under the order of the probate court, been distributed, citing Rev. Stat. 1855, §§ 33, 34, p. 134; also in holding that the statute of limitations was not a bar to plaintiffs' cause of actione citing Easton v. McAllister, 1 Mo. 662; Rev. Stat. 1855, §§ 30 to 34, pp. 133, 134; Hastings v. Meyers, 21 Mo. 519; Bryant v. McCune, 49 Mo. 546; Cummings, 51 Mo. 261; George v. Dawson, 18 Mo. 407; State v. Thornton, 56 Mo. 325; State v. Matson, 44 Mo. 305; Johnson v. Smith, 27 Mo. 591; State v. Willi, 46 Mo. 236; also in rendering judgment against the defendants severally requiring them to pay over a certain proportion of the sums received by them. If the petition had sought to charge defendants severally, it would have been demurrable. As it was originally framed, the assault on the order of distribution was the bond of unity, and made all the parties named as defendants necessary and proper parties, but the moment that feature was abandoned the unity was gone, the actions were several, and the judgment became erroneous.

C. S. McLaughlin for respondents.

1. The statute of limitations could not commence running against the demand of the widow at all until the final settlement, which was made in 1866, and she being a married woman at that time, limitation was no bar.

2. The cause of action did not accrue to any person who had capacity to sue until an administrator of Joseph Thompson, the deceased distributee, had been appointed. Dillon v. Bates, 39 Mo. 292; Reilly v. Chouquette, 18 Mo. 220; Angell on Lim., (5 Ed.) p. 45.

3. This action was properly brought. 39 Mo. 301. Under section 5 of the dower act the wife was entitled to one-half of all of the personal estate belonging to Joseph Thompson. She was also entitled to $200 as her absolute property. Under sections 9 and 10 of the dower act, she was not required to make her election until letters of administration had been granted. The defendants obtained possession of plaintiff's money either through mistake or fraud, and in either event would be treated as trustees holding the money in trust for the plaintiff. If the court erred in dismissing as to Richard Thompson, former curator, this error cannot be taken advantage of, under our statute of jeofails, after judgment rendered.

NAPTON, J.

The facts of this case are somewhat anomalous, and present questions which this court has not heretofore had occasion to examine.

In 1861, a lady, whose maiden name is not stated in the record, was married to a young man named Joseph Thompson, who was a minor at the time of the marriage, and whose estate was under the curatorship of R. S. Thompson. In 1862 the husband died, being still in his minority, leaving no children and no debts. In 1864 the widow married Wm. Norton, who, along with his wife, are plaintiffs in this case. In 1866 the curator made a settlement of his curatorship before the proper court, reporting a balance on hand of $351.84, and by order of the court, he distributed this sum among the heirs of his deceased ward, who were his mother, brothers and sisters, and who are defendants in this action. This suit was commenced in 1873, and seems to have had in view, originally, the annulment of this settlement in 1866, on the ground of fraud, but ultimately the case was dismissed as to the curator--an agreement was made between the parties that there was no fraud--and the plaintiffs claimed merely a right to recover from the defendants money had and received by them, to which the plaintiff, Wm. Norton, was entitled. The plaintiffs obtained a judgment for a sum equal to the $200 allowed her by the administration law and one-half of the remainder of the personalty claimed under the dower law, or in other words, $275.92 of the $351.84 which had been distributed among the defendants as heirs of Joseph Thompson.

1. ADMINISTRATION OF ESTATE OF A MARRIED MINOR: rights of the widow: guardian.

The apparent hardship of a decision of this case, one way or the other, is traceable, in our opinion, to a misconstuction of the 34th section of the act concerning guardians and curators; (Rev. Stat. 1855, p. 829): a misconstruction, which seems to have been adopted quite naturally by the probate court and the curator, and acquiesced in by all parties concerned. That section provides that “whenever a minor, having a guardian or curator, dies possessed of property, real or personal, no letters of administration shall be granted on such estate, except as provided in the next succeeding section, (which is, where the minor leaves debts or a will,) but the county court shall proceed to distribute the personal estate among those interested by ordering the same to be paid over by the guardian or curator to the distributees.” Was this section designed to include a minor who was a married man? Its terms are unquestionably broad enough to embrace all minors, married or unmarried, but it will be apparent on an examination of other statutes in the same code, that if the section is held to include married minors we must conclude that the Legislature intended either to prohibit or ignore all marriages of males under 21, or to debar the widow of a minor from any dower in personalty, and deprive her of the benefit of all provisions made for the benefit of widows generally in the administration law.

Our statute concerning marriages concedes the validity of marriages between minors, when made with the consent of parents or guardians. Whether they would not be valid without such consent is a question not necessary to be discussed, since the marriage in this case is admitted to have been a valid one. It does not appear from the record what was the age of either party, except that the husband was under 21. We may assume that the 34th section of this act concerning guardians and curators did not intend to prohibit the marriage of a male minor.

Let us then examine the provisions in the dower law, and see what provision is made for his wife, in case of his death whilst still a minor. The 1st section declares that every widow shall be endowed of a third part of her husband's real estate for life. The 5th and 7th sections provide that when the husband dies without children, the widow shall be entitled to one-half of the husband's real and personal estate, absolutely, subject to debts, and the 8th section requires the widow in cases of this sort to make her election, whether she will take, under the 1st section, discharged of debts, or under the 5th section, subject to debts. The 9th and 10th sections then point out how this election is to be made, and are as follows: “Section 9. When a widow shall be entitled to dower, as provided by the four...