Osborn v. Osborn, 7288

• Decision Date: 07 December 1954
• Docket Number: No. 7288,7288
• Citation: 241 Mo.App. 1175,274 S.W.2d 32
• Parties: Carrold OSBORN and Ormond A. Osborn, Respondents, v. Zetta OSBORN, Appellant.
• Court: Missouri Court of Appeals

Page 32

274 S.W.2d 32

241 Mo.App. 1175

Carrold OSBORN and Ormond A. Osborn, Respondents, v. Zetta OSBORN, Appellant.

No. 7288.

Springfield Court of Appeals, Missouri.

Dec. 7, 1954.

Helen E. Redding, Joplin, for appellant.

Tatum & Wise, Joplin, for respondent.

McDOWELL, Presiding Judge.

This appeal is from a judgment of the Circuit Court of Jasper County in an action seeking to sell real estate in which defendant had a homestead and dower interest, and and to apportion the proceeds according to the respective rights of the parties. It is a statutory action brought under the provisions of section 513.525 RSMo 1949, V.A.M.S., formerly section 618 RSMo 1939.

The petition states that Earl Osborn of Joplin, Missouri, died intestate January 30, 1950, leaving as his only heirs, plaintiffs, children by a former marriage, and his widow, the defendant; that defendant and the deceased had no children.

It stated that Earl Osborn died seized of a city lot in Joplin; that upon his death the property descended to plaintiffs, subject to the defendant's homestead, share and share alike; that defendant's dower nor homestead had been assigned or set off to her; that the real estate was occupied by defendant and deceased as a homestead and that defendant has continued to claim and occupy the same as her homestead and right of quarantine; that said real estate exceeds the value of $1,500 as prescribed and set out in section 608 Mo.Rev.Stat.1939, now section 513.475; that a severance of the homestead would greatly depreciate the value of the residue of the premises and would greatly inconvenience the plaintiffs herein.

The prayer is for relief in accordance with the provisions of section 513.525 RSMo 1949, V.A.M.S., that the Court order a sale of the whole premises and apportion the proceeds between the parties plaintiffs and defendant as their respective interests may appear and make such other orders in the premises as shall be equitable and needful

The amended answer admits most of the allegations of the petition. It is admitted that defendant's dower nor homestead interest has not been assigned but alleges that defendant is making application to the court for such assignment. It is admitted that defendant is occupying the premises and that she is administratrix of the estate of her deceased husband and denies each and every other allegation of the petition.

Section 513.525 RSMo 1949, V.A.M.S., under which this action was brought, reads:

'Whenever any dwelling house, outbuilding and the land in connection therewith in which a homestead shall exist, shall exceed the respective value mentioned in section 513.475, and a severance of such homestead would greatly depreciate the value of the residue of the premises, or be of great inconvenience to the parties interested either in such residue or in such homestead, either party may apply to the circuit court by petition, setting forth the facts, for relief; and upon the hearing of such petition, if it shall appear that such homestead cannot be occupied in severalty without great inconvenience to the parties interested in such homestead or in such residue, the court may order such homestead to be transferred to such other parties, and the payment of the value of the homestead interest to the owner thereof; or, at the option of such owner, may order such other parties to transfer such residue to him, and order him thereupon to pay such other parties the value thereof, to be fixed by the court; or, if the case require it, the court may order a sale of the whole premises, and apportion the proceeds between the parties; and such court may make all such orders in the premises as shall be equitable and needful.'

This is the second time this cause has been appealed to this court. On the first appeal we held that the judgment in the lower court was not final, and the appeal was premature. See Osborn v. Osborn, Mo.App., 252 S.W.2d 837.

In the first appeal our opinion recites the evidence in the case. Since the issues raised here involve questions of law we will not restate the evidence except as to additional evidence offered at the second trial.

The court's judgment is as follows:

'The court doth further find that Earl Osborn, deceased, died intestate on the 30th day of January, 1950, leaving surviving him as his only heirs at law the plaintiffs, Carrold Osborn and Ormond A. Osborn; that defendant, Zetta Osborn, is the widow of deceased; that plaintiffs are the children of said deceased by a former marriage; that defendant and said deceased had no children by their marriage; that said deceased died seized of an estate of inheritance, to-wit; an estate in fee simple, in the following described real estate situated in the County of Jasper and State of Missouri, to-wit:

'All of lot numbered forty-six (46) in Murphy's First Addition to the City of Joplin; that upon the death of said decedent, the said real estate descended, subject to defendant's homestead rights, and further subject to defendant's dower rights, if any such there be over and above defendant's homestead rights, unto the plaintiffs, share and share alike; that neither defendant's homestead nor dower have been set off to her; that said real estate was occupied by said decedent and defendant as their homestead during the life of said decedent, and that defendant has continued to claim and occupy the same as her homstead since the death of said decedent; that said real estate, consisting of a dwelling house, out-building, and the land connected therewith, exceeds the homestead value of $1,500.00 prescribed and set out in Section 513.475, Mo.R.S.1949 [V.A.M.S.]; that defendant was born July 9, 1900, and that her 50th birthday was the birthday closest in time to January 30, 1950.

'That a severance of homestead in said real estate would greatly depreciate the value of the residue of the premises, and would greatly inconvenience the plaintiffs herein, and it further appearing to the court that said homestead cannot be occupied in severalty without great inconvenience to the parties; and it further appearing that decedent at the time of his death owned no other real estate in the State of Missouri;

'And it further appearing that defendant may be entitled to some dower interest in said real estate over and above her said homestead interest;

'It Is Now Therefore Ordered, Adjudged and Decreed that Don Long, Walter Brown, and Floyd Lyons be and are hereby appointed commissioners and appraisers for the purpose of appraising the value of said real estate herein above described, and said commissioners and appraisers are hereby ordered to appraise said real estate and to determine the value of defendant's dower therein, using as a basis therefore the annuity tables set out in Section 442.530 to 442.550 inclusive, Mo.R.S.1949 [V.A.M.S.], and the age of 50 years, but they shall diminish the value of such dower by the value of the said homestead to be so determined on a basis of $1,500.00 as aforesaid; and if the commissioners and appraisers shall find that the interest of the widow-defendant in such homestead shall equal or exceed one-third interest in said real estate for and during defendant's natural life, no dower interest shall be ascertained for said defendant; and said commissioners and appraisers are further ordered to report to this court, in writing, duly verified, their said findings as herein above required, and said appraised value of said real estate as found by them shall be the value of said real estate as determined by this court; and it is further ordered that each of said commissioners and appraisers shall be allowed the sum of $10.00 per day for his services as such commissioner and appraiser therein, and that such shall be taxed as costs of this action;

'And it is further ordered, adjudged and decreed that after said commissioners report shall be filed herein, plaintiffs and defendant shall have 30 days to file their exceptions thereto, if any, in writing, and if there be no such exceptions so filed, or if so filed, and overruled, plaintiffs shall transfer their interest in said real estate by their properly executed and acknowledged deed to defendant, if defendant shall, within 30 days after the approval of the report of said commissioners and appraisers by the court, pay into court the value of said real estate as appraised by the said commissioners and appraisers as aforesaid, less the amount by which defendant's dower interest in said real estate, if any, to be appraised and determined as aforesaid shall exceed the said sum of $1,500.00, if any such dower interest there shall be therein over and above the value of $1,500.00; and that the amount so paid into court shall be distributed as follows, to-wit:

'(a) first the costs of this action shall be paid therefrom;

'(b) next the sum of $1,500.00, representing the value of the homestead of defendant in said real estate, shall be paid into the hands of William C. Myers, Jr., who is hereby appointed, to act as trustee of said fund, and that said trustee pay over the income arising from the said fund, after deducting such charges and expenses in connection therewith as may from time to time be allowed said trustee, unto defendant for so long as said defendant shall live or until her remarriage, and upon defendant's death or remarriage, all of her interest in the income of said fund shall cease; and upon the death or remarriage of said defendant, the principal of said trust fund shall be delivered, share and share alike, unto plaintiffs, or their personal representatives; and

'(c) after the payment of the costs and expenses of this action, and after the impounding of said $1,500.00 trust fund herein above provided, the balance of said amount so to be paid into court by defendant as aforesaid shall be distributed between the plaintiffs, share and share alike;

'Provided, However, that if defendant shall not so pay into court the value of said real...