Rodewald v. Rodewald

• Decision Date: 14 January 1957
• Docket Number: No. 2,No. 45209,45209,2
• Citation: 297 S.W.2d 536
• Parties: John RODEWALD and Fred Rodewald, Appellants, v. Christeena M. RODEWALD, Respondent
• Court: Missouri Supreme Court

Page 536

297 S.W.2d 536

John RODEWALD and Fred Rodewald, Appellants, v. Christeena M. RODEWALD, Respondent.

No. 45209.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1957.

Kearby & Scott, Poplar Bluff, for appellants.

Wangelin & Friedewald, Poplar Bluff, for (defendant) respondent.

BOHLING, Commissioner.

This review in final analysis presents for determination the effect of the sale of a homestead in the probate court for the payment of the allowance to the homesteader's widow for a year's support under Sec. 462.450, now V.A.M.S. Sec. 474.250, 474.260. (Statutory references are to RSMo 1949 and V.A.M.S A.M.S. unless otherwise indicated.) The litigants are the children of Albert J. and Edna Rodewald, now deceased. John and Fred Rodewald sued Christeena M. Rodewald. Plaintiffs' petition sought the cancellation of an administratrix's deed in the father's estate to the mother, Edna, and a deed from the mother to Christeena in one count, and the partition in equal parts of three parcels of land between the parties in the other count. The litigants asked that their rights, titles and interests in the real estate be determined. All of the land is situated in Township 23, Range 8, Butler county, Missouri. The father, at his death, held the title to the SW 1/4 of the SE 1/4 of Sec. 32 (the homestead, containing 40 acres, more or less) and to Lot 10 of the SW 1/4 of Sec. 34 (containing 27.70 acres, more or less); and he and his wife held by the entirety the NW 1/4 of the SE 1/4 of said Sec. 32 (containing 40 acres, more or less). The administratrix's deed conveyed said SW 1/4 of the SE 1/4 and said Lot 10 to the mother. The mother's deed conveyed said SW 1/4 of the SE 1/4 and said NW 1/4 of the SE 1/4 to the defendant, and defendant did not question plaintiffs' pleaded claim of title to said Lot 10. The chancellor found and decreed that the litigants each owned an undivided one-third interest in said Lot 10 and ordered the same sold in partition; and that defendant owned said SW 1/4 of the SE 1/4 and said NW 1/4 of the SE 1/4. Plaintiffs, on this review, claim error only in the ruling vesting title to said SW 1/4 of the SE 1/4, the homestead, in defendant, and present no issue respecting said NW 1/4 of the SE 1/4, held by the father and mother by the entirety. Plaintiffs contend the court was without jurisdiction to appoint the administratrix and her acts as administratrix were void, and that the mother held only a life estate, which was all that passed by her deed to defendant. We think the decree was correct.

Albert J. Rodewald died testate July 4, 1939, leaving his wife and the litigants, who were then of age, surviving. Edna died intestate March 16, 1954. By his will, Albert J. bequeathed and devised his estate, real and personal, to his wife for life with the remainder to their three children equally. He named his wife executrix. The will was probated December 21, 1940, and his widow duly qualified as executrix. Notice of letters of administration were published in January, 1941. The inventory and appraisal of the estate, filed February 1, 1941, valued said SW 1/4 of the SE 1/4 of Sec. 32 at $1,000 and said Lot 10 of the SW 1/4 of Sec. 34 at $280. The personal property was valued at $516.50.

At the February term, 1941, the probate court entered an order turning over to the widow, Edna Rodewald, the household and kitchen furniture of her deceased husband, and made an allowance to her of $1,200 for a year's support under Sec. 462.450, and of $400 under Sec. 462.460, now V.A.M.S. Sec. 474.250.

On March 20, 1941, Edna Rodewald filed her written resignation as executrix in the probate court and submitted her written account current for transfer settlement with her successor in the administration of her husband's estate. On March 29, 1941, C. M. Thomas qualified as administratrix, de bonis non with the will annexed, of the estate of Albert J. Rodewald, deceased. Christeena was at the time married to a Mr. Thomas, and C. M. Thomas and Christeena are one and the same person. Christeena, with her mother until her mother's death in 1954, has occupied the home place since Albert J.'s death. The plaintiffs lived near the home place. The record does not disclose any entry on the probate court records with respect to a publication of the widow's intention to resign as executrix as provided by Sec. 461.510; and it was admitted there was no such publication of her intention to resign. Fred and John knew Christeena had married Mr. Thomas. Fred knew about Christeena being appointed administratrix and had and made no objection thereto. The administratrix, upon petition and notice, sold the personal property at public vendue on April 12, 1941, at the home place. John knew Christeena had something to do with the administration of the father's eatate, 'didn't know what'; and was present at the sale of the personal property. The widow purchased the personal property at the sale for $186, which was charged against her $400 allowance.

On July 12, 1941, the administratrix filed her petition to sell said SW 1/4 and said Lot 10, or so much thereof as might be necessary, of the estate of Albert J. Rodewald, deceased, at private sale to pay the $1,200 theretofore allowed the widow under Sec. 462.450. Notice thereof was served upon John Rodewald and Fred Rodewald, and the other heirs and devisees of said deceased. Thereafter, and on September 22, 1941, in obedience to the order of court directing a sale at private sale, said administratrix sold said SW 1/4 to Edna Rodewald for the sum of $1,000, and sold said Lot 10 to Edna Rodewald for $280, and made report thereof to the court on said September 22, 1941.

Edna Rodewald paid said purchase price by executing three receipts to said administratrix, as follows: One acknowledging receipt of $1,000 on said allowance of $1,200 for support and maintenance under Sec. 462.450, being in payment for said SW 1/4, the homestead. The other two receipts were in payment for said Lot 10, not in question here, one being for the unpaid $200 of the $1,200 allowance, and the other being for $80 of the unpaid portion of the $400 allowance to the purchaser.

The administratrix's report of sale was approved on October 6, 1941; and on said date the administratrix made, executed and delivered to Edna Rodewald her deed conveying said SW 1/4 and said Lot 10 to said purchaser. This deed was recorded October 6, 1941. The report of sale and the deed recite that each parcel sold for its appraised value.

After publishing notice of final settlement and making proof thereof, the administratrix filed her final settlement of the administration of the Albert J. Rodewald, deceased, estate on May 27, 1942.

On January 23, 1954, Edna Rodewald deeded said SW 1/4 and said NW 1/4, the two 40 acre parcels, to Christeena M. Rodewald. The recited consideration was $1.00 and other good and valuable considerations.

Plaintiffs first say that the acts of the administratrix were void because Edna Rodewald failed to publish notice of her intention to resign as executrix in accord with Sec. 461.510; citing State ex rel. Russell v. Mueller, 332 Mo. 758, 60 S.W.2d 48, 50, 91 A.L.R. 705; and State ex rel. Ramsey v. Green, Mo.App., 17 S.W.2d 629, 635.

Section 461.510 provides for the publication once a week for four consecutive weeks in a newspaper of the county of a notice of the intention of an executor or administrator to resign. State ex rel. Russell v. Mueller, supra, was a proceeding in prohibition, relatrix contending that, while a public administrator had a right to resign, he having published his intention to resign and the probate court having accepted his resignation, the order accepting the resignation was not appealable. The preliminary rule in prohibition was quashed, the court holding that a creditor of the estate was entitled to have the action of the probate court reviewed on appeal, 60 S.W.2d loc. cit. 52. In State ex rel. Ramsey v. Green, supra, the executors of a decedent's estate filed their written resignation with the probate court without complying with Sec. 461.510 by publishing their intention to resign. The probate court accepted the resignation and appointed another as administrator, who qualified. However, at the same term, the probate court, upon being advised, revoked the order discharging the executors and revoked the order issuing letters of administration to their successor, 17 S.W.2d loc. cit. 631. Thereafter, the successor administrator secured the issuance of an alternative writ of mandamus in the circuit court to compel the probate court to order the executors to make final settlement and turn over to him the assets of the estate. In a proceeding in prohibition instituted in the court of appeals it was held that the probate court had jurisdiction to set aside and correct errors made during the term of court; and that the circuit court was without jurisdiction to proceed by mandamus to compel the probate court to perform a judicial act wholly within the judicial discretion of the probate court, 17 S.W.2d loc. cit. 636 the...