Schaper's ex'R v. Schaper

• Decision Date: 30 June 1911
• Citation: 158 Mo. App. 605,138 S.W. 896
• Parties: SCHAPER'S EX'R v. SCHAPER et al.
• Court: Missouri Court of Appeals

138 S.W. 896

158 Mo. App. 605

SCHAPER'S EX'R v. SCHAPER et al.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

1. DESCENT AND DISTRIBUTION (§ 52) — SHARE OF WIDOW.

Though a widow by Rev. St. 1909, § 349, takes a child's share in her deceased husband's estate, she takes the share of a child in respect to quantity only, and does not take in the character and capacity of a child.

2. DESCENT AND DISTRIBUTION (§ 109) — RIGHTS OF WIDOW — HOTCHPOT — "PARCENER."

Rev. St. 1909, § 349, declares, that, when a husband or wife dies leaving a child or children or other descendants, the widow or widower shall be entitled absolutely to a share in the personal estate belonging to the husband or wife at the time of his or her death, equal to the share of a child. Section 337 provides that where any of the children of an intestate who shall have received in his lifetime any real or personal estate by way of advancement shall choose to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended. Held that, while a widow is entitled to a child's share in her deceased husband's estate she is not a "parcener" within section 337, so as to entitle her to compel children to whom advancements have been made to bring such advancements into hotchpot in determining the amount to which she was entitled as a child's share, under section 349.

Appeal from Circuit Court, Lincoln County; Jas. D. Barnett, Judge.

Action by Mary Schaper's Executor against John H. Schaper and another, as administrators of the estate of William Schaper, deceased. Judgment for defendants, and plaintiff appeals. Affirmed.

Taylor R. Young and Avery, Young & Woolfolk, for appellant. Jesse H. Schaper and Chas. Martin, for respondents.

REYNOLDS, P. J.

William Schaper died intestate in Lincoln county sometime in the year 1905, leaving a widow and seven children. John and Frank Schaper were appointed administrators of his estate by the probate court of that county. In due course of administration, these administrators filed their second annual, that also being their final, settlement of their administration of the estate, and on that the probate court ordered distribution of the funds in the hands of the administrators. In due time and during the term at which this annual settlement was filed and approved, the residue in the hands of the administrators being divided into eight parts. Plaintiff, the widow of William Schaper, filed her exceptions to the settlement and order of distribution, her exceptions grouped into three clauses: First, that the order of distribution was erroneous in failing to charge the children of William Schaper with what were claimed to have been advancements made by him to them in his lifetime. Second, because no allowance in lieu of a year's provision not on hand at the time of the death of her husband had been made by the administrators in favor of the widow. The third clause of the exceptions attacks certain deeds alleged to have been executed by William Schaper and his wife, conveying certain lands to the various children, claiming that while they were advancements and she had joined in the deeds, Mrs. Schaper was not able to read or write, and did not know that any specific consideration was mentioned in the deeds until after the death of her husband; that she had not acknowledged the same; that the consideration stated in them is not the real value of the property and that no consideration had been in fact paid. Wherefore she prayed that an order be entered by the court directing the administrators to take into account and consider the value of these lands, include that value in the estate to be distributed, charge each of said children with the value of the lands so received by each, and that the interest of the parties and heirs be then apportioned accordingly, one-eighth to each child and one-eighth to her, as widow, and that an order of distribution be made in conformity therewith; also that she be allowed a sufficient sum in money in lieu of one year's provisions in the way of meats, provisions, etc., not on hand at the time of her husband's death and necessary for her subsistence for one year. The probate court disallowed all these exceptions. The widow in due time appealed to the circuit court where on a trial anew the first and third exceptions were overruled and on the second exception the circuit court allowed the widow $125 in lieu of provisions not on hand, etc. From this the widow duly appealed to this court. Pending the determination of the appeal, she died and her executor has been duly substituted in her place.

In the language of the learned counsel for appellant, "the only question to be determined on this appeal is whether the widow is a `parcener' within the meaning of that term in the `hotchpot' statute, section 337, R. S. 1909. If she is, the judgment of the trial court should be reversed with directions, and if she is not, then the judgment of the trial court should be affirmed."

Those counsel make two points in support of their contention: First, that pla...