Schaper v. Schaper
| Decision Date | 30 June 1911 |
| Parties | MARY SCHAPER'S Executor, Appellant, v. JOHN H. and FRANK SCHAPER, Administrators, Respondents |
| Court | Missouri Court of Appeals |
Argued and Submitted June 5, 1911
Appeal from Lincoln Circuit Court.--Hon. James D. Barnett, Judge.
Judgment affirmed.
Taylor R. Young and Avery, Young & Woolfolk for appellant.
(1) Plaintiff as the widow of William Schaper, Sr., deceased, is entitled to a child's share in the estate of the said William Schaper, deceased. Sec. 349, R. S. 1909. This interest of the widow in the deceased husband's estate is precisely the same as the interest of a child therein. Cox v. Gun, 3 Mo.App. 348. (2) Plaintiff is a parcener within the meaning of the term parcener as set out in section 337, Revised Statutes 1909. In re Estate of Wilson, 98 Mo. 379; (overruling In re Elliott's Estate v. Wilson, 27 Mo.App. 218); Estate of Williams 62 Mo.App. 339; In re Estate of St. Vrain, 1 Mo.App. 294.
Charles Martin and Jesse H. Schaper for respondents.
(1) By section 349 (concerning dower), Revised Statutes of Missouri 1909, the widow of a husband who dies, leaving a child or children or other descendants, is endowed in the personal estate of such husband, but she is endowed in such personal estate only as he owned at the time of his death. And inasmuch as the plaintiff, as the widow of William Schaper deceased, has been given her full dower under this statute in the course of the administration had in the probate court she is entitled to nothing more. (2) The law of hotchpot is only applicable as between children or grandchildren of intestates--is not made in favor of the widow, and such children are not bound to bring advancements into hotchpot as between them and the widow. McReynolds, Ex'r, v. Gentry, Adm'r, 14 Mo. 495; Johnson v. Antriken, 205 Mo. 244.
William Schaper died intestate in Lincoln county some time 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 was 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,
Those counsel make two points in support of their contention: First, that plaintiff, as the widow, is entitled to a child's share (one-eighth), in the estate of her deceased husband under section 349, Revised Statutcs 1909, the interest of the widow, it is claimed, in the deceased husband's estate being precisely the same as the interest of a child therein. Second, plaintiff is a "parcener" within the meaning of the term "parcener" as that word is used in section 337, Revised Statutes 1909.
That plaintiff, as the widow of her deceased husband, is entitled to a child's share in his personal estate, under section 349 of our statutes, admits of no doubt. We cannot, however accede to the claim made by the learned counsel for appellant, that the interest of the widow in the deceased husband's estate is precisely the same as the interest of a child therein, nor do we think that the authority cited, Cox v. Dunn, 3 Mo.App. 348, sustains this proposition. She is entitled to it in respect to quantity: that is to an equal share with the child or children; but we do not understand Cox v. Dunn to hold that she takes in the character and capacity of...
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