Schweer v. Schweer

• Decision Date: 07 October 1935
• Docket Number: No. 5577.,5577.
• Citation: 86 S.W.2d 969
• Parties: SCHWEER v. SCHWEER.
• Court: Missouri Court of Appeals

86 S.W.2d 969

SCHWEER v. SCHWEER.

No. 5577.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court, Maries County; Nike G. Sevier, Judge.

"Not to be published in State Reports."

Suit by Maggie Schweer against August Schweer. Judgment for defendant, and plaintiff appeals.

Affirmed.

John P. Peters, of Linn, and Irwin & Bushman, of Jefferson City, for appellant.

H. P. Lauf and John O. Bond, both of Jefferson City, and Leslie B. Hutchison, of Vienna, for respondent.

ALLEN, Presiding Judge.

This proceeding was instituted by the appellant as plaintiff, by filing her petition in the circuit court of Maries county, Mo., on the 5th day of June, 1934, which petition, omitting caption and signatures, is as follows:

"Your petitioner Maggie Schweer, widow and relict of F. W. Schweer, deceased, late of Maries County, Missouri, would most respectfully represent and show to the court that the said F. W. Schweer departed this life in Maries County, Missouri, on the ____ day of October, 1930, intestate; and leaving him surviving the defendants August Schweer, Minnie Gieck, Amelia Francis, Emma Eads, Wilber Schweer, all adults and children of said F. W. Schweer and your petitioner, and Victoria Ebker, Bernice Ebker, and Junita Ebker, who are grandchildren of said F. W. Schweer and your petitioner — being children of a deceased daughter, who intermarried with Phillip Ebker, and who reside in Gasconade County, Missouri, and for whom said Phillip Ebker has been duly appointed as guardian and curator by the Probate Court of Gasconade County, Missouri: That at the time of his death the said F. W. Schweer was seized and possessed and the owner in fee of the following described real estate, situate, lying and being in the County of Maries and State of Missouri, to-wit: The south half and that part of the south half of the north east quarter south of the County road, of Section twenty-one (21) the west half (less 9.52 acres) of the north east quarter of the north east quarter and the west half of the north east quarter of Section twenty two (22), the north half (less 72 acres off of the east side) and the south west fractional quarter, north of the Gasconade River of Section twenty-eight (28) and the north east fractional quarter and the south half of the north west fractional quarter, both north of the Gasconade River, and three and thirty-four hundredths (3.34) acres, part of the north west quarter of the northwest quarter of Section twenty nine (29) all in Township forty one (41) of Range eight (8) west of the 5th principal meridian, containing 1305.57 acres more or less, all in Maries County, Missouri; less the following described tracts of land which is included in the above and which has been heretofore set off to your petitioner for her homestead, to-wit: The West 60 acres of the east one half (1/2) of the south west quarter, and the north west quarter of the south west quarter and the north half of the south west quarter of the south west quarter, all in Section twenty one (21), and the north east quarter of the north west quarter of section twenty eight (28) except five acres rectangular in shape in the north east corner thereof being 110 yards wide east and west and ten chains long north and south, and one acre more or less in the west part of the north west quarter of the north east quarter of Section twenty-eight described as follows: Beginning at a black hickory tree about 20" in diameter north, 15 east 378 feet, thence west 180 feet to the north south subdivision line, more or less between the east and west half of Section twenty-eight (28) thence south along said subdivision line 365 feet, thence east 88 feet, more or less to the place of beginning, all in Township forty one (41) of Range Eight (8) Maries County, Missouri, and containing in all one hundred fifty six acres more or less and which is now occupied as a homestead by your petitioner, Maggie Schweer: That soon after the death of decedent, F. W. Schweer this petitioner and all adult heirs of deceased, waived their right to administer said estate, and defendant Leslie B. Hutchison, qualified as administrator of said estate and proceeded to the administration thereof, and that in the course of the administration thereof, said administrator counseled with the said widow this petitioner and she with him, as to her then subsisting and existing rights and interest in the real estate of deceased, and said administrator being an attorney at law and learned in the law, advised this petitioner of her alternative right of dower in said lands, and the alternative of her right of election to take a child's share in said real estate subject to payment of the debts of said deceased husband, F. W. Schweer; That said administrator on or about the 7th day of May, 1931, and previous thereto, discussed with the petitioner herein her said rights in said real estate, and informed and told petitioner that there were no demands filed against said estate, other than the usual demands for funeral and burial expenses and expenses of the last illness of deceased, that the petitioner relied upon said statements, so made and believed there were no other demands filed against said estate, that the administrator informed petitioner, that deceased was not otherwise indebted, and gave her to understand and believe upon the whole matter, that if petitioner elected to take a child's part in the real estate subject to debts, that in no event would the real estate have to be sold to pay debts, that petitioner relied upon said statements and representations, and believed them to be true, and that thus and therefore the petitioner did not know, and was thus prevented from knowing that a great number of demands were filed against the estate, and that decedent was indebted, to a great extent, for which indebtedness demands could be filed against the estate, and acting upon the said mistake of fact, and through mistake of the facts aforesaid, relinquished her dower right of the one third part to hold and enjoy during her natural life, and elected to take a share in said real estate equal to the share of a child; that said election was made by petitioner on the 7th day of May, 1931. That demands have been presented against said estate and allowed, in such amount and to such extent, that unless relief is given this petitioner, the whole of the real estate owned by decedent at his death, will be taken and required to be sold for the payment of the debts of the decedent, in the Probate Court of Maries County: That plaintiff, this petitioner has no adequate remedy at law, in the Probate Court of Maries County, Missouri, and therefore prays this honorable Court as a Court of Equity and good conscience, to cancel, annul and set aside her said election to take a child's part so made by her, and to hold it for naught, and that three commissioners be appointed by this Court, to proceed to the premises hereinbefore described, and set out and admeasure to petitioner her dower of the one third part in said lands (including her homestead heretofore set out) to hold and enjoy for and during her natural life and for all other proper relief in the premises."

To which petition defendant, Hutchison, the administrator of the estate of F. W. Schweer, deceased, demurred as follows:

1st. "That the petition of the plaintiff in the above entitled cause does not state facts sufficient to constitute a cause of action against this defendant."

2d. "That the petition of the plaintiff in the above entitled cause states facts upon which the face of the petition shows that plaintiff does not have legal capacity to sue."

The demurrer was by the trial court sustained, from which order plaintiff appealed to this court.

The facts in this case are, we think, correctly stated by respondent, as follows:

That one F. W. Schweer died intestate in Maries county, Mo., on the 18th day of October, 1930. That he left as heirs to his estate his widow, the plaintiff, and the several children and grandchildren, named in the petition.

That the petition of appellant shows by agreement between all the parties, Leslie B. Hutchison of Vienna, Mo., a lawyer, was appointed by the probate court of Maries county as administrator of the estate of F. W. Schweer, deceased.

That the petition herein was filed by appellant in the circuit court of Maries county, Mo., and was returnable to the September term, 1934, of the circuit court of said county. That the filing of this case occurred more than three years after appellant had made her election, in probate court, under the provisions of section 329, R. S. Mo. 1929 (Mo. St. Ann. § 329, p. 216).

From the record in this case, it appears that no pleadings were filed in behalf of the defendant, with the exception of the administrator, Leslie B. Hutchison.

The petition also shows that F. W. Schweer, at the time of his death, was possessed of a large amount of real estate, and that the homestead, containing 156 acres more or less, was set off as a homestead to the widow, this appellant.

Appellant's petition further alleges that within one year, allowed under the law, a large number of claims were filed and allowed against the estate of F. W. Schweer, deceased, and that, in order to pay the debts of deceased, it would be necessary to sell the real estate.

The petition also shows upon its face that appellant was duly advised by the administrator, Mr. Hutchison, of her alternative right of election to take a child's part, subject to the payment of the debts of deceased, or, in lieu thereof, her dower right. The petition alleges no fraudulent statements to have been made by the administrator, nor does it charge either fraud or deceit against said administrator, nor does the petition allege that petitioner (appellant) made any investigation to ascertain the condition of said estate at the time she made her election, and that, when she made her said election, there were...