Strauch v. Uhler

Decision Date30 June 1905
Docket Number14,269 - (100)
Citation104 N.W. 535,95 Minn. 304
PartiesGENEVIEVE STRAUCH v. J. P. UHLER
CourtMinnesota Supreme Court

Upon the application of Genevieve Strauch, widow of John L Strauch, deceased, the probate court for Ramsey county made an order allowing $200 per month for the maintenance and support of petitioner and her children pending the settlement of the estate, such allowance to continue only for one year in the event of the estate proving insolvent. From this order, defendant J. P. Uhler, a creditor of deceased appealed to the district court for that county. The case was tried before Kelly, J., who found in favor of plaintiff affirming the order of the probate court. From a judgment entered pursuant to the findings, defendant appealed to the supreme court. Reversed and new trial ordered.

SYLLABUS

Widow's Allowance.

Under section 4477, G.S. 1894, as amended by chapter 334, p. 581, Laws 1903, and section 4493, G.S. 1894, the allowance for support of the family of a deceased person may be made by the probate court before the return of the inventory and appraisement.

Appeal to District Court.

Upon an appeal from the probate court from an order making such allowance, the district court should try the cause de novo, in the same manner as if originally commenced in that court, and not merely review the propriety of the order appealed from upon the return of the probate court.

Evidence.

In making such allowance, while some regard should be had to the situation in life and previous manner of living of the surviving family, its extent should be primarily determined by the value of the estate and the amount of claims against it. Evidence showing the then financial condition of the estate is admissible.

John C. Mangan, for appellant.

Geo. C. Lambert, for respondent,

OPINION

JAGGARD, J.

John L. Strauch died intestate in St. Paul on June 11, 1904. Special letters on his estate were granted June 21, 1904, to Eva G. Strauch, his sister, who for many years, and up to the time of his death, had acted as his bookkeeper, cashier, and confidential clerk, and was intimately acquainted with the nature of the assets. This special administratrix on July 25, 1904, made and filed a detailed inventory of the assets of the estate, separating the good, doubtful, and bad, and, after charging the doubtful and bad assets to loss and gain account, and deducting the same, stating the amount of personal property of the estate to be $40,800.17. The essential features of this inventory were not embodied in the paper book, but fragments of it were blended with the subsequent account filed by the administratrix July 25, 1904. In her final account, filed July 25, 1904, the special administratrix, after paying over $1,747.96 to the general administratrix, charges herself with other personal property ready to be turned over to the amount of $39,009.11. General letters of administration were issued to Genevieve Strauch, widow of deceased, on July 11, 1904.

On July 25, 1904, upon the widow's petition, and upon due notice to appellant's counsel, who was present at the hearing, and presented evidence on behalf of appellant, the probate court made its order allowing the widow $200 per month, to commence June 12, 1904. This allowance was to continue until the estate should be fully settled, unless the estate should prove insolvent, in which case the allowance should continue for one year from June 12, 1904. Thereafter, and on August 18, 1904, appellant for the first time filed proof of his claim. On August 22, 1904, he appealed to the district court from the order of the probate court making the allowance to the widow. The general inventory and appraisement were filed October 13, 1904. The case was tried on appeal in the district court. The district court found as a fact that the sum of $200 was a reasonable and necessary amount for the support and maintenance of said widow, constituting the family of said deceased, during the settlement of said estate, and that the assets in the hands of the administratrix of said estate were ample and sufficient to defray the allowance, subject to the limitations contained in the order of said probate court. The order of the probate court was affirmed by the district court. The present appeal is taken from the judgment entered accordingly.

1. The probate court was justified in making the allowance for the support of the family of the deceased before the return of the inventory and appraisement. Section 4477, as amended by chapter 334, p. 581, Laws 1903, provides in part that:

When any person dies possessed of any personal estate, or of any right or interest therein, the same shall be applied and distributed as follows:

1. The widow shall be allowed all the wearing apparel of her deceased husband; his household furniture, to be selected by her, not exceeding in value five hundred dollars; other personal property, to be selected by her, not exceeding in value five hundred dollars; and such allowances shall be made as well when the widow receives the provisions made for her in the will of her husband, as when he dies intestate. * * *

3. The widow or children, or both, constituting the family of the deceased, shall have such reasonable...

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