Whaley v. Whaley

• Decision Date: 31 October 1872
• Citation: 50 Mo. 577
• Parties: REBECCA WHALEY, Defendant in Error, v. FRANKLIN WHALEY et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

50 Mo. 577

REBECCA WHALEY, Defendant in Error,

v.FRANKLIN WHALEY et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to Marion Circuit Court.

Dryden & Dryden, for plaintiffs in error.

I. There was no warrant in law for the submission of the matters involved in the petitioner's application to a jury. The proceeding was unknown to the common law. It was not an action to recover money or property to which the petitioner had an antecedent right, or damages for the deprivation of any right, and it was therefore not a case for a jury. The petitioner's right wholly depends upon the exercise of the discretion of the court. It is the court that the law invests with the power, as well of determining what is a reasonable sum as of making the appropriation of that sum. (Wagn, Stat. 88, art. 2, § 34.)

II. The judgment rendered by the court is not such a judgment as the law warrants in the case. The petitioner is not entitled to have and recover of the executors. All she is entitled to is to have the assets in the hands of the executors appropriated; and, when so appropriated, the executors are justified by the order of appropriation in disposing of the trust funds as directed by the court having jurisdiction of them and of the trust funds.

III. The first instruction is false both in its premises and its conclusions. It is not true that the law gives to the widow the mansion house for one year. Until dower is assigned her she may remain in the mansion house, etc., free of rent (Wagn. Stat. 542, § 21), but dower may be assigned her the next day after her husband's death, and, when assigned her, her right to remain in the mansion house (unless it happen to be assigned to her) is at an end; nor is it true, as the instruction avers, that she is entitled to the necessary assistants to enable her to keep house and manage the farm. There is no law that enjoins upon her the duty either of keeping house or of running a farm; these she may do or abstain from at her own pleasure. She may assign her right to the possession of the mansion to another if she like. (Stokes v. McAllister, 2 Mo. 163.)

The premises being false, the conclusion--viz.: that the help referred to are members of the family of the widow, within the meaning of the statute under consideration--is likewise false. There is nothing in the letter or spirit of the law to justify the assumption of this instruction, that the widow, with a retinue of servants, is to be fed by the executors for a twelvemonth at the expense of creditors and distributees.

IV. The persons composing the family for which subsistence is to be furnished are the same persons, and none others, who compose the family whose wearing apparel, on the death of the husband, becomes the property of the widow. Could it with any plausibility be pretended that a man-servant or maid-servant was such a member of the family as to make his or her wearing apparel the property of the widow? If not, he or she is not so a member of the family as to be considered in estimating the amount of subsistence to be set off to the widow. Where the widow has no one dependent upon her, as in the case at bar, subsistence is to be provided for her alone, not for a retinue of servants to support an establishment. The construction insisted upon by the petitioner, and especially if the law be administered by a jury, would in most cases be equivalent to confiscation of the estate.

Davies and Anderson & Boulware, for defendant in error.

It cannot be supposed that the Legislature, when it used the words “necessary for the subsistence of the widow and her family for twelve months,” designed to use the words in a rigid and unbending sense, to be construed in all cases without reference to the circumstances of the parties. If that were so, then the provisions for a year might be reduced to a certain amount of bacon and corn-meal. The reasonable intent to be imputed to the Legislature is that it designed that the County Court should take into view the condition and mode of life in which the widow was left by the death of her husband, and to regard as necessary that quality and quantity of provisions which is justified by such condition. So, too, in regard to the word “family.” We claim that the Legislature intended by the word “family” to include such persons as constituted the family of the deceased at the time of his death, whether servants or children who had attained their majority. It was the design of the Legislature to furnish the necessary sustenance for such household for one year after the death of the husband, and to enable the widow to keep what death had spared of her domestic circle unbroken during that time, notwithstanding the loss of her husband. This is the humane construction, and is most consistent with the humane and liberal spirit which marks all our legislation in regard to widows.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff, who is the widow of William Whaley, deceased, made an application to the County Court for an appropriation out of the assets of the estate of the deceased, to supply a deficiency of...