Zook v. Welty

• Decision Date: 29 May 1911
• Citation: 137 S.W. 989,156 Mo.App. 703
• Parties: ROBERT P. ZOOK, MATTIE ROHRER, MARY VAN NATTA, LAURA ZOOK and FREDERICK V. ZOOK, Respondents, v. EDWIN A. WELTY, Administrator of the Estate of ELIZABETH ZOOK, deceased, Appellant
• Court: Kansas Court of Appeals

137 S.W. 989

156 Mo.App. 703

ROBERT P. ZOOK, MATTIE ROHRER, MARY VAN NATTA, LAURA ZOOK and FREDERICK V. ZOOK, Respondents, v. EDWIN A. WELTY, Administrator of the Estate of ELIZABETH ZOOK, deceased, Appellant

Court of Appeals of Missouri, Kansas City

May 29, 1911

Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.

Judgment affirmed.

Brown & Dolman for appellants.

(1) The court erred in holding that an election was necessary for a widow to claim her statutory allowance of a child's share in her deceased husband's property, and erred in holding that by her acts she elected to take the property bequeathed and devised to her under the terms of the will not only in lieu of dower in the real estate but also in lieu of her child's share in the personal property, and also erred in holding that by taking the $ 2000 she elected to take it subject to the terms of the will, viz: a life estate therein only. Brown v. Doerr, Admr., 135 Mo.App. 598; Hayden v. Hayden, 23 Mo. 398; Skeen v Johnson, 55 Mo. 24; Walls' Guard. v Coppage, 15 Mo. 448; McReynolds v. Gentry, 14 Mo. 495; Egger v. Egger, 225 Mo. 116. (2) The term "dower" properly refers to the interest of the widow in the real estate of the deceased only. Bryant v Bryant, 49 Mo. 546; Brown v. Doerr, Admr., 135 Mo.App. 598. The widow's election to take real estate in lieu of dower in no manner interferes with her right to take her statutory allowance. Haniphan v. Long, 70 Mo.App. 351.

Culver, Phillip & Spencer for respondents.

William Zook died in 1876 leaving children by a former marriage. Under the law as it then existed, his widow, Elizabeth Zook, was entitled to dower as follows: In the real estate, one third during her natural life. R. S. Mo. 1879, sec. 2186. And in the personal property; to a share equal to the share of a child of her deceased husband as her absolute property, the share of course, being subject to the payment of the husband's debts. R. S. Mo. 1879, sec. 2186. We concede it makes no difference that the children are by a former marriage, and that the widow is entitled to this dower in the personal property without filing any "election" to take it. Haniphan v. Long, 70 Mo.App. 352.

OPINION

JOHNSON, J.

This is an action by the residuary legatees of William Zook, deceased, to recover a legacy of $ 2000, in which the widow of the decedent, who died testate, was given a life estate and the residuary legatees, who were children of the testator by a former marriage, were given the remainder.

William Zook died at his home in St. Joseph in March, 1876, and his widow died in the same city in September, 1908. They were married in 1868 and no children were born to them. Mr. Zook had four children by his first wife. Those living and the decendants of one now dead are the plaintiffs in this action. Mrs. Zook had one child by a former marriage. He is living, is the administrator of her estate and, as such, is the present defendant.

Mr. Zook died seized of a large estate, consisting of real and personal property. He also left two life insurance policies for $ 15,000, payable to his widow. The appraised value of his personal estate consisting in the main of notes, mortgages, stocks, bonds, cash in bank and interests in three partnerships, was approximately $ 125,000, but owing to shrinkages and losses caused largely by the mismanagement of the executor, the net proceeds of the personal estate distributed among the residuary legatees were about $ 80,000. The real estate consisted of the family residence in St. Joseph, valued by the testator and his widow at $ 12,500, of a half interest in 32 acres of land in Holt county, a half interest in 15.50 acres in Holt county; a third interest in eight acres in St. Joseph, occupied by a packing establishment operated by a partnership in which the testator had a third interest; eighty acres in Holt county and a third interest in five lots in St. Joseph. The interest in much of this real estate which was owned by partnerships of which the testator was a member is included in the inventory and appraisement of the personal estate. The value of the remainder is not very clearly shown and is of no material importance to the discussion of the issues we are called on to decide. In addition to the property mentioned the testator had in his home silverware worth $ 2000 and household goods, etc., valued at $ 2500.

In his will made a month before his death, Mr. Zook made the following provisions for his widow: "To my beloved wife, Elizabeth Zook, I bequeath the sum of fifteen thousand dollars, to consist of the following items: One policy of insurance that I have taken on my life in the Connecticut Mutual Life Insurance Company of Hartford for the sum of ten thousand dollars and one other in the Phoenix Life Insurance Company of Hartford for the sum of five thousand dollars, both paid out of my money, and to be considered part of my estate, and if the said amounts should not be realized by my said wife, then any deficiency shall be made up to her in money by my executor so as to make up said fifteen thousand dollars. I also devise to my wife the dwelling house in which I now reside in the city of Saint Joseph, together with the lots on which it is located, to-wit: Lots 11 and 12, in block 12, in Robidoux Addition to said city of Saint Joseph, Buchanan county, Missouri, with all the buildings and improvements thereon, to have and to hold unto her, her heirs and assigns forever. I also bequeath unto my said wife as her absolute property all my household and kitchen furniture except my silverware. I also bequeath unto my said wife for and during her natural life all my silverware and the remainder to my daughters, or to such of them as may then be living. But these bequests shall not apply to any furniture or property known and recognized as belonging to my daughters or either of them. I also bequeath to my said wife the sum of two thousand dollars in addition to said fifteen thousand dollars, to have and to hold for and during her natural life, with the remainder over to my heirs. These devises and bequests are all made in lieu of dower in my estate, real and personal, subject to the foregoing devises and bequests."

Shortly after the issuance of letters testamentary to the executor he paid the widow the legacy of $ 2000 in controversy and took from her a receipt in which she stated she received the same as "per devise to me in said will." He also collected and paid to the widow the proceeds of the insurance policies. In an instrument of writing executed and delivered by her to the executor some time prior to May 17, 1876, she accepted the home property and household goods in the following terms: "The following real estate and personal property by the terms of the will was devised to Elizabeth Zook, his wife, and for which the receipt accompanies this inventory: Lots 11 and 12, in Block 12, in Robidoux Addition to the City of St. Joseph, County of Buchanan, and State of Misouri, valued at $ 12,500; all the household and kitchen furniture, as per terms of will, valued at $ 2500. Received of J. W. Zook, executor of the last will and testament of William Zook the foregoing specified property devised to me."

Defendant concedes that her acceptance of the home was sufficient to invest her with the fee simple title thereto; that for thirty-two years she treated and used it as her absolute property and, as her sole heir, he now claims to be the owner in fee of that property. Since plaintiffs take the same position we shall not inquire further into the subject of the sufficiency in law of the widow's acceptance of the devise of the home but shall treat it as her absolute property coming to her under the terms of the devise. Mrs. Zook was an intelligent woman and there is no suggestion in the evidence that she was dissatisfied with the provision made for her in the will or that she ever contemplated asserting any right to her husband's estate not mentioned in that instrument. In apparent acquiescence she suffered the residuum of $ 80,000 to be distributed by the executor and made no claim of any interest in it.

Defendant, called as a witness by plaintiffs, testified in his cross-examination that Mr. Zook had paid $ 10,500 for the home and that its market value at his death was not over $ 9000. Further he stated that the household goods, etc., were not worth to exceed $ 1000. This was opinion evidence to which we give but little weight, not because of any misgivings concerning the credibility and sincerity of the witness, but for the reason that in the very nature of things an expert opinion of market values a generation ago, in all likelihood, would not be accurate. Of historical or memorial events and facts, as of mountain peaks, the remote view is different from the near. We perceive no reason for discrediting the judgment of the testator and his widow in their valuation of the property and are disposed to accept it as an expression of the true fact. However, it is not important which values are accepted since we find, as did the trial court, that in either view "the amount and value of the child's share in the personal estate of said Zook to which Mrs. Zook would have been entitled under the statute, was greater than the amount and value of the real and personal property received by her under said will, including the $ 2000 sued for herein."

That is to say a child's share...