Opinion
Nos. 21234, 21235.
May 1, 1950.
APPEAL FROM THE CIRCUIT COURT, SCHUYLER COUNTY, W. A. HIGBEE, J.
Allen Rolston, Lancaster, Philip J. Fowler, Kirksville, of counsel, for plaintiffs-appellants.
L. F. Cottey, Lancaster, Jayne Jayne, Kirksville, for defendant-appellant.
This is an action brought by the administrators de bonis non of the estate of Julius Schade against the executor of the estate of his widow Caroline Schade, deceased, for an accounting of the personal assets of the estate of Julius Schade, and for a determination of the rights of the parties to such personalty. Defendant tendered $2058.25 as the correct amount due plaintiffs, after statutory allowances and credits claimed. The tender was refused. The court disallowed the widow's proposed statutory allowances, held her executor entitled to claim one-half of the personal estate of her husband under Section 325, R.S.Mo. 1939, Mo.R.S.A., after payment of debts of his estate, and found the correct amount due the plaintiffs is $2067.64, with costs, for which judgment was given. Both parties have appealed and their appeals are here consolidated.
According to stipulation the following are the pertinent facts: Julius Schade and Caroline Schade were husband and wife and lived together as such from the date of their marriage in 1908 to the date of the death of Julius Schade in 1936. There were no children born of the marriage, and Julius Schade was survived by the widow and certain collateral heirs named in his will. On November 16, 1936, his will was probated and provided in part as follows:
"Third: I give, devise and bequeath unto my wife, Caroline Schade, all my property, both real and personal, and effects of every name and nature which I now have, may die possessed of, or may be entitled, to be hers during her lifetime, no taxes, county, state, or village tax be allowed to accrue or remain unpaid, but the same to be paid when due by her.
"Fourth: At the death of my wife, Caroline Schade, all my property, both real, and personal, and effects of every name and nature, shall be divided as follows:" (Here followed the names of certain nephews, nieces and others to take one-ninth share each of the estate after the widow's death).
One Zadok C. Miller, named as executor, was issued letters of administration on Julius Schade's estate on December 1, 1936, and filed inventory and appraisement of said estate, and took possession of the personal assets therein described. The inventory contains a description of a forty acre tract of land in Schuyler County, and a long and detailed list of money, certificates of deposit, notes, bonds and other personal property. After the death of her husband, his widow Caroline Schade occupied the forty acre tract, on which the homestead was situated, until her death January 20, 1948. There was other substantial property, real and personal, in the estate by the entirety, which formed no part of the estate of Julius Schade. No dower or homestead was sought by her or ever assigned to her. She received all the benefits and income from said real and personal estate and made no accounting therefor to the remaindermen named in the will; that upon the occasion of a condemnation of part of the land for a highway, the compensation for such taking was paid to and received by Caroline Schade.
Annual settlements were made by the executor of Julius Schade's estate for the years 1937 to 1941, inclusive, and in November of 1941, Caroline Schade filed a motion in the Probate Court to compel final settlement of said estate and for delivery to her of the assets thereof. In the motion she alleged that under the provisions of her husband's will she was "entitled to receive and hold for and during her lifetime, all of the real estate and personal property owned by her husband at the time of his death", subject to debts and to one legacy of $10, which debts and legacy had been fully paid. The motion was sustained and in March, 1942, said executor filed the sixth annual settlement and made distribution of certain assets to the widow Caroline Schade, for which she gave her receipt. On May 25, 1942, said executor filed his final settlement in Julius Schade's estate and made final distribution of assets to the widow Caroline Schade, for which she gave her receipt in full of balance due on such final settlement.
At no time during administration of her husband's estate did Caroline Schade make any application for or receive any allowance for a year's support, as provided by Section 106, R.S.Mo. 1939, Mo.R.S.A., or for any allowance of $400, provided by Section 107, R.S.Mo. 1939, Mo.R.S.A., nor did the court make any such allowances for her. Neither did she ever file any written renunciation of the will of Julius Schade, or file any election for dower or to take one-half of his real or personal estate after payment of debts as her absolute property. Upon her death she left only collateral kindred surviving her and left a will, leaving her property and estate to a niece and the latter's husband, or the survivor of them, and made the husband of the niece her executor, who is the defendant in this cause. The defendant has tendered to plaintiffs $2058.25, in full payment and satisfaction of their claim in their petition in this cause, which the plaintiffs have refused.
By their petition plaintiffs charge that Caroline Schade, after having withheld from her husband's executor valuable personal assets belonging to the estate, did receive, keep, use and enjoy the remainder of the personal property of said estate delivered to her as a life tenant thereof, under her husband's will; but that, since her death, defendant, her executor, has taken possession of same and claims that it is the property of her estate. They further allege that Caroline Schade, in violation of her duty as life tenant, negligently permitted great waste and loss of such personal assets received by her under Julius Schade's will. They pray for an accounting of the personal assets of the latter's estate, for the determination of the interest of the parties therein, and for general relief.
The defendant in his answer admits that the estate consisted of real estate and some of the personal property described in the petition, and contends that Caroline Schade was entitled as her absolute property to one-half of his personal estate, subject to debts under the provisions of Section 325, and also to one year's support in the amount of $600, under Section 106, and $400, additional personal property under Section 107, for all of which, he alleges, her executor may take credit in the accounting. He admits that she received and retained household goods in the sum of $500, to which, he alleges, she was entitled. The answer denies the other material allegations of the petition, and pleads the statutes of limitations as to the plaintiffs' claim for loss and waste of the personal property alleged in the petition. The answer further avers that on March 4, 1942, Caroline Schade received from the executor of her deceased husband, cash and securities of the cash value of $4831.99, being all of the remaining assets in the hands of such executor at said time except $100 retained pending final settlement, and on May 5, 1942, he paid to her the sum of $84.50, being the balance of the personal assets then undisposed of in his hands, at which time he was discharged; that the total amount of the personal property distributed to said Caroline Schade from the executor of her husband's estate, was $4916.49, being all the personal assets of every kind and description belonging to the estate of Julius Schade at the close of the administration thereof of which she is entitled to keep and retain, as aforesaid, as her absolute property, exclusive of household furniture, $858.24, leaving $2058.25 as the proper balance due to the plaintiffs, which amount has been tendered to and refused by the plaintiffs, and is renewed by the answer. The answer prays for judgment to the effect that the plaintiffs are not entitled to recover more than $2058.25, and that judgment for that amount be so entered, and that costs be assessed against the plaintiffs, and that further relief be denied to them.
The reply denies that the sum of $4916.49 comprised all of the personal property of the estate of Julius Schade, distributed to his surviving widow; denies that her estate is entitled to credit for the allowances of $600 and $400, never asked for or allowed, or any other sum claimed; denies that such sums have ever been paid to her or to any one for her, and asserts that by her acts she accepted and took under the terms of the will of Julius Schade, and that the sums for which defendant now makes claim are barred by limitations. The reply further denies that Caroline Schade is entitled to one-half of the personal property of her husband, after payment of debts, or any other part thereof.
It must be kept in mind that Julius Schade left a will, giving to his widow a life estate in all of his real and personal property. At his death various rights accrued to his widow. She, of course, could accept a life interest in all of his estate, as provided in his will. This she was not compelled to do, but she could obtain certain statutory interests in her husband's real estate and personal property different from those which his will would give to her, had she elected so to do.
The pertinent statutes must be examined. Section 318, R.S.Mo. 1939, Mo.R.S.A., provides for the widow's dower of one-third of her husband's real estate for life, free of his debts. Section 325, R.S.Mo. 1939, Mo.R.S.A., provides, among other things, that if the husband shall die without child or other descendants capable of inheritance, the widow shall be entitled to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to his debts. Section 327, R.S.Mo. 1939, Mo.R.S.A., gives the widow of such childless husband without descendants an election to take the dower in the real estate under Section 318, R.S.Mo. 1939, Mo.R.S.A., or to take one-half of the real estate and personalty absolutely, subject to debts, under the provisions of Section 325, R.S.Mo. 1939, Mo.R.S.A. Section 332, R.S. Mo. 1939, Mo.R.S.A., declares a devise of real estate to the wife of the testator to be in lieu of her dower, unless the will otherwise provides. Section 333, R.S.Mo. 1939, Mo.R.S.A., provides for renunciation of the will to substitute dower, and Section 329, R.S.Mo. 1939, Mo.R.S.A., provides the method of election between the statutes.
Whatever may have been the rights and requirements as between alternative statutes applicable to Caroline Schade, we must first consider whether or not she was entitled to avail herself of them without first having elected between them and the provisions of her husband's will. Had the will given Caroline Schade "any such rights as she would be entitled to under the law of Descents and Distribution" as in the case of First Nat. Bank of Kansas City v. Schaake, Mo.App., 203 S.W.2d 611, then her husband would be deemed to have died intestate as to her and no election between her statutory and testamentary rights would have been required. Or if her claim otherwise were not inconsistent with the provisions made for her under the will, no such election would be necessary. For instance, allowances could have been demanded and granted for one year's support and for certain household effects under Section 106, and for an additional $400 under Section 107, not subject to her husband's debts, as her absolute property, to provide for her temporary maintenance and support during the period of her greatest need, and the same would have been "independent of and unrestricted by any other right or interest she had in the property of the deceased." In re Wahl v. Estate of Wahl, 236 Mo.App. 345, 351, 158 S.W.2d 743, 746. In speaking of those two statutes the Supreme Court said in Re Bernays' Estate, 344 Mo. 135, 126 S.W.2d 209, 215, 122 A.L.R. 169: "The apparent intent of the legislature in making these provisions was to provide a temporary support for the surviving spouse and family, a purpose founded on sound public policy and intended for the conservation of the family. * * * But so much cannot be said of the share a widow takes in the personal estate of her deceased husband other than those absolute allowances." (Italics supplied.)
That court said of Section 323, R.S.Mo. 1939, Mo.R.S.A., a statute similar to Section 325, and which gives the widow of a husband leaving child or other descendants, a child's share in the personalty: "While the husband cannot deprive the wife of her dower or her right to take by election the statutory substitutes in lieu thereof without her assent, she can waive or relinquish those rights, and if the husband's will makes provision for the wife in lieu thereof and she accepts it she does relinquish them. Trautz v. Lemp, 329 Mo. 580, 612, et seq., 46 S.W.2d 135, 147, et seq. * * * In that case the deceased by his will made substantial provision for his wife, which the court said appeared from the will to have been intended by the testator to be in lieu of dower and the widow's statutory share in the personalty. The court held that the widow could not take under both the statute and the will and that by accepting the testamentary provision she was barred of her right to dower in the real estate and the child's share in the personalty."
Under the evidence here, after Caroline Schade admittedly took a life estate in all of the real estate under the will and demanded, received, kept and used all of the personalty so long as she lived, as she would do under the will, making no election between her statutory rights and her testamentary rights during her lifetime, for her executor now to make claim that her estate is entitled to ownership of one-half of the personalty under Section 325, while still claiming the other property under the provisions of the will, is plainly antagonistic to and inconsistent with the Last Will and Testament of Julius Schade. Under such claim, while retaining her life interest in all of the real estate in lieu of dower, Sec. 332, and use of one-half of the personal property by the terms of her husband's will, she would receive absolute title to one-half of the cash instead of its earnings, and one-half of the principal of the mortgage notes and U.S. Bonds outright instead of the interest only therefrom. The remaindermen would receive one-eighteenth of the personalty after her death instead of one-ninth each. Whether or not the statutes authorized her claim, she must first, in order to pursue it, have elected to take under the statutes in lieu of the conflicting provisions of the will pertaining to the estate. In short, we conclude that the right of a widow to one-half of the personal estate of her deceased husband under Section 325, unlike her allowances under Sections 106 and 107, is not a right wholly independent of provisions inconsistent therewith contained in his Last Will and Testament. Such inconsistency may consist of express words of the will, excluding her rights under Section 325, or may consist of the substance, intent and purpose of the will as shown by its provisions in their entirety.
The election so required is an equitable one hand is not statutory. It must be distinguished from the renunciation of the will to substitute dower under Sections 332-333, and must, likewise, be distinguished from the election required by Section 327, between alternative statutes therein named. It arises from the inconsistency between the statutory claim and the provisions of the will, express or implied. Such equitable election between the will and statutory rights is discussed fully in Manufacturers Bank Trust Co. of St. Louis v. Kunda, 353 Mo. 870, 185 S.W.2d 13, involving an estate consisting of personalty left by will in trust for the widow in lieu of dower and marital rights, and the court held that an election to take under the will or under Section 325 was necessary. The court reviewed many cases in our courts, including, In re Dean's Estate, 350 Mo. 494, 166 S.W.2d 529; Egger v. Egger, 225 Mo. 116, 123 S.W. 928, 934, 135 Am.St.Rep. 566; Spratt v. Lawson, 176 Mo. 175, 75 S.W. 642; Waters v. Herboth, 178 Mo. 166, 77 S.W. 305; In re Opel's Estate, 352 Mo. 592, 179 S.W.2d 1; Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825, 826. In reference to those cases the court said, 353 Mo. 870, 185 S.W.2d 15:
"These cases in nowise obviate the necessity of electing to take either under a will or under the statutes.
"In this case the will expressly provides what it gives the widow is in lieu of her statutory rights. It is of course necessary that an election be made whether the widow shall take under the will or shall renounce the will and take under Section 325."
In that case the court overruled Nies v. Stone, 232 Mo.App. 1226, 117 S.W.2d 407, insofar as it held otherwise.
It was said in Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387, 398, 171 S.W.2d 69: "It may be conceded that an election was required between the widow's statutory rights in her husband's property and her testamentary rights in his property under the provisions made for her in his will, but it was an election required in equity and only because she could not claim inconsistent rights in her husband's property." (Italics supplied.)
In Bernays Estate v. Major, 344 Mo. 135, 126 S.W.2d 209, 216, 122 A.L.R. 169, the Supreme Court said: "It is a general principle of law that one cannot claim under a will and against it too, and one who accepts a beneficial interest under a will thereby adopts the whole will and renounces every right or claim that is inconsistent with the will. (Citations.)"
In the case at bar Caroline Schade filed her motion in the Probate Court five years after her husband's death, claiming that as his widow she was "entitled to receive and to hold, for and during her lifetime, all of the real estate and personal property of every kind and description owned by her said husband at the time of his death", and asked that the estate be ordered closed. This was done and the personalty was delivered to her by the executor, and her receipt obtained. Thereafter she kept and enjoyed and used all of the property of the estate, real and personal until she died seven years later, and made no election to take under any statute, in lieu of the will. Under these circumstances she must be deemed not to have elected to take under the statute in lieu of the will, but, in fact, in equity, to have elected to take under all of the provisions of the will, and her executor is bound thereby.
Plaintiffs also seek to hold the estate of Caroline Schade liable for loss and waste of certain sums of the Julius Schade estate. This had to do with funds which were never delivered to her by his executor, and for which her estate is not liable.
Defendant claims credit for $600, one year's support under Section 106, and $400 additional allowance under Section 107, as the widow's absolute property. The allowances were exclusively within the jurisdiction of the Probate Court to make, and could not in the first instance, be allowed by the circuit court. Neither were there ever any applications made for these allowances before final settlement of the estate of Julius Schade, or at any other time during the twelve years the widow survived her husband, nor since her death. Such credits cannot be allowed. Griswold v. Mattix, 21 Mo.App. 282, 286; Lamar v. Belcher, 154 Mo.App. 571, 572, 136 S.W. 748; State ex rel. Meyer v. Arnold, Mo.App., 220 S.W.2d 942, 944; Monahan v. Monahan's Estate, 232 Mo.App. 91, 89 S.W.2d 153, 157; Section 108, R.S.Mo. 1939, Mo. R.S.A.
According to the evidence, the court found that Caroline Schade received from her husband's executor as the corpus of his personal estate, a total of $5135.29. The result is that defendant is indebted to the plaintiffs in that sum.
The judgment is reversed and the cause remanded with directions to enter judgment for the plaintiffs for $5135.29 and costs.
BROADDUS, J., concurs.
CAVE, J., not participating.