Opinion
No. 28295.
February 19, 1952. Rehearing Denied March 14, 1952.
Robert M. Zeppenfeld, St. Louis, for appellant.
Edward A. Haid, St. Louis, for respondent.
This is a proceeding under RSMo 1949, § 462.400, V.A.M.S., for the discovery of assets allegedly belonging to the estate of Stamatia Polizoe, deceased, who had been the wife of Constantinos Polizoe.
Stamatia was a widow at the time of her marriage to Constantinos, and was the owner of the household furnishings at 4316a Forest Park Boulevard, in the City of St. Louis, where she and Constantinos made their home.
Stamatia died on October 6, 1944, and some time thereafter Constantinos was appointed administrator of her estate. In due course he prepared an inventory of her estate, but omitted the household furnishings from the inventory upon the theory that since, in his opinion, they did not exceed the value of $500, and since, if that were true, he, as widower, was entitled to keep them as his absolute property, RSMo 1949, § 462.450, V.A.M.S., they were no part of Stamatia's estate and were therefore not to be included in the inventory.
After appropriating the furniture Constantinos rented it out for the sum of $45 a month to a tenant who was put in possession of the premises; and after his death his executor continued to do likewise for the benefit of his estate.
On March 18, 1947, Constantinos died testate, and Robert L. Spelbrink was appointed his executor. At the time of Constantinos' death Stamatia's estate was still in process of administration. Following his appointment as administrator Spelbrink prepared an inventory of Constantinos' estate and listed the household goods in question as assets of such estate at an appraised value of $200. He then proceeded to file a settlement in Stamatia's estate as the personal representative of Constantinos, and was thereupon appointed administrator be bonis non of Stamatia's estate.
On August 16, 1948, one Thomas Sclavos, a son of Stamatia by her first marriage, filed a petition in probate court in which he asked that Spelbrink, as executor of Constantinos' estate, be cited to appear and account to Stamatia's estate for the household furnishings in question as well as for the proceeds realized from their rental and credited to Constantinos' estate. The theory was, of course, that such furnishings were not a part of Constantinos' estate, but were articles that should originally have been inventoried as a part of Stamatia's estate.
After a hearing in probate court, an order was entered directing Spelbrink, as administrator de bonis non of Stamatia's estate, to inventory as a part of her estate the household goods which he, as executor of Constantinos' estate, had inventoried as a part of the latter estate; to pay into Stamatia's estate all sums which he, as executor of Constantinos' estate, had theretofore collected as rent for such household goods; and thenceforth to rent such household goods as administrator de bonis non of Stamatia's estate and account to her estate therefor.
Spelbrink, as executor of Constantinos' estate, took an appeal from such order to the circuit court, and thereafter filed his motion for judgment on the pleadings. This being denied, the case was tried and submitted to a jury upon the single question of whether Stamatia's estate should be credited with the proceeds realized from the rental of the furniture during the period that Spelbrink had been in charge of the administration of Constantinos' estate. In the event the jury found in favor of Stamatia's estate upon this issue, they were peremptorily directed to return a verdict for the aggregate amount of $2,448.51, comprising the amount of the rentals with interest to date of verdict on the respective monthly payments.
The jury found in favor of Stamatia's estate and assessed the amount to be recovered as the court had peremptorily directed.
Following the overruling of his motion for a new trial, Spelbrink gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
The case turns primarily upon the construction of Section 462.450, which provides that in addition to dower, the widower or widow shall be entitled to keep as his or her absolute property certain enumerated items and types of personal property including all household, kitchen, and table furniture together with beds, bedsteads, and bedding, not to exceed the value of $500.
It is of course very obvious that the purpose of the whole statute is to provide temporary maintenance for the surviving spouse and minor children under the age of 18 years during the period immediately following the decedent's death and until some permanent provision can be made for their support. In re Bernay's Estate, 344 Mo. 135, 126 S.W.2d 209, 122 A.L.R. 169; Jaeglin v. Moakley, 236 Mo.App. 254, 151 S.W.2d 524.
As the statute is written, the widower to widow is entitled to take the specified articles as his or her absolute property, which means that he or she takes them free from any claims against the estate of the deceased, and also free from any setoff against any interest which the particular beneficiary may have against the balance of the estate. Moreover the right afforded by the statute is one which comes into being at the very moment of the death of the deceased, since otherwise the salutary legislative purpose of preserving the family status would largely be defeated.
But even though it is true that the widower or widow is entitled to keep the specified articles as his or her absolute property, and even though the statute contemplates that such statutory bounties are not to be a part of the deceased's distributable estate, it does not follow that the probate court is devoid of any and all function to perform in order that the right of absolute ownership may become vested in the surviving spouse.
For instance, in the case of household furnishings, the widower or widow is not in all events entitled to keep each and every article falling within that category, but only in an amount not exceeding the value of $500. But who is to determine the question of value for the purpose of separating the furnishings which the widower or widow is entitled to keep from the distributable assets of the estate? Surely not the widower or widow on his or her own account without regard for the rights of heirs, distributees, and creditors; and surely not the personal representative of the deceased without regard for the rights of the widower or widow. Yet it is a matter of common knowledge that modern household furnishings do in many cases exceed the value of $500. The answer is that the ultimate question of value must be ascertained by a competent judicial tribunal, or, in other words, by the probate court, Griswold v. Mattix, 21 Mo.App. 282, upon the application of the surviving spouse that the particular articles be set apart. Monahan v. Monahan's Estate, 232 Mo.App. 91, 99, 89 S.W.2d 153, 157. It is in this manner that the bounties allowed the surviving spouse are to be effectually separated from the estate so that administration may follow in the regular course upon whatever remains. Waters v. Herboth, 178 Mo. 166, 77 S.W. 305.
Not only is this the logical import of the particular statute, but other pertinent statutes respecting the administration of estates would seem to lend their force to such conclusion.
Upon the grant of his letters an executor or administrator is required to collect and take into his possession all of the deceased's personal property except that which is reserved as the absolute property of the surviving spouse. RSMo 1949, § 462.010, V.A.M.S. The reserved property, as already pointed out, is to be left in the possession of the surviving spouse in conformity with the legislative policy of making it possible for the family status to be preserved intact during the period immediately following the death of the deceased. But notwithstanding the fact that the executor or administrator does not take physical possession of those articles of personal property which go to make up the bounty of the surviving spouse, he none the less prepares an inventory and appraisement of the entire personal estate, RSMo 1949, § 462.020, V.A.M.S.; and if, upon the return of such inventory and appraisement it appears to the court that the whole amount of the estate is not more than that to which the widower, widow, or minor children under 18 years of age are entitled by law without being subject to the payment of debts, the court may then make an order that the estate be delivered to the widower, widow, or minor children under 18 years of age, and that all further administration be dispensed with. RSMo 1949, § 461.640, V.A.M.S. In other words, it is for the court, and not the surviving spouse, to determine the question of value as it relates to what the surviving spouse may be entitled to keep as his or her statutory allowance, and it is to this end that the property must be included in the inventory, even though it is to be no part of the deceased's distributable estate.
With this background of the law of the case, we come to the points urged by Spelbrink as grounds of objection to the proceedings in the court below.
For his first point he argues that the court committed error in refusing his request for a directed verdict in favor of himself as executor of Constantinos' estate. In view of the conceded fact that the household goods had not been inventoried in Stamatia's estate and that no steps had been taken in the probate court towards determining what portion of the household goods should be set apart as Constantinos' absolute property, it necessarily follows that such a directed verdict would have been wholly unwarranted.
The next point is that the court erred in overruling Spelbrink's motion for judgment on the pleadings.
Proceeding on the assumption that there had been no requirement for an inventory of the household goods unless they had exceeded the value of $500, the motion asked that the citation for the discovery of assets be dismissed inasmuch as it had failed to allege that the household goods belonging to Stamatia at the time of her death had exceeded the value of $500. It was specifically admitted in the motion that the household goods had not been inventoried in Stamatia's estate, but had been inventoried and appraised in Contantinos' estate.
The motion for judgment on the pleadings, or, in other words, for the dismissal of the citation for the discovery of assets, was properly denied for the same reason that the motion for a directed verdict was denied. As we have already pointed out, the furniture should have been inventoried as a part of Stamatia's estate, and then so much of it set apart to Constantinos, the widower, as did not exceed the value of $500. Furthermore, in resolving the question of value, the burden was on Constantinos to show that the furniture he was claiming as his absolute property did not exceed the value of $500, and not upon any heir or creditor to show the contrary.
It is next insisted that the citation could not be sustained for the lack of evidence as to the value of the furniture. As a matter of fact, there was substantial evidence of value, even though it may be granted that there were circumstances in connection with the testimony of the witnesses which might have affected its weight in the eyes of the jury. However the chief fault in Spelbrink's position does not lie in his contention that there was no evidence of value when in truth there was, but in his assumption that the disposition of the citation for the withholding of assets depended upon the question of the value of the furniture. Whether the furniture exceeded the value of $500 would of course have been the whole matter for determination if Constantinos had asked to have it set apart to him as his absolute property upon Stamatia's death. However instead of making application for action to be taken to have it dissevered from Stamatia's estate, he arbitrarily appropriated the whole of it to his own use; and in this proceeding the only question is whether, irrespective of its value, the proceeds derived from its rental should now be credited to Stamatia's estate. As for the further complaint that the court treated such question as one of fact instead of one of law, it will be observed that inasmuch as all the material facts in evidence were undisputed, the actual effect of the court's instructions was to leave no room for difference of opinion as to the conclusion that should be reached.
Assailing the verdict for a money judgment in favor of Stamatia's estate for the amount of the proceeds realized from the rental of the furniture and credited to Constantinos' estate, the point is made that the only verdict that could properly have been rendered would have been a verdict finding that Spelbrink as administrator de bonis non of Stamatia's estate had failed to inventory the furniture as an asset of her estate, and requiring him to do so.
This point is apparently an afterthought, since it was expressly recognized, and in fact openly stated, by both Spelbrink and his counsel during the trial of the case that the only question for decision was whether the proceeds of the rentals were to be credited to Stamatia's estate or were to remain listed as assets of Constantinos' estate. There could obviously have been no judgment rendered against Spelbrink as administrator de bonis non of Stamatia's estate requiring him to inventory the furniture as assets of her estate. In his capacity as administrator de bonis non of her estate, he was not in possession of either the furniture itself or the proceeds derived from its rental. Everything either directly or remotely in controversy was in his possession as executor of Constantinos' estate; and the purpose of this proceeding was to discover whether the rentals in his possession in the latter capacity should instead be credited to Stamatia's estate. It was only in the event the citation was sustained that any responsibility could have devolved upon him as administrator de bonis non of Stamatia's estate.
Finally complaint is made of the court's action in instructing the jury to the effect that Constantinos had had no right to appropriate the furniture as his absolute property in the absence of a finding by the probate court that it did not exceed the value of $500. This was a correct exposition of the law; and the instructions requested by Spelbrink were properly refused for the reason that they were drawn upon the contrary theory.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON and GREEN, JJ., concur.