Summary
In McDonnell v. Oxler's Estate, 235 S.W.2d 568 (Mo.App. 1951) this court rejected the contention that the statutory language "taking into account the condition of the estate" was meant to limit the amount of the allowance according to the value of the estate.
Summary of this case from Matter of Estate of ArndtOpinion
No. 21473.
January 8, 1951.
APPEAL FROM THE PROBATE COURT AND THE CIRCUIT COURT OF JACKSON COUNTY, BEN TERTE, J.
Edmund Smith, Meyer, Smith Wetzel, Kansas City, for appellant.
Albert Copaken, Sylvia Copaken, James F. Pickett, Kansas City, for respondent.
This suit is here on appeal from the circuit court of Jackson County, on appeal there from the probate court. It is an action by the widower of Mary Oxler for the absolute property allowed the widower by Secs. 106 and 107, R.S. 1939, Mo.R.S.A. Both the probate court and the circuit court awarded the widower the sum of $4200 in cash, to be paid from the personal estate of the deceased wife.
The sole issue is whether the allowance was unreasonable, excessive and an abuse of discretion on the part of the probate and trial courts.
Mary Oxler died intestate on March 9, 1948, leaving surviving her husband, Joseph F. Oxler, and one brother, Charles W. McDonnell; she left no children or descendants or other collateral heirs. After the above allowance was made in the probate court, McDonnell appealed to the circuit court and, as stated, that court made the same allowance of $4200. The gross estate of Mary Oxler was $5700, all in personal property. Only two witnesses testified, Charles McDonnell and Joseph Oxler.
Mr. Oxler testified that he was 75 years of age; that he and the deceased had been married 42 years, but had no children; that he had been engaged in the automobile trimming and buggy-top business for almost 30 years; that during the years from 1922-1929 he had earned approximately $10,000 a year; that subsequent to that time his business was not as good as it had been, and as he became older it had slackened; that for several years prior to his wife's death he had drawn $35 to $40 a week from the business for the support of himself and his wife; that his wife had been ill for about one year before her death; that for about one month before she died he gave his entire time to her and, as a result, "got a foot ailment from running up and down the steps. Q. And then you weren't able to take care of yourself? A. I wasn't for two or three months, no, sir." Shortly after his wife's death he persuaded his daughter by a former marriage to give up her work and live with him as a housekeeper and paid her $30 to $35 a week. She remained with him for more than a year; and it cost him "about $50.00 a week" for their living expenses during that period. He stated that he had actually spent more than $4200 during the year after his wife's death, but there is no explanation of the items constituting this expenditure and such a general statement is of little probative value in arriving at a reasonable allowance under the statute. In re Rash's Estate, Mo.App., 256 S.W. 525, 527.
Mr. McDonnell testified that he was a brother and the only surviving heir of Mrs. Oxler; that he had been in her home two or three days before her death and on another occasion some three or four months before that, and gave it as his opinion that $100 a month would be a fair and reasonable amount to be allowed the surviving husband. However, this witness was so unfamiliar with the standard of living of Mr. and Mrs. Oxler that his opinion is of little value. He admitted he knew nothing of the costs of utilities or doctor bills and items of that nature.
Application for allowances under the above sections is not triable by a jury; it is in the nature of an equitable proceeding. Perkins v. Silverman, 284 Mo. 238, loc. cit. 259, 260, 223 S.W. 895; Whaley v. Whaley, 50 Mo. 577. We must consider the cause de novo, and while we give due deference to the findings of the trial court as to facts and as to weight of the testimony, yet it is our duty to examine the record and to reach our own conclusions whether or not the facts justify the judgment. Rone's Estate v. Rone, Mo.App., 218 S.W.2d 138, 149; Perkins v. Silverman, supra.
Sec. 106, supra, provides that the widower shall be entitled to keep as his absolute property certain specified articles and in addition thereto "such sums of money in exclusion of all debts, claims, charges, legacies, and bequests, as the court may deem reasonable for the proper support of the said widower or widow, and the minor children under the age of eighteen years, if any, as the case may be, for the period of one year after the death of the spouse, in a manner suited to his, her or their condition in life, taking into account the condition of the estate of the deceased spouse, and the court shall make such appropriation out of the personal assets of the estate * * *." The italicized provisions were added. Laws 1933, p. 164.
Sec. 107, supra, provides, "In addition to the above, the widower or widow may take such personal property only that he or she may choose not to exceed the appraised value of four hundred dollars, for which he or she shall give a receipt."
It has long been held that these statutes were enacted for the purpose of providing temporary maintenance for the surviving spouse and children, if any, of a decedent during the period immediately following his or her death and until some permanent provision can be made for their support. The power to grant such allowances is dependent upon statutory authority, since at common law there was no provision for supplying temporary wants and requirements for those who had been dependent upon the deceased. Jaeglin v. Moakely, 236 Mo.App. 254, 151 S.W.2d 524; Wahl v. Wahl's Estate, 236 Mo.App. 345, 158 S.W.2d 743; In re Bernays' Estate, 344 Mo. 135, 126 S.W.2d 209, 215, 122 A.L.R. 169.
We are not concerned with the allowance of $400 made under Sec. 107. Appellant makes no complaint of that award. We are concerned with the amount allowed under Sec. 106. At this point we should state that the judgment of the circuit court does not separate the allowance under the two sections, as was done in the probate court judgment, but it seems to be conceded that the judgment for $4200 includes the $400 allowable under Sec. 107. Thus the question is, was the allowance of $3800 "reasonable for the proper support of the said widower"?
No fixed rule can be laid down which will apply to each particular case of this type. The position and situation of some surviving spouses are quite different than others, and the courts must take into consideration all proper circumstances and conditions surrounding the surviving spouse at the time of the allowance, Whaley v. Whaley, supra; Mahon v. Fletcher's Estate, Mo.App., 245 S.W. 372, 375; and give to the statute a liberal construction in order to effectuate its benign and salutary purpose. Jaeglin v. Moakley, supra. In passing upon the reasonableness of the allowance, the probate court's view of the necessities for the succeeding twelve months must necessarily be prospective, not retrospective, and that must be our view of the question. In re Rash's Estate, supra. In that case the court said, 256 S.W. at page 527: " In passing upon the reasonableness of the appropriation, the probate court's view of the twelve months was necessarily prospective. It follows that this court, in determining the question, stands in the shoes of the probate judge, and must prospectively view the situation and condition of the widow as of the time of her husband's death. * * * The reasonable appropriation contemplated by the statute is to be submitted to the discretion of the probate judge. The discretion must be within reason, that of a man of ordinary judgment, and not a wild guess. His judgment, however, does not require exactness, and ought to be rather liberal, so that the widow may be reasonably assured of provisions for the sustenance of herself and family for 12 months."
With these general principles in mind, we view the situation as it appeared to the probate court at the time of the allowance. According to the testimony, the widower and his wife had, for a number of years, lived on a standard of $35 to $40 a week for their actual living expenses; that because of the widower's advanced age and a "foot ailment," it was necessary for his daughter, or someone, to keep house and look after his well-being; that he paid her $30 to $35 a week for this service; and that the living expenses for him and his housekeeper would be about $50 a week. Also the court would be justified in finding that, because of his advanced age and incapacity at that time, it would be necessary for him to have someone administer to his needs and keep the house for the coming year. Thus when we consider his standard of living and the reasonable prospective needs for additional services during the coming year, we cannot say that the allowance made by the probate and circuit courts was unreasonable and an abuse of discretion. The evidence is not as comprehensive as we would like, but we must consider the record as presented.
Appellant argues that the amendment of Sec. 106, supra, to the effect that the court should take "into account the condition of the estate of the deceased spouse" is meant to limit the amount of the allowance according to the value of the estate. We do not believe the Legislature intended that clause to be the chief determining factor in arriving at a reasonable allowance. It is a factor to be considered by the court, but the primary purpose of the statute is to provide "proper support" for the widow or widower when all factors and conditions are considered.
From what we have said, the judgment should be affirmed. It is so ordered.
All concur.