Campbell v. Whitsett

Ellison, J. This proceeding is an application by a widow for an allowance in money out of the assets of her deceased husband’s estate, in lieu of a year’s provisions allowed her by section 106, Revised Statutes, 1889. The application was made to the probate court and allowed. The administrator appealed to the circuit court where a judgment was rendered against the defendant, as administrator, for the amount asked as an allowance, viz.,' $300, and he has again appealed. The chief objection made by the defendant to the judgment of allowance is that the claim was not pre [447] sented until more than two years after the granting of letters of administration, such time being the limitation prescribed for the presentation and allowance of accounts. Sec. 188, R. S. 1889. In our opinion, this limitation period does not apply to the widow’s claim for an allowance in lieu of the year’s provisions allowed her by statute. It is also objected that as the widow became a nonresident of the state immediately after her husband’s death, and was at the time of presenting her claim, she was not entitled to have it allowed. But we think such fact would not debar her claim. The year’s provision allowed her is her absolute property. So, if it be not on hand, the money in lieu thereof would be hers as her absolute property and not depending upon her place of residence after her husband’s death. We deem this to be the logical result of the cases of Cummings v. Cummings, 51 Mo. 261, and Hastings v. Myers, 21 Mo. 519. Most of the contest below seems to have been over the question whether there were any assets on hand out of which the claim could be paid, and in undertaking to ascertain this, the investigation took a wide range. Indeed, parts of it seemed aimed at an inquiry into the affairs of the administration, the propriety of the allowance of certain accounts, etc. The court, as shown by the declarations of law, was of the opinion that such matters were foreign to the inquiry. A simple proceeding of this sort can not involve an overhauling of the settlements and accounts of the administration and the judgments of the probate court. In such an investigation, the amount of assets unappropriated, if any, should be found and that sum ordered paid. Whaley v. Whaley, 50 Mo. 577. But if the case is merely to establish the widow’s claim, and it be not afterward paid, then, as in other cases, if there be a [448] cause sufficient to inquire into the administration of the estate — to open and surcharge settlements — it could be done by a proper procedure in a court of competent jurisdiction. Or if assets properly applicable to the allowance be in the administrator’s hands and he willfully refuses to pay, a sufficient remedy exists. The result of the trial below, as is shown by the judgment entered by the court, is merely to establish the claim of the widow and the amount thereof. Whether it is to be paid will depend upon whether there be assets unappropriated with which to pay it, and this, we deem it proper to say, has not been adjudicated. In this view of the judgment, we should affirm it, as it appears in the record, were it not that there is added to it a clause making it a judgment against the administrator, as such, and ordering execution. A judgment for the widow under this statute should be no more than a judgment establishing the claim; or an order appropriating assets, ascertained to be unappropriated, to the payment of the claim and ordering it paid. Viewing the judgment as one establishing the claim merely, we will strike from it the following clause: “It is further ordered and adjudged by the court that the plaintiff have and recover of and from the defendant, as administrator, the sum of $300, the amount found due by the court as aforesaid, together with th'e costs of this suit, and that execution issue therefor;” and, as amended, order its affirmance. All concur.