Glenn v. Gunn

1. Administration: ALLOWANCE EOR WIDOW OUT OE ESTATE OE DECEASED. The statutory provision (section 105, Revised Statutes 1899) for a year’s support for the widow and children does not depend on the husband’s testacy or intestacy, solvency or insolvency. It is theirs, absolutely. 2. -: -: CREDITORS: BEQUESTS. And creditors can not seize it nor should bequests defeat it.

Appeal from Pike Circuit Court. — Hon. David Henry Biy, , Judge. STATEMENT OF THE CASE. This is an application by tbe widow of W. H. Glenn, deceased, to tbe probate court for an appropriation from tbe assets of said deceased in tbe bands of bis executor to supply a deficiency in tbe grain, meat and other provisions allotted to her by section 105, Revised Statutes 1899, wbicb were not on band when the inventory was taken. She was opposed because of tbe following provisions of tbe decedent’s will, wbicb we suppose were accepted: “All of my personal property of whatever kind, I give and bequeath to my wife, Mollie A., and my two daughters, Jennie J. and Mary Nonie. Also all of my real estate, wherever situated in this or any other State, and out of tbe proceeds of my personal and real property, I want all my just debts all paid and it is my expressed will and decree that, my said wife and my said two daughters shall share and share alike in my real and personal property, after tbe paying all my just debts, and I will to my son Edward A. Glenn, for bis own use and benefit, the sum of one dollar, to be paid out of tbe proceeds of tbe sale of my personal property or collections made from same.” Roth tbe probate and circuit courts sustained tbe application and ordered that plaintiff be allowed three hundred and sixty dollars out of tbe assets. The widow, under tbe provision of tbe will herein, can not bold under both tbe will and tbe statute law of tbe State. She must let loose of tbe one or tbe other. Rrant’s Will, 40 Mo. 266. In construing the will in the above case Judge Wagoner, said, at foot of page 277, and top of page 278: “A widow may always refuse to take under a will as devisee or legatee, and fall back on her claim for statutory dower, but she can not claim under the will and the statute at the same time. She must make her election, and claim under one and reject the other.” Pemberton v. Pemberton, 29 Mo. 408. The court holds, in an opinion by Judge Scott, that a widow can not take under both the will, and statute. The above case is quoted approvingly in Schorr v. Etling, 124 Mo. 42. (1) Under the agreed statement of facts, the allowance in favor of the widow is correct. Hasenritter v. ILasenritter, 77 Mo. 162; In re Klostermann case, 6 App. 314; Schoeneich v. Reed et ah, 8 Mo. App. 356-362; Campbell v. Whitsett, 66 Mo. App. 444; 1 American Law of Administration (Woerner 1 Ed.), p. 160, sec. 77; id, p. 171, sec. 82. (2) The widow is entitled to the allowance, whether she stands by the will Or renounces it, and the questions of election does not arise in this cause. The allowance is for the immediate benefit of the widow and she has a year in which to renounce the will, if she so desires, and then, too, such renunciation does not apply to the personal property involved in this cause, or in cause numbered 8142 in this court, wherein this respondent is appellant. Hastings, v. Myerrs, Adm’r, 21 Mo. 519; Bryant Adm’r, v. McCune, 49 Mo- 546; Cummings v. Cummings, 51 Mo. 261.