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items of the estate which consists entirely of household and kitchen furniture, beds, bedding, etc., of the same character of goods, all of which was appraised, as before stated, at $770.45.

Plaintiff continued in possession of the property under the order of the probate court, dispensing with administration for some time, and at any rate until about the time the administrator made and filed his

are two in number, and relate, first, to the supplemental inventory containing all of the identity of the right of the widower to have and enjoy the allowance and absolute property from his deceased wife's estate that she would enjoy in his estate as his widow, and then, too, as subsidiary to this the amount to be allowed in money in lieu of the specific articles of property allowed the widow by statute when such property has been sold by the administrator; and, second, as to the right of the administrator to re cover through counterclaim from the plain-inventory in April, 1910; that is, from the tiff widower as for the use of the property of the estate, household furniture, etc., in a boarding house after the death of the wife, and until it came into the possession of the administrator when it appears the property was retained by the widower under an order of the probate court authorizing its retention for the reason the estate was adjudged not sufficient in value to justify an administration.

date of the death of his wife, September 30, 1909, to the early part of April, 1910, or a little more than six months. After the administrator came into possession of the property, he sold it all for $1,350, and plaintiff filed his claim for his allowance and his absolute property in his wife's estate under the statute. By a stipulation on file and in the record, it is agreed between the parties "that whatever rights Quincy M. Nelson may have under and by virtue of the statutes of the state of Missouri as the husband of the said Georgia Nelson, deceased, to and in the estate and property of the said Georgia Nelson, prior to the said sale by the public administrator hereinbefore mentioned, shall attach to the proceeds of the said sale, and the said proceeds to stand in the lieu and stead of said property and apportioned accordingly. The ad

The relevant facts are plaintiff's wife, Georgia Nelson, and he together maintained a boarding and rooming house in the city of St. Louis, where they resided, but it appears that all the furnishings therein belonged to plaintiff's wife. This boarding and rooming house business occupied four separate residence buildings on Vernon avenue under the same management; that is, of plaintiff's wife and himself. Mrs. Nelson died on September 30, 1909, and it ap-ministrator expressly denies that the said pears that her estate consisted solely of the Quincy M. Nelson has any interest in the furnishings in the four adjacent residences property above set out." On these facts the wherein the boarding and rooming house circuit court sustained plaintiff's claim both business was conducted. The entire estate, for an allowance and for his absolute propafter being inventoried by the public ad- erty as follows: Under section 114, R. S. ministrator, was appraised at $770.45, but 1909, which allows the widow to keep cerwas afterwards sold by the administrator tain enumerated articles, such as household, for $1,350, and so it is plaintiff's claim now kitchen furniture, wearing apparel, provirelates to his rights in this money realized sions, etc., the court awarded plaintiff $100. by the administrator on the sale of the prop- It appearing in the case that there were erty. On the 29th day of October, 1909, no grain, meat, vegetables, groceries, and after the death of his wife on September other provisions on hand at the time of the 30th, plaintiff applied to the probate court, death of Mrs. Nelson, the court allowed under section 10, R. S. 1909, for an order to plaintiff as a reasonable appropriation out the effect that no administration should be of the assets of the estate to supply such had upon his wife's estate for the reason deficiency in accordance with section 115, that the estate was not greater in amount R. S. 1909, $100 for his one year's support. than is allowed by law as the absolute prop- Under section 116, R. S. 1909, the court alerty of the widower, and the probate court, lowed plaintiff $400 in addition to the above upon hearing the evidence, sustained his on his right to take such personal property application and entered the order according- as he might choose, not to exceed the aply. Thereafter plaintiff continued in posses- praised value of $400. Thus it appears the sion of the property and conducted the court awarded to plaintiff a total allowance boarding and rooming house as before for of $600 under the three sections of the statseveral months until defendant public ad- ute above noted. At the same time the ministrator took charge of the estate and court found for defendant on the counterproceeded to administer it. The precise date claim, while the estate was held by him, it on which the public administrator interposed is said in the judgment, "de son tort" in the does not appear, but it does appear that he sum of $400, and ordered that such amount inventoried the entire estate on January should be set off against the allowance afore20, 1910, as a claim existing against this said, leaving a residue due plaintiff in the plaintiff for goods and chattels which was amount of $200 on account of his absolute appraised at the value of $25. Afterwards, property and household furniture, beds, bedon April 8, 1910, the administrator made ading, etc., and in lieu of provisions.

McCune, 49 Mo. 546; State ex rel. Steers v. Taylor, 72 Mo. 656.

[1] There can be no doubt that error in- months; her household, kitchen and table heres in this judgment in several respects. furniture, including beds, bedsteads and bedThe relevant statutes will be set out and ding, not to exceed the value of five hundred noticed in their order, but, first, we will dollars." By this section the widow is givconsider that which confers the same rights en as her absolute property certain enumeron the plaintiff widower in the estate of ated articles, and, furthermore, all meat, the deceased wife which are enjoyed by the vegetables, groceries, and other provisions widow in the husband's estate in event of on hand and provided and necessary for the his prior death. Section 120, R. S. 1909, is subsistence of the widow and her family as follows: "If a wife shall die, testate or for 12 months. This property, and all of intestate, owning personal property in her it, every item therein mentioned, is by the own name, in addition to curtesy, her wid- express terms of the statute allowed to her ower shall be allowed to keep as his abso- absolutely, and it forms no part of the eslute property all the articles and property, tate to be administered. The Supreme Court and be entitled to all the remedies and re- says of this section in Waters v. Herboth, liefs as relates to the deceased wife's prop- 178 Mo. 166, 77 S. W. 305, that the articles erty, as is now provided for the widow in therein enumerated are given to the widow the deceased husband's property, under and in the first instance by the statute, and it by virtue of sections 114, 115, 116 and 118." is only what is left after these articles are From this statute it is entirely clear that given to the widow that is to be treated as the Legislature intended the widower should the estate of the husband to be administerenjoy the same rights as to the statutory ed upon. See, also, Bryant, Adm'r, etc., v. allowance pertaining to the property enumerated in section 114 and to a reasonable allowance under section 115 to supply a deficiency for provisions in event there are none on hand and the absolute right to additional property not to exceed the apraised value of $400 under section 116. Furthermore, that in event the property so impressed by these rights of the widow is sold by the administrator that the widower shall enjoy the same rights as the widow to have the claims for the statutory allowances and absolute property satisfied before the money therefrom shall be paid out for debts or distributed as is provided in section 118, R. S. 1909. Though the section of the statute above copied (section 120) purports to confer these rights on the husband "in addition to curtesy," it has been pointedly determined by our Supreme Court that the word "curtesy" is to be regarded as without influence on the question whatever and the statute construed to obtain alike even in those cases where there was no child born alive of the marriage, and the husband is for that reason without the right of curtesy in the wife's real estate. See In re Ferguson's Estate, 206 Mo. 203, 104 S. W. 108. In this view, it is obvious that the plaintiff widower here enjoys the same rights under the statutes above cited as those enjoyed by the widow in her deceased husband's estate, and we come now to determine those rights of the widow.

[2] Section 114, R. S. 1909, is as follows: "In addition to dower, the widow shall be allowed to keep as her absolute property a family Bible and other books, not to exceed two hundred dollars; all the wearing apparel of the family, her wheels, looms and other implements of industry; all yarns, cloth and clothing made up in the family for their own use; all grain, meat, vegetables, groceries and other provisions on hand and provided and necessary for the subsist

From a reading of many authorities on these statutes, it is entirely clear that the judgment of the Supreme Court adverted to is an accurate exposition of the law on the subject, and it is unnecessary to accumulate the cases here. By the first lines of the section of the statute last above copied, the widow is allowed as her absolute property the family Bible and other books not to exceed $200. It does not appear in the instant case that any such books were owned by the decedent or that plaintiff received them. Indeed, the record is barren of proof pertaining to that matter. This being true, plaintiff's rights, if any, pertaining to a Bible and books will be put aside, for it is obvious that he may not recover on that score unless such books were owned by the decedent; that is to say, unless his wife owned such books, plaintiff is not entitled to either books or their value.

The same is to be said touching those articles enumerated in the statute such as wearing apparel of the family, the wheels, looms, and other implements of industry, the yarns, cloth, and clothing made up in the family for their own use. All of these go absolutely to the widow, and in this case, if such articles were owned by plaintiff's wife at the time of her death, they would go likewise to him. But nothing appears as to them, and it is certain that plaintiff is not entitled to an allowance on account of such articles unless they were owned by his wife at the time of her death, for the statute gives no allowance in lieu of them when it appears they are not on hand. We therefore put these articles and the question of an allowance on account of them aside, and consider the succeeding clauses of the statute.

By the next clause the widow is allowed absolutely all grain, meat, vegetables, gro

provided and necessary for the subsistence | in compensation for the specific articles of of herself and her family for 12 months, household, kitchen, and table furniture, inand, of course, this right obtains in the cluding beds, bedsteads, and bedding enuplaintiff widower here. It appears no such merated therein as his absolute property and provisions were on hand at the time of tak- of which the administrator had deprived him; ing the inventory, and he is therefore enti- and beyond question he is entitled, in the tled to a reasonable appropriation under the circumstances of the case, to a total of $600 express provisions of section 115 out of the under the two sections when read together assets of the estate to satisfy such deficien- on account of these items alone. The court cy. This the court found to be, and fixed allowed plaintiff but $100 under section 114 by its judgment at, $100. in compensation of the enumerated articles therein, whereas it should have allowed him $500 on that score in connection with the allowance of $100 under the succeeding sec tion to supply a deficiency as for provisions, for it appears that the estate possessed property of the kind and character enumerated in the last clause of section 114, that is household, kitchen, and table furniture including beds, bedsteads, and bedding considerably in excess of the value of $500, which he was entitled to claim and hold by the selection of the specific articles. The court erred in allowing plaintiff $200 under these two sections, when it should have allowed $600, because there was ample property of the kind and character contemplated to supply that amount.

By the succeeding and last clause of the statute, the widow is allowed absolutely her household, kitchen, and table furniture, including beds, bedsteads and bedding, not to exceed the value of $500, and, of course, the identical right obtains in the plaintiff widower here. It is therefore entirely clear that plaintiff is entitled to an award of $500 on account of the property enumerated in the last clause of the statute; that is, household, kitchen, and table furniture, including beds, bedsteads, and bedding. This is true because all of the property owned by the decedent as is shown by the inventory in the récord consisted of the kind and character enumerated in this clause of the statute; that is, household, kitchen, and table furniture, beds, bedsteads, and bedding. By the appraisement annexed to the inventory, it appears this property was valued at $770.45. It afterwards was sold for $1,350. Obviously there was sufficient property of the kind and character last mentioned to allow plaintiff the full amount of specific property given him by the statute; that is to say, $500. By the conduct of defendant public administrator in taking the property into his charge, plaintiff was denied this absolute right conferred by the statute.

There were no grain, meat, vegetables, groceries, and other provisions on hand as is contemplated by the statute, and therefore plaintiff was entitled to a reasonable allowance out of the assets of the estate to supply such deficiency, for such is directed by section 115, R. S. 1909. That statute is as follows: "If the grain, meat or other provisions allowed the widow in the preceding section shall not be on hand at the time of taking the inventory, the court shall make a reasonable appropriation out of the assets of the estate to supply such deficiency." Under this section the court allowed plaintiff $100 for his year's support and to supply the deficiency appearing under the preceding section (114).

[4] Section 116 is as follows: "In addition to the above, the widow may take such personal property as she may choose, not to exceed the appraised value of four hundred dollars, for which she shall give a receipt." Under this section the widow is allowed to take such personal property as she may choose, in addition to that allowed by the preceding section, but not to exceed the appraised value of $400. All of the authorities declare this to be an absolute allowance to the widow as her property and, of course, under the provisions of section 120, it is in this case the absolute allowance as well to the plaintiff widower in the estate of his deceased wife. The court recognized this, and allowed plaintiff $400 as his absolute property, as was proper under the latter section.

To the suggestion that an allowance by the court of $600 under sections 114, 115, and an additional allowance of $400 under section 116 would total the amount of $1,000, and thus exceed the appraised value of the entire estate which was $770.45, it is to be answered that here, where the property had all been sold by the administrator and converted into money, the court should be guided by the rule of decision prescribed in section 118, rather than by the appraised value of the property. Had the property been retained by the administrator, plaintiff would have been entitled to select specif

[3] Though the allowance of $100 for one year's support is meager, and, no doubt, inadequate, the question was determined by the trial court on the facts, and is therefore not open here for review. However ic articles therefrom under section 114 and this may be, it is certain that if plaintiff to a reasonable allowance in lieu of proviwas entitled to $100 under section 115 to sions under section 115 and $400 in addition supply the deficiency on the score of provi- under section 116. No doubt the appraised sions, etc., he was entitled to an allowance value of the property would control in deterof $500 under the preceding section (114) | mining these amounts in such circumstances,

for the statute last cited seems to so con- | involved to satisfy plaintiff's rights to spetemplate. This being true, it is true, too, cific articles and provisions under sections that all of the property taken at its apprais- 114 and 115, and sufficient, too, when coned value that is, $770.45-would have been verted into money to satisfy his absolute alinsufficient to satisfy plaintiff's allowance of lowance of $400 under section 116. $100 and absolute rights, which total the [5] We come now to consider the defendamount of $1,000. In such case the loss would ant's counterclaim. As before stated, the fall on plaintiff because the estate was insuf- administrator filed a counterclaim in the proficient to compensate the $400 allowance un- bate court, and sought a recovery for the use der section 116 after the selection of specific of the property by plaintiff during the time articles was made under section 114, and the between October 1, 1909, and the early part reasonable allowance for provisions under sec- of April, 1910, when the administrator came tion 115. But, be this as it may, the admin- into possession. As the case originated in istrator did not retain the property, and the the probate court, the power of the circuit matter of its appraised value is therefore court to hear and determine the counterwholly immaterial for the reason it was sold claim is, of course, derivative solely through and converted into money. Plaintiff's rights the appeal from the probate court. But unattach to the money received for the proper- der sections 198, 199, 200, R. S. 1909, the proty and are to be determined in view of that bate court is possessed of jurisdiction to enfact, for the statute so prescribes. Section tertain a counterclaim interposed by an ad118, R. S. 1909, is as follows: "If the wid- ministrator in cases where counterclaims are ow do not receive the property thus allowed otherwise authorized by law. See Mitchell her, and the same be sold by the executor v. Martin, 63 Mo. App. 560; In re Jarboe's or administrator, the court shall order the Estate, 227 Mo. 59, 79, 80, 81, 127 S. W. money to be paid to the widow at any time 26; Albert Grocer Co. v. Estate of Painter, before the same be paid out for debts or 66 Mo. App. 481; Bealey v. Smith, 158 Mo. be distributed." On a sale of the property | 515, 59 S. W. 984, 81 Am. St. Rep. 317. the administrator realized $1,350 therefor, [6] However, under the general statute auand this is amply sufficient to satisfy plain-thorizing counterclaims (section 1807, R. S. tiff's claims amounting to $1,000. Though it 1909) the counterclaim must be one in favor be that plaintiff's claims could not have of a defendant and against a plaintiff bebeen satisfied in full by accepting the property at its appraised value, he was entitled, under section 114, to specific articles of household property which without the allowance for provisions amounted to $500, and was given an allowance of $100 under section 115 and to other property, according to his choosing, to the value of $400 under section 116, the latter to be satisfied out of so much of the estate as remained in the hands of the administrator after his selection of specific articles was made and the allowance for provisions satisfied. If to I which a counterclaim could arise. If the satisfy these claims would operate to ex- counterclaim is to be considered at all, it haust the estate and leave a deficiency be is because it is "connected with the subject sides, even so plaintiff would have had all of of the action." The words "subject of the the property of the estate for his claims, action," employed in the counterclaim statand it may be the claims not fully satisfied acute, denote the plaintiff's principal primary cording to the appraised value. But, be this as it may, the administrator having sold the property for $1,350, plaintiff is entitled to participate in the inflation of values over and above the appraised value proportionately with the estate, and it is obvious the statutes so contemplate. He therefore is entitled to allowances as follows: $500 under section 114 in compensation for specific articles of furniture, $100 under section 115 on account of provisions, and $400 in compensation of his additional absolute allowance under section 116. This is true in view of the finding for $100 on account of provisions because the statutes direct payment accordingly when the property is sold, and it appears, as it does here, that there was suffi

tween whom a several judgment might be had and arising out of one of the following causes of action: First, a cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim or connected with the subject of the action; second, in an action arising on contract, any other cause of action arising also on contract and existing is no contract right involved here, and neither is there a transaction set forth as the foundation of the plaintiff's claim out of

at the commencement of the action. There

right, to enforce or maintain which his action is brought. It is said the phrase is different from "cause of action," in that it signifies the ultimate or primary title, right, or interest which a plaintiff seeks to enforce or protect, and not merely the wrong to be redressed in the particular case. See McCormick Harvesting Mach. Co. v. Hill, 104 Mo. App. 544, 79 S. W. 745; Bliss, Code Pleading (3d Ed.) §§ 126, 373; Pomeroy, Code Remedies (4th Ed.) § 651 et seq. Here plaintiff's primary and principal right, which is asserted in his complaint, relates to his allowance of absolute property out of his wife's estate, and in assurance of this right he withheld and used all of the property of the estate for the several months above stat

assertion of that right, the administrator | question the statute mentioned provides as seeks by his counterclaim to recover compen- follows: "And after the making of such orsation at least for the use of such property der and until such time as the same may as plaintiff was not entitled to withhold from him. We believe the claim of the administrator for this should be regarded as "connected" with the subject of plaintiff's action, for the courts are prone to liberally construe the statute and effectuate its obvious intent and purpose in permitting the adjustment of such claims as appear to be thus connected, and may be intelligently settled in the same controversy. See McCormick Harvesting Mach. Co. v. Hill, 104 Mo. App. 544, 79 S. W. 745; Bliss, Code Pleading, § 373. We say this, too, because it may be where an entire estate is withheld in such circumstances and the property seriously damaged so that its corpus would be diminished in value it would be highly unjust to deny the right of the administrator to counterclaim for this tort of the widower or widow and compensate it out of the allowance of absolute property, especially if the tort-feasor was insolvent. But no such question is involved here, and it is adverted to solely for the purpose of vindicating the right of counterclaim in some cases where injustice on innocent parties, such as creditors and distributees, might be entailed without it. It is certain that there can be no right of recovery on the counterclaim in any case for the mere use of the property allowed absolutely by the statute to the widower or widow as the rights pertaining to such property pass to him or her in the first instance and not to the estate. But though such be true, speaking generally, the withholding and use of that portion of the property over and above the absolute allowances are not on the same footing and a different question arises as to that matter. It may be a right of recovery obtains in some cases as to such withholding and use, and it may be that no right of recovery arises on the counterclaim for mere use of the property because the relation of landlord and tenant does not appear, but we will pass those questions as we prefer to predicate the judgment of the court on another instead.

For the purposes of the case only, we may concede that the counterclaim stated a cause of action between these parties which was connected with the subject of the plaintiff's action, but even then the proof reveals that no recovery should be had thereon.

[7, 8] It appears that on the 29th day of October the probate court, upon a hearing being had, ordered that no letters of administration should issue upon the estate of plaintiff's deceased wife, for the reason that it was not greater in amount than is allowed by law as the absolute property of the widower and awarded it all to him. By section 10, R. S. 1909, the probate court possessed full and complete jurisdiction touching this matter, and under that statute plaintiff was rightfully in possession of the property until the order so made was revoked. On this

be revoked, such widower, widow or minor children shall be authorized to collect, sue for and retain all the property belonging to such estate; if a widow or widower, in the same manner and with the same effect as if he or she had been appointed and qualified as executor or executrix of such estate." Obviously plaintiff was rightfully in posses sion of the property under an adjudication of a court of competent jurisdiction, and was therefore not liable to respond for its mere use to any one until such order was revoked. McMillan v. Wacker, 57 Mo. App. 220; Griswold v. Mattix, 21 Mo. App. 282. Had the property been damaged by plaintiff during the time he is alleged to have withheld it and the order of the probate court been revoked, it may be another question would arise concerning the residue after the absolute property was deducted. But that proposition is not before us, and we express no opinion thereon. It is sufficient for the purposes of the present case to say that it does not appear that the order of the probate court made on October 29th was ever set aside or revoked, unless the fact that the public administrator thereafter filed upon and took charge of the estate should be so considered. It therefore appearing that plaintiff was in possession of the property under the order of the probate court, he should be regarded as rightfully in possession thereof and without an obligation to compensate for its use, at least until the public administrator became clothed with authority thereabout, and he persisted, notwithstanding, to withhold and use the property. As before stated, it does not appear the order of the probate court was revoked unless the mere filing on the estate by the public administrator would operate this result. When the public administrator filed on the estate does not appear. That he inventoried it January 20, 1910, and made a supplemental inventory on April 8, 1910, does appear, and there is naught in the record tending to show the public administrator attempted to exercise any authority before January 20th. It is true the statute (section 302, R. S. 1909) in its fourth subdivision authorizes the public administrator to take charge of an estate "when money, property, papers or other estate are left in a situation exposed to loss or damage, and no other person administers on the same," and by section 305 he is authorized to enter upon the discharge of his duty under section 302 by the mere filing of a notice of the fact in the office of the clerk of the probate court without an order of the probate court touching the matter. See Leeper v. Taylor, 111 Mo. 312, 19 S. W. 955. But, though such be true, it is obvious that the mere filing on an estate by the public administrator cannot operate ipso facto to revoke an order of nonadministration made by the

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