Cummings v. Cummings

51 Mo. 261

• Court: Supreme Court of Missouri
• Decided: January 15, 1873
• Status: Published

Opinion

Sherwood, Judge,

delivered the opinion of the Court.

This was an application by Mary Cummings, widow of James Cummings, deceased, “for personal property of said estate to the amount of four hundred dollars.” On the hearing of the application by the Common Pleas Court of Cass County, (a court possessed of probate jurisdiction), it appeared in evidence that there was then of the estate of the decedent, notes, money, etc., in excess of $3,000, including the promissory note of the administrator himself, which, inclusive of interest, amounted to over the sum of §700. It was also shown by the sale bill, that the personal property had been sold for §140 60. This was all the testimony. The court refused to grant the application, and after moving unsuccessfully for a new trial, the applicant carried the case by writ of error, to the Circuit Court of Cass County, where the judgment of the Common Pleas Court being affirmed, she brings her case here by writ of error.

The application in this case is based upon §§ 35, 36, and 37, p. 88, Yol. 1 W. S., which are identical, save as to amount, with §§ 30, 31 and 32, of the administration law of 1845, under which it was-held by this court in Hastings vs. Myers” Administrator, 21 Mo., 519, that the right of the widow to $200 worth of personal property, was absolute, did not depend .upon her election, vested immediately upon the death of her husband; was part of her dower, expressly made so by law, and in ease the personal property of the estate was converted into money, and the widow died without receiving her portion of $200, her administrator would be entitled to receive such money against creditors of her husband’s estate.

There is no formality about the application, nor need it be in writing, nor will it be construed with technical nicety. If, however, th,e application be not made until after sale of the property, the court must order' the money arising from the sale, to be paid to the applicant. And the right of the widow will not be at all affected, because she applies for personal property after the same has been converted into money, provided she make her application prior to its distribution or payment for debt. The words “ appraised value,” in § 85, supra., were only designed as a means of valuation, in case the widow chose specific articles.

It has been urged here in argument that the term “ personal property,” employed in the last named section did not embrace dioses in action, but merely property of that description which is ordinarily, the subject of administration sale; but that term is of a much wider signification. (2 Bouv. L. Dict., 894).

The law favors uniformity. The legislature certainly never intended that the widow’s right in this regard, should depend upon the accident of her husband’s dying possessed of horses or cattle, instead of notes and bonds. But the act in question is too plain for further comment; perspicua vera non sunt probanda.

The judgment is reversed and the cause remanded to the Common Pleas Court of Cass county.

The other judges concur.