44 Mo. App. 35 | Mo. Ct. App. | 1891
Theresa Pfaff, the wife of Joseph Pfaff, died at St. Peters, in St. Charles county, in June, 1888. On the fifth day of that month John Pfaff, the defendant, was appointed administrator of her estate. He
The administrator’s answer was a general denial. He also attempted to state an independent cause of action against the plaintiff in the nature of a counterclaim, but wholly failed to do so. The cause was submitted to the court, and the finding was in plaintiff’s favor with the additional order that a copy of the judgment be sent to the probate court and the claim should be there classified in the fifth class of demands, and paid out of any assets belonging to the estate in the hands of the administrator. After the case was begun it appears from the record that Joseph Pfaff, the husband, was permitted by the court to en'ter his appearance, and be made a defendant in the case. He filed an
Before we pass to the discussion of the evidence, we wish to say that the plaintiff has proceeded on the theory, that the property still remained in specie in the hands of the defendant. It is shown by the evidence that, at the time this suit was instituted, the property had been sold by defendant as administrator. Therefore, the proper way would have been to allege these facts, in addition to others necessary to entitle the plaintiff to relief, and thereby seek to charge the proceeds with the payment of the debt. It is not necessary, as claimed by the defendant’s counsel, that the identical property, owned by the feme covert at the time she contracted the debt, must remain to entitle the plaintiff to a decree. If the original property has been disjjosed of, and other property of a like or different character substituted, the substituted property must be made to answer for the original. This question was discussed and passed on by us in the case of Chicago Coffin Co. v. Fritz, 41 Mo. App. 389. On the same principle the proceeds of the sale in the hands of the defendant must take the place of the property itself.
A careful reading of the record convinces us that the plaintiff’s evidence is sufficient to make out a case. We are satisfied with the court’s finding concerning the character of Mrs. Pfaff’s title to the property in controversy. The evidence is very satisfactory, that she bought and paid for the greater part of it out of the profits arising from the business of the hotel and saloon,
“In case of the death of a father leaving no widow, but minor children under sixteen years of age, such minor children shall be entitled absolutely to the property and allowances that the wife would have been entitled to under the provisions of this chapter, if she had survived her husband; and, in case a widow shall*41 die leaving minor children under sixteen years of age, they shall be entitled to the same property and allowances absolutely as the mother was entitled to take at the death of her husband.”
The defendant insisted that he was entitled to credit for the amount of the allowance.. This contention was disregarded by the circuit court, and the defendant assigns this for error. It is quite evident that this section affords no authority or warrant for the allowance. This case is essentially different in its facts from that of Lewis v. Castello, 17 Mo. App. 598, upon which the defendant relies. In the latter case the mother of the minor was a widow at the time of her death. This entitled her child to an allowance out of her estate.