457 S.W.2d 212 | Mo. Ct. App. | 1970
This is an appeal by the Director of the Department of Public Health and Welfare from the judgment of the Circuit Court of Barry County reversing and remanding for redetermination a decision of the Director denying on December 23, 1968, the application of claimant, Dollie E. Bradley, for old age assistance benefits on the ground that she had “transferred property rights without receiving fair and valuable consideration therefor and [was] therefore disqualified for public assistance under Section 208.010, RSMo.”
On November 25, 1951, claimant married W. H. Bradley, a widower with seven children, and moved into his home on a 160-acre farm where he had lived “all his life” and where he and claimant continued to reside until their marital union of more than sixteen years’ duration was terminated by his death on December 26, 1967. Claimant brought no property to the marriage other than “three or four pieces of furniture” and her clothing; and, during her marriage to Mr. Bradley, she had no gainful employment or independent income. Her age, not fixed in the record, is indicated by the fact that she had “drawn social security” for some two years prior to her husband’s death, and her eligibility for old age assistance has not been, and is not here, questioned on the ground of age.
By his last will and testament executed on May 3, 1963, and admitted to pro
In accordance with the will, the personalty, other than that specifically described and bequeathed to claimant, was sold for the aggregate sum of $2,626.16, debts and expenses of administration totaling $1,765.-26 were paid, and the balance of $860.90 was distributed to claimant; and the 160-acre farm was sold for $15,000, pursuant to authorization of the probate court, and one-eighth of that amount, i. e., $1,875, was distributed to claimant, each of the testator’s six surviving children, and the heirs of one deceased child.
The Director ruled “that the widow [claimant] was notified that she had some rights in the estate in adequate time to claim [those] rights but that she intentionally waived them. It follows that she transferred property rights without receiving fair and valuable consideration therefor and is therefore disqualified for public assistance under Section 208.010, RSMo.” (All emphasis herein is ours.) That portion of § 208.010, subsec. 2, subd.(l) (a) [as amended Laws 1967, pp. 321, 324],
As the surviving spouse claimant had a right, i. e., a prerogative or privilege [see “right,” Webster’s Third New International Dictionary, p. 1955], of elec
Nevertheless, the Director insists that claimant’s waiver of those known rights by mere nonaction constituted “a transfer of property without receiving fair and valuable consideration therefor within the meaning of subsection 2 of Section 208.-010.” The Director undertakes to support his position (a) by directing attention to the statutory definition of “transfer” in the inheritance tax act [§ 145.010(4)]
As hereinbefore quoted, the Director’s decision was “that the widow was notified that she had some rights in the estate * * * but that she intentionally waived them.” Wherefore, so concluded the Director, “[i]t follows that she transferred property rights without receiving fair and valuable consideration therefor and is therefore disqualified for public assistance under Section 208.010, RSMo.” The quoted language obviously referred to claimant’s marital rights to have, upon proper applications by her and appropriate orders by the probate court, exempt property, a family (or year’s) allowance, and a homestead allowance. Were those rights “transferred,” as the Director found, by virtue of claimant’s waiver thereof by nonaction? We think not.
“Transfer” is a transitive verb; and, in ordinary usage of that term, an active transitive effect or concept is implied thereby and inherent therein. So, where a statutory definition of the term has not been involved, “transfer” has been defined as “ ‘the act by which the owner of a thing delivers it to another with the intent of passing the right he has in it to the latter.’ ”
However, we need not and do not rest our conclusion upon that basis alone, for we are mindful, as the Director here emphasizes, that “transfer” is not a term of fixed and invariable meaning in all contexts, circumstances and cases,
Some of the earlier cases stated that “[t]here is no meaning of the word ‘transfer’ which carries the idea of an act of extinction [extinguishment], or any other idea than that of the bearing [passing] over of a right or title or property in a thing from one to another.” Sands v. Hill, 55 N.Y. 18, 22; Lane v. Albertson, 78 App.Div. 607, 79 N.Y.S. 947, 954; Miles v. Bowers, 49 Or. 429, 90 P. 905, 907. Perhaps it might be better said that the overriding concept inherent in, and the dominant element indispensable to, “transfer” of a given right or interest is that of the passing over to another of such right or interest,
The judgment of the circuit court setting aside the decision of the Director of the Department of Public Health and Welfare and remanding the cause to him for rede-termination of the issues is affirmed.
. Although received without objection, the evidence pertaining to an alleged oral antenuptial agreement was clearly incompetent. §§ 451.220, 432.010, 474.120 (as amended Laws 1903, p. 655), and 474.220. Hence, we have put it behind us and wholly disregarded it, considering only the competent and admissible evidence. Y.A. M.R. Rule 73.01; § 510.310; Ellis v. State Dept. of Public Health & Welfare, 365 Mo. (banc) 614, 624, 285 S.W.2d 634, 641(16, 17); Garrard v. State Dept. of Public Health & Welfare, Mo.App., 375 S.W.2d 582, 587(10).
. Another in the long series of acts amending § 20S.010 was enacted in 1969 [Laws 1969, Il.B.Xo.804] but the quoted language of subdivision (1) (a) of subsection 2 remained unchanged.
. Concerning exempt property, see the suggested forms of application and order following § 474.250 [26 V.A.M.S., 1969-70 cum. pocket part, pp. 66-67] ; § 474.270; Andrews v. Brenizer, Mo.App., 230 S.W.2d 787, 792(6, 7); State ex rel. Meyer v. Arnold, Mo.App., 220 S.W.2d 942, 944(1), 947; Lamar v. Belcher, 154 Mo.App. 571, 572-573, 136 S.W. 748(1); In re Stokes’ Estate, 167 Pa.Super. 128, 74 A.2d 517, 519(2, 4). Concerning the family allowance or year's support, see In re Estate of Guthland, Mo.App., 438 S.W.2d 12, 16(4); Andrews v. Brenizer, supra, 230 S.W.2d at 792(7). Concerning the homestead allowance, see § 474.290, subsee. 7, and the suggested forms following that statute, in 26 V.A.M.S., 1969-70 cum. pocket part, pp. 73-78.
. AV’e cannot agree with the Director that “ownership” of exempt property “vested absolutely in the surviving spouse [claimant] under § 474.250.” Section 474.280, which recognizes the right of an executor to sell, and thus to convey good title to, exempt property at any time before it is received by the widow, clearly indicates that, upon her husband’s death, claimant was vested with the right to apply for exempt property [§ 474.270] and obtain an appropriate order of allowance, but was not vested with the title thereto. See State ex rel. Meyer v. Arnold, supra note 3, 220 S.W.2d at 944, so declaring under §§ 107 and 109, RSMo 1939, predecessor statutes to §§ 472.250 and 474.280, respectively.
.“The word ‘transfer’ as used in this chapter shall be taken to include the passing of property or any interest therein * * * by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift or appointment in the manner herein described.” § 145.010(4).
. “The word ‘transfer,’ as it is used in this Restatement, when applied to interests in land or in a thing other than land, means the extinguishment of such interests existing in one j>erson and the creation of such interests in another person.’’
. Carter v. Butler, 264 Mo. 306, 330, 174 S.W. 399, 405. See Sawyer v. Sanderson & Thomas, 113 Mo.App. 233, 243, 88 S.W. 151, 153; 3 Bouvier’s Law Dictionary (Rawle’s 3rd Rev.), p. 3308; Black’s Law Dictionary (4th Ed.), p. 1669.
. State ex rel. LeNeve v. Moore, Mo. (banc), 408 S.W.2d 47, 49(3); Missouri Public Service Co. v. Platte-Clay Elec. Coop., Mo., 407 S.W.2d 883, 891; State ex rel. MFA Mutual Ins. Co. v. Rooney, Mo. (banc), 406 S.W.2d 1, 3(1); State ex rel. Clay Equipment Corp. v. Jensen, Mo. (banc), 363 S.W.2d 666, 669(3). See § 1.090.
.Witness the forty pages devoted to “transfer” in 42 Words and Phrases (Perm.Ed.) and the current pocket part, but mark that in many of the cases there digested, the scope and meaning of that term were defined or delineated by a controlling statute. E. g., 11 U.S.C.A. § 1(30), Bankruptcy Act; § 145.010(4), Inheritance Tax Act; § 428.020, Fraudulent Conveyances Act.
. In 73 C.J.S. Property § 15b (1), p. 207, cited by the Director in this connection, “transfer” is defined as “an act of the parties or of the law by which the title to property is conveyed from one living person to another; a transaction by which the property of one person is by him vested in another; any act by which the property of one person is vested in another; a passing of title to property from one living person to another * *
. In these respects, claimant’s marital rights were analogous to an optionee’s right. An option is simply “ ‘a right of election to exercise a privilege’ ” [Thacker v. Flottmann, Mo., 244 S.W.2d 1020, 1022(3); Lively v. Tabor, 341 Mo. 352, 361, 107 S.W.2d 62, 66(6), 111 A.L.R. 976] and vests in the optionee “only a right in personam to buy at his election.” Shaughnessy v. Eidsmo, 222 Minn. 141, 23 N.W.2d 362, 365(2), 166 A.L.R. 435; Transamerica Corp. v. Parrington, 115 Cal.App.2d 346, 252 P.2d 385, 389. See Standiford v. Thompson, 4 Cir., 135 F. 991, 996. It “transfers” to the optionee no title to, or interest in, property [Sunray DX Oil Co. v. Lewis, Mo., 426 S.W.2d 44, 49(10); Fisher v. Lavelock, Mo., 282 S.W.2d 557, 560(5); Farmer v. Littlefield, 355 Mo. 243, 245, 195 S.W.2d 657, 659(3); Ware v. Quigley, 176 Cal. 694, 698, 169 P. 377, 378], no “property rights” [Fallbrook Public Ftility Dist. v. Cowan, 9 Cir., 131 F.2d 513, 516, cer-tiorari denied 320 C.S. 735, 64 S.Ct. 33, 88 L.Ed. 435], and no “right in rem.” Standiford v. Thompson, supra, 135 F. at 996. And the optionee’s failure to exercise an option “transfers nothing” but “merely wipes out” the option. In re Hall’s Estate, 99 N.J.L. 1, 125 A. 246, 248(2), affirmed 100 N.J.L. 405, 126 A. 924.
.In this connection, see again the definitions of “transfer” in the authorities cited in note 7, supra, and in 73 C.J.S. Property § 15b (1), p. 207, quoted in note 10, supra.