114 Mo. App. 715 | Mo. Ct. App. | 1905
William Evans died intestate in Livingston county in 1898, leaving his widow, the defendant, and their two married daughters, the plaintiff Martha A. Hill, and Mary J. Wilhite. He left personal
The first exception for our consideration relates to the allowance of $400 claimed by the widow under section 107, Revised Statutes 1899. The personal estate was insufficient by several thousand dollars to pay the allowed debts of decedent. The widow in proper time made her election, under Revised Statutes 1899, section 2944, to take in lieu of dower, a child’s part in the lands whereof her husband died seized. It is claimed that in doing this she became a distributee of the personal as well as the real estate and, as such, renounced the benefit conferred upon her under section 107. There is no merit in this contention. Section 2944 provides: “When the husband shall die leaving a child or children, or other descendants, the widow, if she has a child or children by such husband living, may, in lieu of dower of the one-third part of all lands whereof her husband died or shall die seized of an estate of inheritance, to hold and enjoy during her natural life, elect to be endowed absolutely in a share of such lands equal to the share of a child of such deceased husband. The provisions of this section shall be subject to the payment of her husband’s debts.” The “share of a child” referred to means its share in the real estate alone, not its interest in the personalty. The bounty provided by section 107 belongs absolutely to the widow (provided she applies for it in the time prescribed in section 108) regardless of the
What we have said is not at variance with the cases of Griffith v. Canning, 54 Mo. 284, and Newton v. Newton, 162 Mo. 186, relied upon by plaintiffs. They deal with an election made by the widow of a husband dying childless. The rights of the widow in such cases are controlled by the provisions of sections 2939 and 2941, which by express terms extend the effect of her election to her interest in the personal as well as the real estate belonging to her husband at the time of his death. The very fact that no words of similar import are to be found in section 2944 induces the belief that the legislative intent was to restrict the effect of an- election under that section to the interest of the widow in the real estate.
Objection is made to the allowance of a fee of $400 paid to the attorney of the administratrix for services rendered during the administration, a period of about three years. In rendering his bill, the attorney did not itemize his services, but made a charge in gross. It is not intimated that he overcharged the administratrix for what he did, but it is claimed that his services were largely such as the administratrix could and should have performed herself and for which the commission allowed her under the statute is to be regarded as sufficient compensation. In other words, as she employed an agent to do things she should have done and for which she received pay in her commission, she should pay his charge for such services out of her own pocket.
At the time of his death, William Evans was a very old man and, for several years at the latter end of life, had neglected his business. He owed many debts, aggregating over $9,000. Numerous debts of various degrees of collectibility were owing to him. He owned three farms in Livingston county containing two hundred and forty acres of land in all; two in Chariton county including two hundred and forty acres; three in Carroll
The third exception relates to an item of loss to the
It is the duty of an administrator, recognized by the statute, to employ such agents and servants as may be necessary to enable him properly to preserve and handle the estate. William Evans had Conley in his service in the same- capacity as that for which defendant employed him and he had proven a faithful servant. Although plaintiffs at all times manifested an active interest in the administration of the estate, even to the extent of employing an attorney to assist them in the protection of their interest, no question was raised by them until the loss was sustained, either as to the advisability of having an agent on the ground to look after the property, or as to the ability and integrity of the one employed. This, in conjunction with the facts in evidence, moves us to say that the learned trial judge was right in his finding that defendant acted with due care and for the benefit of the estate in the employment of Conley and, from this premise, we have no hesitation in saying that she should not be held accountable for the result of his unauthorized and wrongful act. An administrator stands in the position of a trustee to those interested in the estate and is liable only for the want of due care and skill, and the measure of due care and skill is that which prudent men exercise in the direction and management of their own affairs. [Merritt v. Merritt, 62 Mo. 150; Booker v. Armstrong, 93 Mo. 49; Myers v. Myers, 98 Mo. 262.] Tested by this rule, we must hold defendant blameless for this loss.
It would unduly lengthen this opinion and serve no useful purpose to discuss the other exceptions urged. We have carefully considered them and pronounce them to be without merit. The judgment is affirmed.