In re Estate of Loyd

44 Mo. App. 670 | Mo. Ct. App. | 1891

Gill, J.

This is a controversy between Mary A. Lloyd, the widow, and J. A. Lander et al., judgment creditors, of Wm. C. Lloyd, deceased. It seems that, in 1889, Mr. Lloyd died possessed of a small amount of personal property, and, as well, the owner of certain lands, which, however, had been incumbered by a deed of trust, executed by himself and wife, jointly. About a year after his death the land was sold in pursuance of the terms of, the deed of trust, and there was realized therefrom, after the payment of the secured debts, a surplus of $394.55. This surplus was paid over to Yarn ell, the administrator, and thereupon two motions were filed in the probate court — one by Lander et al. asking that said amount be paid to them as fourth-class creditors, and the other by Mrs. Lloyd, the widow, requesting the same be paid to her on account of a deficiency in her allowance under section 107, Revised Statutes, 1879. The court denied the motion of Lander et al., and sustained that of the widow. The matter was appealed to the circuit court, where the action of the probate court was approved, and from this judgment of the circuit court Lander et al. have appealed to this court.

I. The decision of the lower court, in thus adjudging this surplus to Mrs. Lloyd, is opposed to the uniform holding of the appellate courts of this state, and its judgment, therefore, must be reversed. The proceeds of the sale of lands of a decedent — whether sold under the terms of a deed of trust executed during the life of the owner, or sold by order of the court to pay debts — cannot be used to make good a deficiency in the widow’s allowance under section 107, et seq., Revised Statutes, 1879. Ritchey v. Withers, 72 Mo. 556; Jewell v. Knettle, 39 Mo. App. 262; In re Motier's Estate, 7 Mo. App. 514; 1 Woerner’s Am. Law of Adm’n, sec. 91. It is immaterial whether we call such surplus real or personal estate (when such conversion occurs); it does not belong to that class of estate out of which such absolute allowance for the widow is provided for. Such surplus goes to the heirs, subject of course to the payment of debts.

The judgment, therefore, of the circuit court is reversed and the cause remanded.

All concur.