Jewell v. Knettle

39 Mo. App. 262 | Mo. Ct. App. | 1890

Smith, P. J.

This is an appeal from the judgment of the circuit court of Vernon county, allowing the respondent, who is the widow of R. H. Knettle, deceased, and the administratrix of his estate a credit of $139.15 on her final settlement. It appears that the personal estate of the deceased amounted to $260.85, which the widow was allowed to take under the provisions of sections 107, 108 and 109, Revised Statutes, 1879. This left the widow short $139.15 in the amount of the additional property allowed her by the said statutory provisions. It further appears that, at the time of the death of her husband, he owned certain real property which was subject to a deed of trust to secure the payment of a certain indebtedness; that after the death of the husband there was a sale of real estate under the deed of trust which brought $785.70 above the amount of the lien of the deed of trust, and this amount was paid over to the administratrix and with which she charged herself, in her settlement with the probate court. It was out of this fund that she sought to procure said allowance of $139.15 to make up the deficiency in the amount of the personal property, to which she should have been entitled, had there been that amount. The probate court disallowed this claim, but the circuit court allowed it, and the single question is, was she entitled to the allowance under the statute.

It will be seen by reference to the sections of the statute, already cited, the provision there made for the widow must come from tlie personal estate only. The land belongs to the heirs. Where real estate is converted into money, whatever surplus remains, after the proper application of the object of the conversion, still represents the realty for the benefit of the heirs, and cannot be merged in the personalty for the purposes which only pertain to that classification. In re Motier's Estate, 7 Mo. App. 514; Richey v. Withers, 72 Mo. 556; Drowry v. Barber, 68 Mo. 155; Woerner’s Am. Law of Adm’r, 187, sec. 91.

And whether the real estate is sold for debt in pursuance of authority conferred by the deceased 'in his lifetime, or under the power granted to the representative by the statute, is im material so far as the money arising therefrom in the hands of the representative is concerned. The money received from such a • source must go to the heir, or the creditor, and cannot be diverted to another purpose.

It follows, therefore, that the judgment of the circuit court must be reversed, and the cause remanded with directions to proceed in the matter of said final settlement in accordance with the views we have herein expressed.

All concur.