Whaley v. Whaley, 50 Mo. 577

Whaley v. Whaley

50 Mo. 577 | Mo. | 1872

Wagner, Judge,

delivered the opinion of the court.

The plaintiff, who is the widow of William Whaley, deceased, made an application to the County Court for an appropriation out of the assets of the estate of the deceased, to supply a deficiency of provisions to which it was alleged she was entitled. The County Court appropriated a specific amount, and the executors appealed *580to the Circuit Court. On a hearing in the latter court, a jury was impaneled, the court gave for their guidance regular instructions, and they found a verdict for plaintiff, upon which a judgment was rendered in the ordinary form, that the plaintiff do “recover,” etc., “ of the-executors,” etc. From that judgment this writ of error is prosecuted.

From the bill of exceptions it appears that at the time of the death of William Whaléy his children were all grown, and but one remained at home, he paying his board by occasional-services, and that there were others working on the farm and in the house, but that they left shortly thereafter; that the widow never had any children by the deceased, but that she had a daughter, Mrs. Peake, by a former husband, who, together with her husband and two children, was residing at the testator’s house at the time of his death, temporarily and free of charge, and that they afterwards continued with the widow, and were with her when the application ivas made for an additional appropriation, the daughter assisting about the housework, and the husband the out-door work.

Upon this state of facts, at the instance of the plaintiff, the court instructed the jury that the law gave to the widow the possession of the mansion house and messuages for one year, or until dower was assigned, and that she was entitled to the necessary assistants to enable her to keep house and to manage the farm; that such assistants were members of her family, and were to be considered in the provisions made for the support of herself and family for twelve months.

An additional instruction was given, that if the jury should find that at the time of the allowance by the County Court, Peake was living with Mrs. Whaley, not as a boarder, but for the purpose of assisting her in taking care of the property, then he was a member of her family, and should be considered as such in making the appropriation; that if Mrs. Peake, at the time of the allowance, was living with Mrs. Whaley, assisting her, and doing her work as a necessary assistant, and not a boarder, then she was a member of the family, and should be considered as such in the appropriation.

*581The statute under which this proceeding was had provides as follows: “Sec. 33. In addition to dower, the widow shall be allowed to keep as her absolute property a family Bible and other books, not to exceed -two hundred dollars; all the wcariug apparel of the family, her wheels, looms, and other implements of industry; all yarn, cloth, and clothing made up in the family for their own use; all grain, meat, vegetables, groceries and other provisions on hand and provided, and necessary for the subsistence of the widow and her family for twelve months ; her household, kitchen and table furniture, including beds, bedsteads and bedding, not to exceed the value of five hundred dollars. Sec. 34. If the grain, meat, or other provisions allowed the widow in the preceding section, shall not be on hand at the time of taking the inventory, the court shall make a reasonable appropriation out of the assets of the estate to supply the deficiency.” (Wagn. Stat. 88.)

It is evident that the real question in this case is, who are to be considered members of the family within the meaning of the law? Family, in a limited sense, signifies the father, mother and children. In a more extended sense it comprehends all the individuals Avho live under the authority of another, and includes the servants of another. The provisions of the laAV are founded in humanity and should be liberally construed. No given rule can be laid down Avhich Avill apply to each particular case. The position and situation of some families require servants, and in such cases I think servants Avould be included in the class for which provision should be made. By taking the context of the Avhole of section 33 together, it seems to me that it is easy to arrive at the intention of the laAV-makers. The section uses the term “ family” several times, and shoAVS plainly what it refers to. It speaks of the “ Avearing apparel of the family,” the “ clothing made up in the family for their own use,” and “the provisions necessary for the subsistence of the widoAV and her family.” Family, as here contemplated, means children, or those persons who have a legal or moral right to expect to be fed and clothed by another. But those persons Avho have neither a legal nor moral *582claim to the bounty of another cannot be placed in that category. Manifestly, as Mr. Peake and his wife and children could not have their wearing apparel and clothing included in the articles the widow was entitled to keep for her family, then they could not be included in the appropriation for provisions, for the same family is intended and spoken of throughout the section.

The first instruction is also erroneous. The law says that, until dower is assigned, the widow may remain and enjoy the mansion house of her husband and the messuages or plantation thereto belonging, without being liable to pay any rent for the same. (Wagn. Stat. 542, § 21.,) She does not hold the premises for any specific time, but only until her dower is assigned; and surely if she has the premises, a farm, for instance, without payment of rent, and derives all the profits accruing therefrom, she will not be entitled to have the laborers who manage it for her.supported out of the estate, on the ground that they are,members of her family. Whether the widow in this case got too much or not, I do not know, but the court evidently proceeded on a wrong theory.

I think the court also erred in submitting the matter to a jury. It was not a legal proceeding. It was not an action to recover money, or property, or damages, but it was a right depending wholly upon the exercise of the discretion of the court. The judgment is erroneous because it is an absolute judgment against the executors, instead of an appropriation of the assets in their hands, as the law requires. I mention these matters in order that they may be obviated when the case is again heard. For placing, as I think, a wrong construction upon the statute, the judgment will be reversed and the cause remanded.

The other judges concur.