Opinion
No. 7069.
November 21, 1952.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY, WALTER E. BAILEY, J.
Helen E. Redding, Joplin, for appellant.
Tatum Wise, Joplin, for respondent.
This is an appeal from a judgment of the Circuit Court of Jasper County in an action seeking to sell premises in which defendant had a homestead and dower interest, and to apportion the proceeds according to the respective rights of the parties. It is a statutory action brought under the provisions of Section 513.525 RSMo 1949, V.A.M.S. formerly Section 618 RSMo 1939, and not a partition action as was the case in Hammons v. Hammons, 300 Mo. 144, 253 S.W. 1053 and Dalton v. Simpson, 270 Mo. 287, 193 S.W. 546, 550.
This statute provides:
"whenever any dwelling house, out-building and the land in connection therewith, in which a homestead shall exist, shall exceed the respective value mentioned in [section 513.475], and a severance of such homestead would greatly depreciate the value of the residue of the premises, or be of great inconvenience to the parties interested either in such residue or in such homestead, either party may apply to the circuit court by petition, setting forth the facts, for relief; and upon the hearing of such petition, if it shall appear that such homestead cannot be occupied in severalty without great inconvenience to the parties interested in such homestead or in such residue, the court may order such homestead to be transferred to such other parties, and the payment of the value of the homestead interest to the owner thereof; or, at the option of such owner, may order such other parties to transfer such residue to him, and order him thereupon to pay such other parties the value thereof, to be fixed by the court; or, if the case require it, the court may order a sale of the whole premises, and apportion the proceeds between the parties; and such court may make all such orders in the premises as shall be equitable and needful."
The petition alleges that the plaintiffs are the sons and sole heirs at law of Earl Osborn, who died January 30, 1950, and that the defendant is the widow of deceased. That plaintiffs are the children of a former marriage and Earl Osborn and defendant had no children by their marriage; that Earl Osborn died seized of an estate of inheritance, which was a certain described lot in Joplin and that upon the death of Earl Osborn the real estate descended, subject to the defendant's homestead, to plaintiffs, share and share alike. That no dower or homestead has been assigned or set off to defendant; that this real estate, which was a house and lot, was occupied by Earl Osborn and defendant at the time of his death as their homestead, that the defendant has continued to claim and occupy the same as her homestead by right of quarantine and that said house and lot exceeds the value of $1500. It was also alleged that a severance of such homestead would greatly depreciate the value of the residue of the premises and greatly inconvenience the plaintiffs therein.
The prayer was for relief in accordance with the provisions of Section 513.525 RSMo 1949, V.A.M.S., and that the court order a sale of the whole premises and apportion the proceeds between the parties plaintiff and defendant as their respective interests may appear, and that the court make all such further orders in the premises as shall be equitable and needful.
The answer admitted most of the allegations in the petition; alleged that defendant had made application to have her homestead set off and the title thereto vested in her as the widow of said Earl Osborn, in accordance with Section 612 RSMo 1939, Section 513.495 RSMo 1949, V.A.M.S. It is not stated where this application was filed but the cited Section applies to Probate Court proceedings. The answer then prays the Circuit Court to set off such dower interest as she would be entitled to after the setting off of her homestead.
The evidence showed that Carrold Osborn and Ormond A. Osborn were children of Earl Osborn by a former marriage, and that Earl Osborn had no children by his second wife, the defendant; that Earl Osborn died January 25, 1950. His first wife had obtained a divorce from him in California. When Earl Osborn died, he was the owner of lot 46 in Murphy's First Addition to the City of Joplin. Earl Osborn left no will. The title to the house and lot was in his name and he and defendant were living in the house at the time of his death. The evidence is not clear but apparently the lot was 50 x 150 feet and the house had four rooms with bath and a garage. It had been built for 15 years and was built by deceased. It was appraised at $7000.00 and Carrold Osborn testified, "I would set the appraisal around approximately $7,000.00"
Carrold Osborn also testified that he did not desire to buy the property, and that this lot was given to his father and mother by his grandfather. Earl Osborn had been married to the defendant, Zetta Osborn, approximately seven years at the time of his death.
Plaintiff Ormond A. Osborn testified that he had heard the testimony of his brother Carrold Osborn and that his testimony was correct. He further testified that he did not wish to buy the property in question.
The evidence further showed that the City of Joplin had a population of 37,144. We also take judicial notice that the population was less than 40,000. Mo.Digest, Evidence. There was some discussion among counsel about evidence of the exact population and the court continued the case until the 30th of November, 1950, so further evidence on this question could be produced.
At the close of all the evidence, counsel for defendant stated in open court: "The widow wants to buy the place and let the record so show."
The record before us shows no further action in this case until July 12, 1951, when the court rendered a decree finding the facts as shown by the evidence and further finding that said real estate descended to the plaintiffs, subject to defendant's homestead and dower rights, if any; that her dower or homestead had not been set off to her, that she was then occupying the premises and that "The land connected therewith exceeds the homestead value of $1500 prescribed and set out in Section 513.475 RS Mo 1949, V.A.M.S., being Section 608 RS Mo 1939."
The court then found that a severance of the homestead would greatly depreciate the value of the residue and greatly inconvenience the plaintiffs, that it could not be occupied in severalty without great inconvenience to all the parties and that at the time of his death, Earl Osborn owned no other real estate in Missouri. The court then found that defendant had exercised her option to buy the remainder of the premises as provided by Section 513.525 RSMo 1949, V.A.M.S., and that the residue should be transferred to her upon the payment by her to plaintiffs of the value thereof "to be fixed by the court".
The court then found that it appeared defendant may be entitled to some dower interest in the real estate over and above her homestead interest and he appointed three appraisers "under authority of sections 513.495, 513.505, and 513.525 RSMo 1949, V.A.M.S., being sections 612, 614 and 618 of the RSMo 1939, for the purpose of appraising the value of said real estate herein above described." The appraisers were ordered to appraise the real estate and to determine the value of defendant's dower therein under the annuity tables set out in Section 442.530 RSMo 1949, V.A.M.S. They were further instructed to reduce the value of such dower so found by the value of the homestead, on a basis of $1500 and it was then provided "and if the commissioners and appraisers shall find that the interest of the widow-defendant in such homestead shall equal or exceed one-third interest in said real estate for and during defendant's natural life, no dower interest shall be ascertained for said defendant; * * *."
The appraisers were also ordered to report back to the court in writing, duly verified, and they were to be paid $10 per day for their services.
The decree then provided that after the appraisers report should be filed in the court, the parties should have 30 days to file their exceptions thereto in writing and if no exceptions were filed or if filed and overruled, "plaintiffs shall transfer their interest in said real estate by their properly executed and acknowledged deed to defendant, if defendant shall, within 30 days after the approval of the report of said commissioners and appraisers by the court, pay into Court the value of said real estate as appraised by said commissioners and appraisers as aforesaid, less the amount of defendant's dower interest in said real estate to be appraised and determined as aforesaid, if any such dower interest there shall be over and above the value of $1500.00; * * *."
The decree then indicated, among other things, that $1500.00, when and if the real estate was purchased by defendant, would be paid into the hands of a trustee as the value of the homestead and the income arising from this fund would be paid to the defendant and that upon her death, or remarriage, the principal should be paid over to the plaintiffs. All monies received for the real estate over the $1500 set aside as homestead rights and the costs of the litigation, were to be divided between plaintiffs. If defendant should not pay into court the value of said real estate, it was to be sold by the sheriff as provided by law and the proceeds distributed as above indicated.
Neither party has raised the question, but it is the duty of this court, of its own volition, to determine whether this is a final judgment from which an appeal may be taken. Deeds v. Foster, Mo.Sup., 235 S.W.2d 262. Hays v. Dow, 237 Mo.App. 1, 166 S.W.2d 309. Ash Grove School District R-4 v. Callison, Mo.App., 252 S.W.2d 96.
It seems to us that this decree is interlocutory and not final. Much remains to be done before the issues are all determined as to all the parties.
The record before us shows that the appraisers, after being duly qualified according to law, made a preliminary report to the court stating that they had gone to the premises in question for the purpose of viewing and appraising them and had been refused admittance to the house, so they could inspect it for the purpose of appraisal. They asked the court to make an order instructing the sheriff to accompany them to the premises and use such force to gain entrance as might be necessary to permit them to make a proper inspection and appraisal. The court received this preliminary report and made the order requested. Nothing further appears in the record as to what the appraisers did and we assume that their activities were held in abeyance for the reason that the next day a motion for new trial was filed and when it was overruled, a notice of appeal was filed. See Hays v. Dow, supra. Their report of appraisal and the computed value of the homestead and dower is yet to be reduced to writing and filed. Whether it will be approved by the trial court, we do not know. Whether defendant will purchase the premises and pay for them or whether they will be sold by the sheriff if she does not, are matters yet to appear, and even then are not final until approved by the court, after hearings upon filed exceptions of the parties, if any.
Without further evidence, the appraisers cannot ascertain the value of defendant's dower or the present value of the homestead as there is no evidence in the record showing defendant's age. Even with that evidence supplied, there is no certain way to ascertain the present value of the defendant's homestead. Her homestead rights, if dependent only upon her death, could be approximated by use of the mortality tables, because death is an eventuality of the passage of time. It will certainly happen. There is nothing more certain than death, or more uncertain than the time of death. Mortality tables are accounts kept of the results of the study of a multitude of persons of a specific age, over a great number of consecutive years from which is deduced average results as to the time death is likely to occur, or to phrase it another way, to estimate statistically how long one in good health and of a specified age can be expected to live.
A statistical determination of the approximate date when a woman will remarry is much more difficult for the reason that numerous elements, other than death, enter into the computation. While death is inevitable and certain, marriage is, theoretically at least, a volitional act. Two wills must combine to create that status. The widow might hesitate to remarry because of the value of the estate to be forfeit by so doing, and the greater the forfeit the greater the inducement to remain single. Its retention might outweigh the anticipated pleasures and benefits of another marriage. And while she might be ever so matrimonially inclined, she would doubtless discriminate among applicants. Furthermore, there must be considered the probability of an offer of marriage, which might not be speedily forthcoming for, however willing she might be, there must be another party ready and willing, who might be even more particular than she in the selection of a spouse. The matrimonial alliance might be accelerated or retarded depending upon whether she was beautiful or homely. The probability of an offer would doubtless be influenced by whether she was a "grass" or "sod" widow and it is altogether probable that the second party, before entering into the marital relation, would give some consideration to the age of the widow. Her age would also have some bearing on the virility of her own connubial inclinations and the older she is, it would seem, the more likely she would be to retain her status of celibacy.
The value of statistical conclusions in individual cases depends upon the selection of a truly representative "control group" with the number of variable factors reduced to the minimum, and in no event will they be competent when the circumstances at bar are too far afield from the experience which the tables record and on which their forecasts are made. Additional factors complicating the making of an accurate re-marriage table can be easily listed, for example, the changing of her mind at the last moment, for "Often change doth please a woman's mind."
Missouri Jurisprudence has not yet advanced to the point where re-marriage statistics have much evidentiary weight in solving this difficult problem. See In re Clark's Estate, 270 Mo. 351, 194 S.W. 54. Annotation 25 A.L.R.2d 1464. Legislation relating to mortality tables has not yet included re-marriage prognostications. We are inclined to agree with the Supreme Court of the United States when it said that the calculation by such a table was "mere speculation bearing the delusive appearance of accuracy", and that it differed from mortality tables "almost as widely as possibility from certainty." Humes v. United States, 276 U.S. 487, 48 S.Ct. 347, 348, 72 L.Ed. 667. It would seem that the legislature has required the courts to evaluate a homestead without providing any accurate method for so doing.
How these appraisers will be able to fix the present value of the homestead would seem to be a difficult problem, but one that must be solved, if possible of solution, in the trial court. When the final chapter is written there, it may be that all parties will be satisfied. In any event, this is no final judgment from which an appeal may be taken, nor have we been able to find any other statutory provision making this appeal an exception to the general rule. See Section 512.020 RSMo 1949, V.A.M.S. Clearly, all the issues in this case have not been decided so the judgment is appealable. The appeal should be dismissed so the trial court will have jurisdiction to further hear and dispose of the matters involved before rendering a final judgment in the cause.
It is so ordered.
BLAIR and McDOWELL, JJ., concur.