Egger v. Egger

• Decision Date: 27 November 1909
• Citation: 123 S.W. 928
• Parties: EGGER v. EGGER et al.
• Court: Missouri Supreme Court

123 S.W. 928

EGGER v. EGGER et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. COURTS (§ 202)—APPEAL FROM PROBATE COURT—SUFFICIENCY OF AFFIDAVIT.

Rev. St. 1899, § 280 (Ann. St. 1906, p. 437), requires, on appeal from probate court, an affidavit by appellant, his agent or attorney, that the appeal is not taken for vexation or delay. Held, that an affidavit by plaintiff's attorney "for and on behalf of plaintiff" is sufficient, though he signed the same as "appellant."

2. APPEAL AND ERROR (§ 228) — RESERVATION OF GROUNDS OF REVIEW — OBJECTIONS TO APPEAL TO INTERMEDIATE COURT.

Under Rev. St. 1899, § 283 (Ann. St. 1906, p. 438), providing that an appeal from probate court shall not be dismissed for defects in the affidavit, etc., if appellant shall file an affidavit to the satisfaction of the court in which the appeal is pending, failure to object in the circuit court to the affidavit on appeal thereto precludes objection on appeal to the Supreme Court.

3. WILLS (§ 795) — RIGHTS OF WIDOW — ELECTION NOT TO TAKE UNDER WILL — FAILURE TO DISSENT.

As the law gives a widow absolutely a certain part of her husband's estate at his death he cannot deprive her of it by will, and, in the absence of a provision requiring her within a specified time to renounce the provisions in his will, she need not do so, but may ignore it and claim what the law entitles her to.

4. HUSBAND AND WIFE (§ 30) — POSTNUPTIAL SETTLEMENT — CONSIDERATION.

Even if Rev. St. 1899, § 4335 (Ann. St. 1906, p. 2378), providing that "a married woman shall be deemed a feme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued," etc., authorizes a wife to contract with her husband so as to bar her right on his death to claim a child's share in his personal estate under section 2937 (Ann. St. 1906, p. 1693), such contract must be supported by a valuable consideration.

5. HUSBAND AND WIFE (§ 30) — POSTNUPTIAL SETTLEMENT — CONSIDERATION.

A contract by a wife by which she agreed, in consideration of a promise by her husband to provide by will for a payment to her from his estate of $75 per month during life, to release all her interests of every sort in his estate, estimated at his death at $300,000, is void for want of consideration.

6. HUSBAND AND WIFE (§ 34) — VALIDITY OF POSTNUPTIAL CONTRACT — BURDEN OF PROOF.

A fiduciary relation exists between husband and wife, notwithstanding the married woman's act (Rev. St. 1899, § 4335 [Ann. St. 1906, p. 2378]), authorizing a wife to enter into contracts as if unmarried, and persons seeking to sustain a postnuptial contract purporting to be a release by the wife of all her interest in her husband's estate have the burden of showing that no unfair advantage was taken of the wife in making the contract.

7. WILLS (§ 792) — RIGHTS OF WIDOW — ESTOPPEL TO REJECT PROVISION IN WILL.

That a widow, while ignorant of her legal rights, and after the probate of her husband's will, signed a writing accepting the provision for her in the will, and for 10 months thereafter received payments according to such provision, does not estop her to renounce such provision, and the postnuptial contract pursuant to which the provision in the will was made, and elect to take under the statute.

8. JUDGMENT (§ 586) — MERGER IN BAR — DIVERSITY OF SUBJECT-MATTER.

A judgment in an action for admeasurement of dower, which affects an interest in land, does not bar a subsequent action against the same defendants to set aside a postnuptial contract between the widow and decedent, and to recover a child's share in decedent's personal estate.

9. APPEAL AND ERROR (§ 854) — REVIEW — GROUNDS OF DECISION — CORRECT RULING BASED ON ERRONEOUS REASON.

Where the evidence excluded was incompetent, it is immaterial on what ground it was excluded.

10. EVIDENCE (§ 441) — PAROL EVIDENCE — VARYING CONTRACT.

Where a written contract is shown, evidence of a former oral contract relating to the same subject-matter is inadmissible.

11. TRIAL (§ 405) — CONCLUSIVENESS OF FINDINGS — EFFECT OF FAILURE TO EXCEPT.

Since plaintiff could not except to or appeal from a judgment wholly in his favor, the findings of fact are not necessarily conclusive on him because of his failure to except.

Woodson, J., dissenting in part.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Katharina Egger against John B. Egger, executor of the will of Fredolin Egger, deceased, and others. Plaintiff had judgment, and defendants appeal. Affirmed.

Barbour & McDavid and Cole, Burnett & Moore, for appellants. E. P. Mann and H. W. Timmonds, for respondent.

VALLIANT, J.

Plaintiff, the widow of Fredolin Egger, deceased, instituted this proceeding in the probate court of Barton county at the May term, 1905, against the executor of her deceased husband's will and heirs and the distributees of his estate, the object of which is to have distribution of the personal property of the estate of her late husband and giving to her one-sixth thereof; that being equal to a child's share, as provided in section 2937, Rev. St. 1899 (Ann. St. 1906, p. 1693). The judgment of the probate court was against her. She appealed to the circuit court of that county. In that court, on application for a change of venue by the executor, the cause was transferred to the circuit court of Greene county, where it was tried and judgment was rendered in favor of the widow, adjudging that she was entitled to a share equal to a child's share of the personal property of the estate amounting to $21,964.45, less what she had already received, leaving a balance due her of $20,739.45, for which, with interest at 6 per cent. from December 1, 1903, until paid, and costs, judgment was rendered. The cause has come to this court on the appeal of the executor and the other defendants from that judgment. There is really no dispute as to the material facts in the case, although there is a little conflict in the evidence on some nonessential points. The only grounds on which the executor resists the widow's claim are: First, an alleged contract, made between the husband and wife, by which she agreed to accept, in lieu of dower and all other claim against his estate, the sum of $75 a month during her life; and, second, her estoppel by her acceptance from the executor of monthly payments at that rate and on that account for a period of about 10 months after her husband's death; also her acceptance from the executor of the sum of about $1,430, the estimated amount of money which the wife had at the time of her marriage and received afterwards, and which she gave into the hands of her husband; that these payments were made to her by the executor as in conformity to the contract and on her signing and delivering to him shortly after the probating of the will a paper writing to the effect that she accepted the provisions made for her in the will.

The undisputed facts are as follows: The plaintiff and her deceased husband were natives of Switzerland. They came to this country in 1866 and married in that year after they came here, in the state of Wisconsin. At the time of their marriage, the plaintiff was a widow with two children, daughters by her former husband, and Fredolin Egger was a widower with six children by his former wife. One of his children died unmarried and without issue, leaving five who are now beneficiaries under this will. There was no child born of this marriage; but their respective children of the former marriages were all brought together in one family and so lived until they were grown and married and settled in their own homes. In 1874 the family moved to Missouri and settled in Barton county. The plaintiff's two daughters, having previously married, were left in Wisconsin.

At the time of her marriage, in 1866, the plaintiff had in hand $290 and in expectancy from the old country about $1,000, which expectancy was afterwards realized, and she gave both these sums into the hands of her husband. It does not appear how much money or property the husband had at the date of the marriage; but the inference to be drawn from the statement in appellant's brief is that it was not great. The statement is: "Fredolin Egger was at the time of his marriage with plaintiff engaged in business in New Glarus, Wis., conducting the only local store, owning some property, and making some loans." But the result shows that after he came to Missouri he was so successful in his business that when he died, in 1901, he left an estate worth about $300,000, of which about $190,000 was personal property. After they came to Missouri, the husband invested the money he had received from his wife, about $1,400, in 160 acres of Barton county land and took the deed in her name, and the title so stood at the time of his death.

February 21, 1898, the plaintiff and her husband signed and acknowledged before a notary the following paper writing, which, because its legal effect is the chief point of controversy, we will quote in full, to wit:

"Know all men by these presents, that I, Katharina Egger, wife of Fredolin Egger, and being now myself of the age of seventy years, and having a great desire that I shall in no way be embarrassed or annoyed by cares of a business nature or character in case I should be deprived by the fatalities incident to human life of the care and protection of my companion and beloved husband, that I have requested, induced and agreed with my said husband this day that for my support, comfort and maintenance, in case of his demise, prior to my death, that he shall by will make the following provision, in effect, in my behalf, that is to say: My said husband, Fredolin Egger, Sr., shall provide by good and sufficient will out of his estate on his demise, and in case that I shall survive him, there shall be placed in the hands, charge, control and custody of Jno. B. Egger, or of some other tr...