Donaldson v. Donaldson

• Decision Date: 28 March 1913
• Citation: 155 S.W. 791,249 Mo. 228
• Parties: DONALDSON v. DONALDSON et al.
• Court: Missouri Supreme Court

155 S.W. 791

249 Mo. 228

DONALDSON v. DONALDSON et al.

Supreme Court of Missouri.

March 28, 1913.

Rehearing Denied April 8, 1913.

1. APPEAL AND ERROR (§ 706) — BILL OF EXCEPTIONS.

Where, though the bill of exceptions contained in the original abstract did not contain a motion for new trial or call for one, appellant tendered an amended abstract while the case was in division in the Supreme Court, showing that the motion and exception to overruling it appeared in the original bill of exceptions, the Supreme Court in banc will consider the grounds of the motion for new trial, especially where respondent raises no objection.

2. STATUTES (§ 190) — CONSTRUCTION.

Where the words of the statute are plain and unambiguous, there is no room for judicial construction.

3. DIVORCE (§ 168) — JUDGMENT — COLLATERAL ATTACK.

The decision of an issue by a court of competent jurisdiction is a complete bar thereon to any future action under the doctrine of res judicata, so that where a divorce was granted to a husband for desertion by the wife, and the decree was not reversed, she cannot afterwards claim, in a suit involving property rights, that she left him for his own fault.

4. DIVORCE (§ 321½) — EFFECT — CONTRACT — PROPERTY RIGHTS.

Under Rev. St. 1909, § 2378, providing that, in cases of divorce from the bonds of matrimony, the guilty party shall forfeit all rights and claims under the marriage, and section 359 providing that, if a husband be divorced from the wife for her fault or misconduct, she shall not be endowed, a wife divorced for her own desertion lost all rights depending upon the marriage, and hence could not afterwards complain of alleged fraud by the husband in the execution of an antenuptial contract or contract executed during marriage relating to her marital rights.

5. FRAUD (§ 25) — RIGHT OF ACTION.

To be actionable, fraud must be joined with injury.

6. HUSBAND AND WIFE (§ 6) — TRANSFERS BY HUSBAND — FRAUD OF MARITAL RIGHTS.

A wife may have avoided conveyances by the husband in contemplation of marriage made in fraud of her marital rights; she occupying the same position as a creditor in that respect.

7. DIVORCE (§ 1) — POLICY OF LAW.

Dower is favored in the law and is awarded in case of doubt.

8. DEEDS (§ 54) — DELIVERY.

A deed is not operative until delivery.

9. DEEDS (§ 56) — DELIVERY — INTENT.

Delivery of a deed depends on intent and is usually a mixed question of law and fact.

10. HUSBAND AND WIFE (§ 35) — ANTENUPTIAL CONTRACTS — VALIDITY.

A husband has the burden of showing that an antenuptial contract was fairly entered into and is just and adequate.

11. APPEAL AND ERROR (§ 1054) — HARMLESS ERROR — ADMISSIBILITY OF EVIDENCE.

The admission of evidence in an equity case is rarely reversible error; the case being heard de novo on appeal.

Brown, J., dissenting.

In Banc. Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge.

Action by Sallie E. Donaldson against Mace Donaldson and others. From a decree for defendants, plaintiff appeals. Affirmed.

T. A. Frank Jones and Joseph S. Rust. both of Kansas City, and D. C. Allen, of Liberty, for appellant. William J. Courtney and Sandusky & Sandusky, all of Liberty, for respondents.

LAMM, C. J.

Plaintiff, now the widow of, twice married to, and once divorced from, Robert H. Donaldson, sued in two counts, one in equity, one at law. Defendants are the children of said Robert by a former marriage. Full of years, to wit, three score and seven, he died testate in Clay county in September, 1906, but his will disposed of personalty, hence its terms, undisclosed, seem immaterial.

The object of the first count was to set aside two marriage contracts between her and Robert because of inadequacy of provision and fraud, and to avoid a certain conveyance of all his real estate made during the term of his first marriage to plaintiff by Robert to his two youngest sons, Mace and Walter, for fraud, as standing in the way of her marital rights as widow and for nondelivery. The second count was for the admeasurement and assignment of dower in the land so conveyed to Mace and Walter and to set off her homestead therein, proceeding on the theory that Robert died seised of the land. From a decree annulling the second marriage contract for inadequacy of provision for the wife, but refusing to set aside the conveyance and passing by the first marriage contract sub silentio, plaintiff appeals. Defendants abided the decree.

The first count is an elaborate bill in 41 paragraphs. Its sufficiency as a pleading is not questioned; hence its reproduction is useless. As plaintiff's own testimony and that of her witnesses tended to sustain some of its allegations, an outline of its charges may aid in understanding the controversy. Summarized, it charges that on August 31, 1899, Robert was the owner of a considerable estate; was 69 years of age and contemplated a marriage with plaintiff, then 59 years old; that he made a marriage contract with her (verbal we infer) whereby, in addition to plaintiff's proper support during her life, a promise was made of $3,000 in cash to be paid her at his death, and in that event to secure to her the use of the mansion house on his farm, with one-third of his real estate during her life, she to be taken care of by Mace, one of his sons; that in the October following, in pursuance of this agreement to marry, made on the terms stated, they were married; that, through the fraudulent contrivance of said Robert to defeat her marital rights (in which he was aided, abetted, and influenced by his two sons, Mace and Walter, and his nephew John T. Donaldson), she was induced to sign and acknowledge a fraudulent marriage contract grossly inadequate in provision, she being at the time without business experience and without counsel, and said Robert being at the time in a confidential and fiduciary relation to her by virtue of their marriage engagement and implicitly trusted by her. Said contract bound her to receive at his death $500 in lieu of all support, maintenance, and property rights as his widow, including dower and homestead; that she did not read over the contract, but was falsely assured it contained the provisions heretofore stated for $3,000, her widow's thirds, and residence in the family mansion, etc.; that the influence of said sons and nephew on Robert was accentuated and made easy by the fact that he was, and had long been, a hard drinker and his will power was thereby impaired and made subservient to the wills of said sons and nephew; that after the marriage, in furtherance of the scheme to defraud her out of her marital rights, she, when without counsel, was fraudulently persuaded to sign and acknowledge a deed in May, 1900, for a consideration of $1 whereby Robert (reserving to himself a life estate) conveyed to his said two sons Mace and Walter, all his real estate. It is averred that said deed was never delivered; that it was procured under circumstances of fraud and surprise (set forth at great length in the bill), and signed and acknowledged by her without knowing of its true contents, purport, or effect; that it was read over to her as if it contained the $3,000 provision, and that relating to her widow's thirds heretofore referred to. It is next alleged that after living with him from October, 1899, to August, 1900, she separated from him because of "revolting surroundings"; that in September, 1901, Robert sued her for a divorce; that she appeared to the action and filed an answer, and (though she had a meritorious defense), through the advice of her attorneys, she made no serious contest; that she was allowed $100 alimony pendente lite; that on December 12, 1901, a decree of divorce was rendered in his favor and against her; that on May 28, 1902, a remarriage between her and Robert was in contemplation; that at that time, in consideration of the second marriage, he promised her the same provision promised in consideration of the first; that, on the strength of that promise, they were married the second time; that at that time, under the same circumstances as in the first, she was defrauded into signing another marriage contract allowing her $100 in lieu of all support and property rights in case she became his widow, and thereafter she lived with Robert as his lawful wife until his death.

(Note. The testimony does not sustain this last allegation. Contra, having deserted her husband in the first marriage venture in eight months or so, she deserted him in the second two years before his death.)

The second count is of no significance until the merits on the first count are disposed of, for, if she is entitled to a full decree on the first count, her right to dower and homestead goes as of course on the second. If not, the second is in the air. The answer admits the two marriages, the intermediate divorce, the two written marriage contracts, and specifically denies the charges of fraud, collusion, undue influence, or the impairment of will power in Robert H. Donaldson at the times in hand. It stresses the divorce of Robert from plaintiff as a bar to the relief asked on the first marriage contract and deed, and affirmatively makes allegations contrary to the specifications of wrongdoing in the bill. The reply reiterates the charges in the petition and denies the affirmative matter in the answer.

It should be said there were four amended petitions filed. We are told that, to the first, three of the defendants, William, James L., and Emma, answered admitting its allegations; what those allegations were we are not told. After that answer, those three stood mute on the pleadings, making no answer to the fourth amended petition. The trial answer was a joint one by defendants Mace, Walter, Charles, and Jefferson. Defendant Thomas E. filed no answer at any time. So much for the pleadings.

The testimony took a wide range on both sides. As we read the record, at no time was plaintiff's competency as a witness...