Ashbaugh v. Ashbaugh

• Decision Date: 16 February 1918
• Docket Number: No. 18925.,18925.
• Parties: ASHBAUGH v. ASHBAUGH et al.
• Court: Missouri Supreme Court

201 S.W. 72

273 Mo. 353

ASHBAUGH v. ASHBAUGH et al.

No. 18925.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Circuit Court, Lincoln County; E. B. Woolfolk, Judge.

Action by Elizabeth Ashbaugh against Dean Ashbaugh and others. From a judgment for plaintiff, defendants appeal. Judgment affirmed.

R. H. Norton and Avery, Dudley & Killam, all of Troy, for appellants. Frank J. Duvall, of Clarksville, and Hostetter & Haley, of Bowling Green, for respondent.

WHITE, C.

The action was brought under section 2535, R. S. 1909, to determine title to 42 acres of land in Lincoln county. The plaintiff is the widow of Henry II. Ashbaugh, deceased. The defendant Dean Ashbaugh is the son by a former marriage of Henry H. Ashbaugh. The plaintiff claims title to the tract as an estate by entireties under a conveyance made to her and Henry H. Ashbaugh, as husband and wife, during said Ashbaugh's lifetime. The conveyance was made in 1909, and Henry Ashbaugh died on April 11, 1914. The defendant son claims under the will of Henry H. Ashbaugh, which purported to give him a half interest in the 42-acre tract mentioned, and a half interest to the plaintiff, widow.

During the life of Henry H. Ashbaugh he and his wife joined in a deed of trust conveying this land to H. H. Robinson, trustee for Mary J. Taylor, cestui que trust, to secure a debt, and by reason of their interest in the property thus acquired those two were made parties defendant. Paul Gibson, executor of the last will of Henry H. Ashbaugh, was made party defendant, and in his answer set up that the personal estate of Henry H. Ashbaugh was insufficient to pay the debts which had been allowed against the estate, and that the land mentioned was liable for the payment of such debts.

The conveyance by which Henry H. Ashbaugh and his wife acquired title to the land begins as follows:

"General Warranty Deed.

"This indenture, made on the 11th day of September, A. D. one thousand nine hundred and nine, by and between John A. Crank and Laura Crank, his wife, of Lincoln county, Missouri, parties of the first part, and H. H. Ashbaugh and Elizabeth Ashbaugh, his wife, each an undivided one-half interest, of the county of Pike, in the state of Missouri, parties of the second part, witnesseth: That the said parties of the first part, in consideration of the sum of one dollar and other valuable consideration to them paid by the said parties of the second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain and sell, convey and confirm, unto the said parties of the second part, their heirs and assigns the following described lots, tracts or parcels of land, lying, being and situate in the county of Lincoln and state of Missouri, to wit."

Then follows a description of the land, and habendum and warranty clauses to parties of the second part, in the usual form.

The judgment was for the plaintiff, and defendants appealed.

I. An estate by the entireties is created by a conveyance to the husband and wife by a deed in the usual form. It is one estate vested in two individuals who are by a fiction of law treated as one person, each being vested with entire estate. Neither can dispose of it or any part of it without the concurrence of the other, and in case of the death of either the other retains the estate. It differs from a joint tenancy where the survivor succeeds to the whole estate by right of the survivorship; in an estate by entireties the whole estate continues in the survivor. The estate remains the same as it was in the first place, except that there is only one tenant of the whole estate whereas before the death there were two.

In the recent case of Stifel's Union Brewing Co. v. Saxy, No. 18792, 201 S. W. 67, decided by this court at the present term and not yet reported, the authorities in this and other states were reviewed at length, and the doctrine as it always has existed in this state was restated with completeness and precision. It was held in that case, upon the point in issue, that the interest of the husband in lands held by himself and his wife by the entireties could not be subjected to the payment of his debts. This would seem to dispose of the claim of the executor in this case, and likewise the claim of the attempted devisee, Dean Ashbaugh, provided the deed by which the title here was conveyed to the Ashbaughs created an estate by the entireties in Henry Ashbaugh and the plaintiff.

II. It is argued by the appellants that the married women's acts (sections 8304, 8307-8309) have changed the common-law rule which recognized the doctrine of estate by the entireties; it is not claimed that any statute in express terms destroys the estate, but that the common-law rule in that respect "is inconsistent with the legislative policy of the state," as indicated by the several statutes emancipating married women from the control and domination of their husbands in relation to their property. The Saxy Case, just cited, settles that proposition. It is there held that the purpose and effect of the statutes relating to married women was not to destroy the quality of any estate which the wife might have, but to protect her property by removing it...