Hoffmann v. Hoffmann's Executor

• Citation: 29 S.W. 603,126 Mo. 486
• Parties: Hoffmann v. Hoffmann's Executor, Appellant
• Decision Date: 05 February 1895
• Court: United States State Supreme Court of Missouri

29 S.W. 603

126 Mo. 486

Hoffmann v. Hoffmann's Executor, Appellant

Supreme Court of Missouri, First Division

February 5, 1895

Appeal from St. Louis City Circuit Court.

Affirmed.

""C. P. & J. D. Johnson and ""Jos. S. Laurie for appellant.

(1) The court had no jurisdiction. ""First. A married woman can only sue her husband in equity, and the probate court has no equity jurisdiction. Bishop's Married Women, sec. 610; Story's Equity Jurisprudence, secs. 1367, 1372, 1374; ""Ilgenfritz v. Ilgenfritz, 49 Mo.App. 127; ""Church v. McElhinney, 61 Mo. 540; ""Church v. Robberson, 71 Mo. 326; ""Scudder v. Ames, 89 Mo. 496. ""Second. This is no case of a demand against an estate for the debt of a decedent. ""Butler v. Lawson, 72 Mo. 227; Perry on Trusts, sec. 666; ""Walker v. Parker, 5 Wall 744; ""Gordon v. Eans, 97 Mo. 587; ""Phillips v. Overfield, 100 Mo. 466. (2) The demurrer to the evidence should have been sustained. Bliss on Code Pleading, sec. 202; Gould on Pleading [5 Ed.], p. 165 sec. 20; Perry on Trusts, sec. 890. (3) The court erred in overruling the defense that plaintiff had split up her cause of action; and that there was now pending in the St. Louis circuit court another action between the same parties for the same cause. ""Ruggles v. Horrine, 34 Mo.App. 616; ""Kavanaugh v. Shaughnessy, 41 Mo.App. 657; ""Co. v. Traube, 59 Mo. 355; ""Pfeiffer v. Suss, 73 Mo. 345; Bliss on Code Pleading, sec. 118; 1 Am. and Eng. Encyclopedia of Law, p. 184""c. (4) The court erred in refusing to allow defendant to examine witness Bridgeford, as to statements made by O'Connor to said witness upon the occasion of his last illness, in the presence of his wife, the plaintiff herein, as to the pecuniary condition of himself and wife at that time. ""Benne v. Benne, 56 Mo.App. 504. (5) The court erred in its rulings as to the instructions. (6) The verdict is unwarranted by the evidence and was the result of prejudice. ""Carney v. Carney, 95 Mo. 35; ""Benne v. Benne, 56 Mo.App. 504; ""Jennings v. Davis, 31 Conn. 138; ""Shuttleworth v. Winter, 55 N.Y. 624; Rice on Evidence, sec. 990; ""Spohn v. Railroad, 87 Mo. 74. (7) The remarks of plaintiff's counsel, in the course of his argument to the jury, were improper and prejudicial, and the objections of the defendant at the time were erroneously overruled. ""State v. Lee, 64 Mo. 161; ""McDonald v. Cash, 56 Mo.App. 66; Thompson on Trials, sec. 960; ""Strauss v. Railroad, 86 Mo 422.

""H. D. Laughlin and ""E. McGinnis for respondent.

(1) Since the amendment of 1883 to section 6869, Revised Statutes, a court of law has jurisdiction of a suit by the wife's administrator against her husband for her statutory, separate personal estate created by that act. ""Pitkin v. Mott, 56 Mo.App. 401. Such an estate is a legal estate, and the wife's rights to it can now be enforced by suits at law, instead of in equity as formerly required. ""Bedsworth v. Bowman, 104 Mo. 44; ""Lavelle v. Stifel, 37 Mo.App. 531. Under that statute she is, as to the statutory separate estate, thereby created a ""feme sole, with full powers as such. ""Brown v. Bown, 90 Mo. 184. Even as to her separate estate created prior to the amendment of 1883, the probate court has jurisdiction of her claim to it against her husband's administrator, where the husband held it as her agent and kept an account, the items chargeable against it having to be considered to ascertain the balance coming to her. ""Todd v. Terry, 26 Mo.App. 598. Also where administrator of husband withheld from the widow rents of mansion house tract accruing prior to assignment of dower, and where an accounting was necessary, the probate court had jurisdiction. ""Gentry v. Gentry, 122 Mo. 202. (2) It is only where the cause of action is purely equitable and equitable relief is required, that the probate court is without jurisdiction. In all other cases of demand against an estate, whether legal or equitable, the probate court has jurisdiction. ""Hammons v. Renfrow, 84 Mo. 332; ""Coal Co. v. Slevin's Estate, 56 Mo.App. 107. (3) Even in cases where the defense of another action pending for same cause is proper, such defense can be waived by the acts of defendant, and his right to use it be lost. ""Bank v. Noonan, 88 Mo. 372; ""Kavanaugh v. Shaughnessy, 41 Mo.App. 657. (4) Wife's silence in presence of her husband, who is making a statement that may affect her, is not to be taken as an admission by her, unless he could be a witness against her, or an estoppel could be pleaded against her. ""Bank v. Nichols, 43 Mo.App. 385. An instruction that is a comment upon a particular part of the evidence, though it is a correct comment, is misleading and gives improper importance to a part of the evidence and should not be given. ""Jones v. Jones, 57 Mo. 138; ""Chouquette v. Barada, 28 Mo. 491.

OPINION

Macfarlane, J.

The action was commenced in the probate court on the following demand:

"The petition of Isabella Hoffmann respectfully shows to the court that heretofore, to wit, on the nineteenth day of March, 1892, John Hoffmann departed this life, and that the St. Louis Trust Company is executor of his estate.

"Your petitioner further shows that she became the wife of said John Hoffmann in the month of March, A. D. 1886; that, just prior to the marriage, she and the said John Hoffmann entered into an antenuptial contract, dated the eighth day of March, 1886, and is on record in the office of the recorder of deeds for St. Louis county in book 28, page 456; that in and by said contract, for the consideration therein recited, the said John Hoffmann did covenant, promise and agree to and with your petitioner that he would, the said marriage being solemnized, according to his best judgment and skill, manage and preserve the estate of your petitioner, including that which she then had, as well as that which she might receive thereafter, otherwise than through the said contract, during the marriage, and at the expiration thereof, the said John Hoffmann, would secure to her if she survived him, or to her heirs if he should survive her, all her estate which might thereafter come into his hands.

"Your petitioner further states and shows to the court that the said John Hoffmann received of and from her and for her account and from sources other than the property referred to in said contract, sums of money amounting in the aggregate to the sum of thirteen thousand (13,000) dollars which he failed to secure to her prior to his death and for which the estate is now indebted to her and liable.

"Wherefore she prays judgment against the estate for the sum of thirteen thousand (13,000) dollars."

The demand was allowed by the probate court, and the defendant appealed. In the circuit court the cause was tried de novo and resulted in a judgment for plaintiff and defendant appealed to this court.

On the trial it was shown that on or about the eighth day of March, 1886, plaintiff, then the widow of Daniel O'Connor, and the defendant's testator were married, having previously entered into a marriage contract. By this contract plaintiff agreed to accept the provisions made for her in lieu of dower. The provision made was a conveyance to her of a life estate in certain lots in the city of St. Louis. The contract contained this further undertaking on the part of deceased:

"And the said John Hoffmann, in consideration of the premises, and of five dollars to him in hand paid by said Isabella O'Connor, does by these presents covenant, promise and agree to and with the said Isabella O'Connor, that he will, said marriage being solemnized, according to his best judgment and skill, manage and preserve her estate, which she now has, or which she may receive hereafter by descent, gift, devise or the statute of distribution from her relatives, or which she may in any way acquire, and take and receive to his own use, only the income thereof during marriage with said Isabella O'Connor, and at the expiration thereof, he, the said John Hoffmann, will secure to her, if she survive him, or to her heirs if he shall survive her, all her estate, except the interest and income thereof during said marriage, and such parts as shall have been consumed or destroyed, and that the said Isabella O'Connor shall have the power to give, devise or bequeath her said estate or any part thereof by last will and testament, as if she were unmarried, and shall also have power and authority, in her own individual name, to receipt for, and give acquittance for, the rent, income and profits of the premises herein conveyed to her for the period of her natural life."

John Hoffmann died testate in March, 1892, and defendant is his executor. By his will he devised a large part of his estate to charitable institutions.

The evidence tended to prove that during the marriage deceased received of his wife sums of money aggregating from $ 12,000 to $ 14,000. This evidence consisted almost exclusively of admissions and declarations of deceased to third persons, that he had borrowed the money of his wife.

At the conclusion of the evidence the court gave the jury these instructions with others which are not challenged:

"1. If you find and believe from the evidence that John Hoffmann, deceased, received from the claimant, Isabella Hoffmann, or for her account, any moneys belonging to her, and that he failed to repay or return the same to her before his death, then your verdict should be in favor of the plaintiff. * * *"

"3. Unless you are satisfied from the evidence in this case that the deceased, John Hoffmann, received from the claimant, Isabella Hoffmann, or for her account, moneys belonging to her and failed to repay or return the same to her before his death, your verdict must be in favor of the defendant."

The court refused, with...