King v. King

• Decision Date: 16 July 1904
• Citation: 184 Mo. 99,82 S.W. 101
• Parties: KING et al. v. KING et al.
• Court: Missouri Supreme Court

82 S.W. 101

184 Mo. 99

KING et al. v. KING et al.

Supreme Court of Missouri, Division No. 2.

July 16, 1904.

HUSBAND AND WIFE — ANTENUPTIAL AGREEMENT — EQUITABLE JOINTURE — RELEASE OF DOWER — STATUTES — CONSTRUCTION.

1. Under Rev. St. 1899, § 2950, providing that if any woman, prior to and in contemplation of marriage, shall, in agreement or marriage contract with her intended husband, receive any estate, to take effect after the death of her husband, by way of jointure as a provision for her support during life, and expressed to be in full discharge of all her claim of dower, such estate shall be valid, and a bar to dower in the estate of her husband, a contract so made, by which the woman purported to release her claim to her intended husband's lands and tenements, but in which it was nowhere declared to be in satisfaction of her dower, and in which no provision was made for her support after her husband's death, is ineffectual to bar her dower.

2. Rev. St. 1879, § 3296, provided that personal property belonging to a woman at her marriage should be her separate property during coverture. Section 3295 provided that no conveyance during coverture by a husband of the products of his wife's estate should be valid unless made by deed executed jointly by the husband and wife. Held, that a contract between a woman and her intended husband, made in contemplation of marriage, while these statutes were in force, by which they purported to release the claim of each in the property of the other, but in which no provision was made for her support after the death of the husband out of his property, and nowhere declared the contract to be in satisfaction of her dower, does not constitute an equitable jointure, though she was the owner of dower interests in real estate of a former husband at the time the contract was made.

Appeal from Circuit Court, Cooper County; Jas. E. Hazell, Judge.

Suit by John King and others against James King, Susan King, and others for partition. From a judgment denying Susan King dower, she appeals. Reversed.

Barnett & Barnett, for appellant. W. M. Williams, for respondents.

GANTT, P. J.

This is a partition suit tried in the circuit court of Cooper county, in which the farm of Wm. W. King, deceased, consisting of about 230 acres, is sought to be partitioned among his heirs. The appellant, Susan King, is the widow of said Wm. W. King, and in the judgment and decree in this case the circuit court adjudged and decreed that the said widow was not entitled to dower in said real estate, but by its decree the court expressly excluded her from sharing in said estate. There was an antenuptial agreement entered into October 21, 1885, between said Wm. W. King and the said Susan King, then Susan Atkinson which agreement is as follows:

"Know all men by these presents that we, W. W. King and Susan D. Atkinson, both of the County of Copper, in the State of Missouri, intending and mutually promising to be and become presently joined together in the bonds of matrimony, do hereby in consideration of such intention and promise and in consideration of such marriage about to be contracted as aforesaid, mutually covenant, promise and agree one to and with the other, that neither of said contracting parties shall by reason of such marriage have or claim any right, title or interest in any real estate of the other either now owned or hereafter to be acquired, by this contract, it being expressly understod and agreed that all such claim, title or interest of each of said contracting parties to which under the law he or she would be entitled in the other's lands and tenements is and shall be forever barred, so that upon the death of either, the title to his or her real estate shall by force of this covenant pass to and vest in his or her heirs or assigns free from any such claim, right, title or interest of the other.

"In testimony whereof, we, the said parties have hereunto set our hands and affixed our seals, at Boonville, Mo., this 21st day of October, 1885.

                             "W. W. King.         [Seal.]
                             "Susan D. Atkinson.  [Seal.]
                "Attest
                    "W. G. Pendleton
                    "O. P. Davis."
                

This agreement was read in evidence by plaintiff over the objections of defendant Susan King, she objecting to its introduction because said instrument was insufficient to bar dower. The evidence shows that this so-called marriage contract was entered into between these parties a short time before their marriage; that at that time the said Wm. King was the father of ten children by a former marriage, and this appellant, (then Susan Atkinson) was the widow of Andrew Atkinson, deceased, and the mother of seven children; that at the time of his death Mr. Atkinson owned a homestead of 200 acres, and his widow at the time of making the contract in question owned no real estate except her dower or homestead rights in said 200 acres. At the time of his death Andrew Atkinson had a good title to 160 acres of said 200 acres, but as to 40 acres there was a defect in the title, and after his death a quitclaim deed was made to Mrs. Atkinson to perfect her title. The court having found and adjudged that appellant herein, Susan King, as widow of Wm. King, was, by reason of said antenuptial agreement, not entitled to dower in her deceased husband's real estate, she has prosecuted her appeal to this court. The only question in this case is whether the agreement read in evidence is effectual as a bar to appellant's claim of dower.

1. Prima facie, Mrs. King is entitled to dower in the lands of which her husband was seised in fee during her marriage to him, and in which she had not relinquished her dower. The defense is that by the antenuptial agreement of October 21, 1885, a jointure was provided for her, which, under our laws, bars her dower. Section 2950, Rev. St. 1899, provides that: "If any woman, prior to and in contemplation of marriage, shall, in agreement or marriage contract with her intended husband or other...