Mowser v. Mowser

• Decision Date: 31 October 1885
• Citation: 87 Mo. 437
• Parties: MOWSER v. MOWSER, Administrator, Appellant.
• Court: Missouri Supreme Court

87 Mo. 437

MOWSER

v.MOWSER, Administrator, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Bollinger Circuit Court.--HON. J. D FOX, Judge.

AFFIRMED.

Cahoon & Whybark for appellant.

(1) A parol ante-nuptial agreement not to claim any interest in each other's property, acted upon by the parties after marriage, has been held to be binding upon them. 2 Story's Equity (2 Ed.) sec. 987 a, p. 187, note 3; Southerland v. Southerland, 5 Bush (Ky.) 591; Naill v. Maurer, 25 Md. 532. If this be true, plaintiff is barred by the agreement from claiming any interest in the estate of her deceased husband. Logan v. Philips, 18 Mo. 23: Thompson on Homesteads, sec. 942; Klenke v. Koeltz, 75 Mo. 239. (2) Sections 105, 106, 107, etc., of article four, chapter one, of the Revised Statutes are in pari materia and, to be construed together, and from the provisions of section 105, it is clear that the legislature had in view the family of the deceased and not the widow alone, at least the widow as the remaining head of the family. The plaintiff at the death of her husband was neither a member of his family nor its remaining head. Dobson v. Butler, 17 Mo. 87; Thompson on Homesteads, secs. 75, 76, 935, 936, 937. (3) It is admitted by the defendant that the cases of Cummings v. Cummings, 51 Mo. 261; Hastings v. Meyer, 21 Mo. 519; Brown v. Brown, 68 Mo. 389; Whitehead v. Tapp, 69 Mo. 415; State ex rel. Steers v. Taylor, 72 Mo. 656; Griffin v. Canning, 54 Mo. 282, are strong and appear to be against the above positions, but it is believed that none of them presented the questions involved in this case and the plaintiff under the circumstances is not entitled to the benevolence of the statute.

Holladay & Smith for respondent.

(1) The wife received nothing in consideration of the so-called ante-nuptial agreement. Johnson v. Johnson, 23 Mo. 562. Such agreements are contrary to public policy. 3 Kent's Com. 76. But if it were within the spirit of the law, it is void because not in writing. R. S., secs. 3280, 3281, 3282; Logan v. Philips, 18 Mo. 22. The statute of frauds has a material bearing upon all such cases. Schouler's Dom. Rel. 266. To a petition by a widow to the probate court for an allowance out of her deceased husband's estate it is no defence that by marriage contract she had released all claim for her distributive share. Blackinton v. Blackinton, 110 Mass. 461; Hancock v. Hancock, 19 Pick. 167. (2) The property given to the widow is her absolute property and vests in her immediately upon the death of the husband. 21 Mo. 519; State ex rel. v. Taylor, 72 Mo. 650; 54 Mo. 282. Respondent stands here in the attitude of a doweress, having made no election in the premises to take a child's part. Griffith v. Canning, 54 Mo. 282; Cummings v. Cummings, 51 Mo. 261; Thompson on Homesteads, 745, last part sec. 943. (3) The wife was entitled to the allowance given her by section 107, Revised Statutes, although she had abandoned her husband, and was living separate and apart from him at the time of his death. She was still his lawful wife. Brown v. Brown, 68 Mo. 389; Whitehead v. Tapp, 69 Mo. 415.

HENRY, C. J.

This proceeding originated in the probate court of Bollinger county and was an application by the widow of Elisha Mowser, deceased, under section 107, Revised Statutes, which is as follows: “In addition to the above, the widow may take such personal property as she may choose, not to exceed the appraised value of four hundred dollars, for which she shall give a receipt.”

It was admitted that plaintiff, Ada, was the lawful wife of the deceased, of good reputation for chastity and in all respects a lady of fair name; that she made her application in due time and that the property is on hand, and the resistance to the allowance is based upon the following admitted facts: That she and deceased were married on the twelfth day of August, 1880, and continued to live together as husband and wife from that date until February 7, 1881, when Mrs. Mowser abandoned her husband without any cause, he having treated her with kindness and affection and provided her with a comfortable home and abundant support. That at her marriage she had several hundred dollars in money, and, prior to the marriage, it was agreed between her and Mowser that it was to remain her sole and separate estate; that during the coverture, he frequently borrowed money of her and repaid it, never controlling or claiming the right to control it; that when she left him he had living with him five minor children by a former wife, ranging from three to fifteen years of age. That she took with her all her separate estate, and the only reason she assigned for leaving him was that she had her own family to look after, consisting of three sons, one of age and married, and others almost grown and in good health.

A witness testified to a portion of the above facts, and defendant also offered to prove by this witness that Mr. and Mrs. Mowser, upon their intermarriage, agreed on the death of either the other should not claim any interest in the estate of the deceased. This, on objection of plaintiff, was excluded. The probate court refused her application and the plaintiff...