Ashbaugh v. Ashbaugh
| Decision Date | 16 February 1918 |
| Parties | ELIZABETH ASHBAUGH v. DEAN ASHBAUGH, H. H. ROBINSON, MARY TAYLOR, and PAUL GIBSON, Executor of Last Will of HENRY H. ASHBAUGH, Appellants |
| Court | Missouri Supreme Court |
Appeal from Lincoln Circuit Court. -- Hon. E. B. Woolfolk, Judge.
Affirmed.
R. H Norton and Avery, Dudley & Killam for appellants.
(1) The doctrine of estates in entireties is repugnant to and inconsistent with the policy of our Married Women's Acts and should not be applied to conveyances made since their enactment. R. S. 1909, secs. 8304, 8307 and 8309; Russell v. Russell, 122 Mo. 235; Bains v. Bullock, 129 Mo. 117; State ex rel. v. Maguni, 187 Mo. 244; Williams v. Railroad, 188 Mo. 146; State ex rel v. Perkins, 139 Mo. 177; Taylor v. Pullen, 152 Mo. 434; Abramsky v. Abramsky, 261 Mo. 117; Boutell v. Shellaberger, 264 Mo. 70. (2) The Ashbaugh deed per force of its own terms created a tenancy in common between Henry H. and Elizabeth Ashbaugh, and the defendant John D. Ashbaugh took one-half of the property under the Ashbaugh will. Linville v. Greer, 165 Mo 397; Bradshaw v. Bradbury, 64 Mo. 334; Bruenman v. Carroll, 52 Mo. 315; Chew v. Kellar, 171 Mo. 223; Waldermeyer v. Loebig, 222 Mo. 551; Williamson v. Brown, 195 Mo. 337.
Frank J. Duvall and Hostetter & Haley for respondent.
As to the interpretation to be put upon the deed because of the existence of the clause in the premises reading "each an undivided one-half interest," this court must overrule the case of Wilson v. Frost, 186 Mo. 311, before it can hold that such clause made the grantees take as tenants in common instead of taking as tenants by the entirety. Correctly speaking there is no survivorship in estates by the entirety. The surviving person does not acquire a new title but holds only the same title which he or she took in the beginning, freed of the contingency. The statute, in recognition of this injustice, has abolished joint tenancies, with their incident of survivorship, but it has not touched estates by entirety; on the contrary, out of over-caution estates to husband and wife are excepted by that very statute. Sec. 2878, R. S. 1909; Sec. 8844, R. S. 1889. The statute abolishing joint tenancies did not apply to estates by entirety. Gibson v. Zimmerman, 12 Mo. 385; Hall v. Stephens, 65 Mo. 670. The true nature of estates by the entirety and the distinction between them and joint tenancies and how affected by the Married Women's Statutes, is pointed out in Frost v. Frost, 200 Mo. 474; Bains v. Bullock, 129 Mo. 119; Whittaker v. Lewis, 264 Mo. 208; Moss v. Ardrey, 200 Mo. 595; Russell v. Russell, 122 Mo. 237.
The action was brought under Section 2535, Revised Statutes 1909, to determine title to forty-two acres of land in Lincoln County. The plaintiff is the widow of Henry H. 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 entirety 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 forty-two-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:
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 entirety 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 the 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, ante page 159, decided by this court at the present term, 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 entirety 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, 8307-8-9) have changed the common law rule which recognized the doctrine of estate by the entirety; 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 from the control of her husband and giving it into her management; that such acts did not destroy the unity of the husband and wife, which treats them as equals in respect to estates of this character, but removed the jus mariti, "without affecting in any other way the estates granted to the wife alone or to the husband and wife as...
To continue reading
Request your trial