O'Brien v. Ash

• Citation: 69 S.W. 8,169 Mo. 283
• Court: United States State Supreme Court of Missouri
• Decision Date: 17 December 1901
• Parties: O'BRIEN v. ASH et al.<SMALL><SUP>1</SUP></SMALL>

69 S.W. 8

169 Mo. 283

O'BRIEN v. ASH et al.¹

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

DEED — PAROL EVIDENCE — STATUTE — TITLE — WIFE'S ESTATE — RIGHTS OF HUSBAND — ADVERSE POSSESSION — PARTITION.

1. Where a husband deeded property to a trustee in trust for the sole and separate use and benefit of the grantor's wife, "separate and apart from her said husband, and wholly free from his control and interference," after his death and her remarriage parol evidence of what he said is not admissible to show that the conveyance was intended to be free from any control or interest of her second husband.

2. Laws 1895, p. 169, entitled "An act to amend chapter 55 of the Revised Statutes 1889 entitled `Dower' by adding a new section thereto," providing that when a wife shall die without any child or other descendant her widower shall be entitled to one-half of her estate absolutely, subject to the payment of her debts, is not void under Const. art. 4, § 28, requiring that the subject of every bill shall be clearly expressed in its title.

3. Under Rev. St. 1899, § 2938, providing that when a wife shall die without any child or other descendant her widower shall be entitled to one-half her estate absolutely, subject to the payment of her debts, where such wife, by her will, left all her property to others than her husband, such legatees take but one half, and the widower takes the other half.

4. Defendants in partition claimed under a will which purported to give them testatrix's entire property, but which, read in connection with Rev. St. 1899, § 2938, only gave them an undivided half therein, testatrix's husband taking the other half as tenant in common. Held, that defendants, having taken under the will, could not be heard to claim any other or greater rights than that given them thereby, and therefore could not be in adverse possession of the whole estate as against the husband, so as to defeat his action for partition.

5. The fact that an estate was in process of administration, and that the probate court had ordered the executor to take possession of the real estate and rent the same, would not prevent an action for partition.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by Christopher O'Brien against Margaret Ash and others. From a judgment for plaintiff, defendants appeal. Affirmed.

John M. Dickson and John D. Johnson, for appellants. E. T. Farish and C. J. McAuley, for respondent.

ROBINSON, J.

This is a proceeding in equity for partition of certain real estate in the city of St. Louis claimed by defendants under the will of plaintiff's deceased wife. The petition alleges that the plaintiff was married to Mary Byrnes on the 22d day of April, 1896; that she died on the 9th day of January, 1898, testate, but without any child or other descendants in being capable of inheriting; that at the time of plaintiff's marriage with his wife she was the widow of Charles Byrnes, deceased, and that no issue was born of said marriage with said Charles Byrnes or the subsequent marriage with plaintiff; that by the will of plaintiff's wife, dated December 15, 1897, and duly probated on the 12th day of January, 1900, she undertook to devise all the real estate in controversy to defendants as tenants in common; that, as widower of his deceased wife, he is entitled to one half of said property absolutely, subject only to the payment of her debts, and that defendants, as devisees under the will, only acquired the other half thereof. It is further alleged that the property in controversy on the 17th day of January, 1890, was conveyed to the defendant Maggie Huette, in trust, however, for the sole and separate use of plaintiff's deceased wife, then the wife of said Charles Byrnes. After particularly describing the property and setting forth the names, rights, interests, and title of all parties interested therein, the petition concluded with a prayer "that the interest of the parties hereto may be adjudged and determined, and partition made and decreed according to their respective interests, and that, as it is manifest from the nature and character of the land and the interests of the parties, that partition in kind cannot be had without great prejudice to the owners, that the land be ordered sold, and that the proceeds be divided among the parties according to their respective interests," etc. The amended answer, after admitting that plaintiff was married to Mary Byrnes on the 22d day of April, 1896; that she died on the 9th of January, 1898, testate; that her will was dated December 15, 1897, and duly admitted to probate on the 12th day of January, 1898; that at the time of the marriage of plaintiff and Mary Byrnes the latter was the widow of Charles Byrnes, and that no issue was born of the marriage or of the subsequent marriage with plaintiff, — proceeds as follows: "And for further answer, and by way of new matter, defendants say: That at the time of the marriage of plaintiff, O'Brien, to Mary A. Byrnes, the latter was the widow of Charles Byrnes, and that no issue born of the marriage of said testate, Charles Byrnes, survived the said Byrnes; and that no issue was born of the subsequent marriage of said testate to the plaintiff O'Brien. That the said Charles Byrnes died on or about the 17th day of January, 1890. That on or about the 17th day of January, 1890, the said Byrnes, in immediate anticipation of death, and with the view and purpose of assuring to his wife the property described herein in plaintiff's petition free from the control or interference of any future husband, or from the right of curtesy, or any other right whatsoever which might otherwise accrue to any future husband, and to assure to her the complete usufruct of said property during her life, and the absolute power to dispose of it as she pleased during her life and at her death, did, on the date aforesaid, convey the premises described in plaintiff's petition to one Maggie Huette, in trust, however, to and for the sole and separate use, benefit, and behoof of the deceased, Mary A. O'Brien, then Byrnes, covenanting and agreeing with her that she could without let or molestation have, hold, use, occupy, and enjoy the aforesaid premises, with all the rents, issues, profits, and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her husband, and wholly free from his control and interference, debts, and liabilities, curtesy and all other interests whatsoever; and the trustee was required at all times, at the request of the testate, expressed in writing, signed by her or by her authority, to bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose or otherwise dispose of said premises, or any part thereof, to do which full power was given by said deed; and said trustee was required to pay over the rents, issues, profits, and proceeds thereof to her, the said Mary A. Byrnes, afterwards O'Brien; and at her death the said trustee was required to convey or dispose of the said premises, or such part thereof as might then be held by her, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times as she should, by her last will and testament, or any other writing signed by her, or by her authority, direct and appoint; and in default of such appointment the said trustee was by said deed required to convey said premises to the lawful heirs of said deceased, Mary A. Byrnes, afterwards O'Brien. Defendants say that by virtue of the rights and powers conferred upon her by said deed the testatrix, by her last will and testament aforesaid, appointed by the devise in her last will the defendants as the persons to whom said trustee should convey the legal title to said lands at her death, and that they are now entitled to receive from said trustee a deed to the legal title to said premises so held by said trustee for the purposes of said trust; and defendants say that said trustee does in fact now stand seised to the use of these defendants since the death of said Mary A. O'Brien. Defendants say that by virtue of said deed the title to the property described in plaintiff's petition vested at once in said trustee for the exclusive use and benefit as aforesaid of the testatrix, free from any right of curtesy or any other right whatsoever of any husband whatsoever, and said title could not be affected by any statute afterwards passed by the legislature of this state in derogation of the title thus created. And these defendants say that if it be true, as plaintiff avers, that upon the death of Charles Byrnes the legal and equitable estate were merged, and the fee-simple title became thereby fixed in the widow of said Byrnes, so that it could not revive upon any subsequent marriage, * * * these defendants say that such title vesting as claimed by said plaintiff was not and could not be affected by any statute afterwards passed by the legislature of this state in derogation of the title thus created. That Christopher O'Brien, the plaintiff, has not now, and never at any time had, any interest of any kind or character in said premises in virtue of his marriage to the said Mary A. Byrnes, nor by gift, grant, devise, or by operation of any law of this state. And defendants further state that the plaintiff claims title to an undivided one-half of said premises as tenant in common with defendants under and by virtue of the act of the legislature of the state of Missouri entitled `An act to amend chapter 55 of the Revised Statutes of the State of Missouri of 1889, entitled "Dower," by adding a new section thereto to be known as section 4518a,' approved March 2, 1895 (Laws 1895, p. 169); and defendants aver that said act, in so far as it seeks to affect any estate of whatever kind vested in any married woman at the time of or prior to the passage of the same is null, void, and of no effect,...