Broyles v. Achor
| Decision Date | 05 February 1935 |
| Docket Number | No. 23164.,23164. |
| Citation | 78 S.W.2d 459 |
| Parties | BROYLES v. ACHOR et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.
Action by Lou Broyles against Harry Achor and another, executors under the will of W. W. Broyles, deceased, in charge of the administration of his estate. Judgment for defendants, and plaintiff appeals.
Affirmed.
Creech & Creech, of Troy, for appellant.
John H. Haley, of Clayton, for respondents.
BENNICK, Commissioner.
This is an action or proceeding in two counts upon what purport to be two negotiable promissory notes, executed by W. W. Broyles, late of Briscoe, in Lincoln county, Mo., in favor of Lou Briggs, who, in consideration, among other things, of the execution of such notes, became his wife, and now sues as Lou Broyles, his widow. The defendants are the executor and executrix of the estate of the deceased, the one being his son-in-law, and the other his daughter.
The action was begun as a demand against the estate of the deceased, filed in the probate court of Lincoln county on January 12, 1933. From the denial of the claim in the probate court, plaintiff appealed to the circuit court of Lincoln county, wherein, at its September, 1933, term, at a trial before the court alone with a jury waived, judgment was again rendered for the estate and against plaintiff as claimant. Her appeal to this court has followed in the usual course.
Plaintiff was the third wife of the deceased, and at the time of his death he left seven children surviving him, all born of his first marriage. She had also been married twice before, and her children were likewise of her first marriage.
The deceased had known plaintiff all of her life, both having always resided in the same general neighborhood, and during her marriage to Mr. Briggs at least he had been a caller at her home. Ultimately she and Briggs separated, and at the September, 1927, term of the circuit court of Lincoln county she obtained a divorce from him.
Thereafter, on October 12, 1927, Briggs sued the deceased in the circuit court of Lincoln county in an action for damages for the alienation of the affections of his wife, and on June 6, 1928, there was filed in the cause a stipulation between the parties for the dismissal thereof, reciting that on May 9, 1928, a settlement of the cause had been made out of court.
Mr. Broyles' courtship of plaintiff followed, culminating in his proposal of marriage, to which her response was, "What would be in it for me?" She testified that she had thought that he had already turned over the substantial portion of his property to his children, and so she was prompted to interrogate him regarding his financial status before she undertook to become his wife. According to plaintiff's further evidence, she and the deceased then entered into an agreement that she would marry him for a consideration of $3,500, whereupon the deceased himself prepared three separate instruments which, in their entirety, evidenced such agreement, the one being a marriage contract proper reciting a consideration of $2,000; and the other two being the notes in suit, one for $1,000, and the other for $500.
The idea of the deceased in executing the three separate instruments was to conceal the full amount of the consideration of the marriage from his children, his statement to plaintiff being that he was not averse to having his children know of the $2,000 marriage contract, but that he desired to keep from them the fact of the existence of the two notes which evidenced the greater and entire consideration.
We quote herewith the material portions of the marriage contract, and the two notes sued on in their entirety:
It will be observed that the $500 note was dated January 10, 1927, the $1,000 note simply 1928, and the marriage contract December 1, 1928. Plaintiff testified that the three instruments were all prepared by the deceased personally in his own handwriting; that she herself knew nothing of why he used the different dates; but that all three instruments were brought and delivered to her by the deceased at one and the same time, which was some two or three days prior to December 8, 1928, when the marriage took place.
So far as concerns the recital in the $1,000 note that it was for value received for labor rendered to the deceased in the Briggs trial, she testified that she had rendered no service to him in that trial and was expecting nothing from him in return, but that such language was included by the deceased as part and parcel of his scheme to conceal the real consideration for the note from his children.
Following the marriage, it appears that some difficulty developed between plaintiff and the deceased relative to what she should receive out of his estate upon his death, and particularly in regard to the two notes which he unsuccessfully attempted to have her turn over to him. Defendants attempted to show that it had at all times been the idea of the deceased that plaintiff was to receive only $2,000 out of his estate, or at least that that was their own understanding of the matter after they learned of the execution of the notes; and to support such defense they offered in evidence a statement apparently written by the deceased on August 1, 1930, and placed by him in his safe deposit box where it was found among his valuable papers after his death. No one had seen the deceased prepare such statement or ever knew of its existence until it was discovered among his other effects. Over the objection of plaintiff that it was but a self-serving document at best, the same was admitted in evidence as Defendants' Exhibit 1, and it reads as follows:
In the course of the controversy between plaintiff and the deceased, after she had positively refused to turn the two notes over to him, he asked her to take him to the home of his daughter, defendant Hazel Magee, so that the latter might in turn take him to one of the neighboring towns to consult an attorney about the situation. This was done, and while in consultation with his attorney, on September 22, 1930, he executed his will, devising and bequeathing to plaintiff, his wife, the sum of $2,000 to be paid to her out of his estate after his death, specifically providing that the same should be in full of her interest in his estate, she and he having entered into a marriage contract, and such bequest being made in accordance with the terms of such contract.
After the execution of the will, of which plaintiff had not meanwhile been advised, the deceased showed it to her, and again requested her to turn the notes over to him in return for his having made the specific provision for her in his will. However, she again refused to comply with his request, rather complaining of the fact that he had elected to take his daughter into his confidence in the matter of drawing the will instead of having advised and consulted with plaintiff as his wife.
Broyles died on January 21, 1932, and thereafter plaintiff renounced the will and elected to take under the law, and applied for and was allowed her statutory allowances out of the estate.
On May 2, 1932, she filed a claim in the probate court of Lincoln county, based only upon the marriage agreement proper, and saying nothing about the execution or existence of the two notes sued on in this case; and upon the appeal to the circuit court recovered a judgment against the estate for $2,109, representing the full amount of the claim with interest. The controversy in that case was over the questions of whether the agreement had been executed with the necessary formalities, and whether it was...
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