Broyles v. Magee

• Citation: 71 S.W.2d 149
• Decision Date: 08 May 1934
• Docket Number: No. 22856.,22856.
• Parties: BROYLES v. MAGEE et al.
• Court: Court of Appeal of Missouri (US)

71 S.W.2d 149

BROYLES v. MAGEE et al.

No. 22856.

St. Louis Court of Appeals. Missouri.

May 8, 1934.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be reported in State Reports."

Action by Lou Broyles against Hazel Magee and another, executors of the will of W. W. Broyles, deceased. Judgment for plaintiff, and defendants appeal.

Affirmed.

J. D. Hostetter, of Bowling Green, for appellants.

Creech & Creech, of Troy, for respondent.

McCULLEN, Judge.

This suit had its origin in the probate court of Lincoln county, Mo., where, on May 2, 1932, respondent filed her claim against the estate of W. W. Broyles, deceased. The claim was based upon a written agreement entered into by respondent and the said deceased on December 1, 1928.

The probate court, after a hearing, disallowed the claim, whereupon respondent appealed to the circuit court of Lincoln county. On January 5, 1933, the cause was tried de novo before the circuit court, a jury being waived, and on March 29, 1933, the circuit court rendered a finding and judgment in favor of respondent in the sum of $2,109, which represented the full amount of the claim, with interest added thereto, and ordered the judgment to be certified to the probate court for allowance against the estate. Appellants, executors of the will of the said deceased, bring the case to this court by appeal.

Respondent is the widow of the said W. W. Broyles, and for her cause of action alleged that a written agreement was made by and between herself and W. W. Broyles on December 1, 1928, and by said agreement the said W. W. Broyles promised respondent that, in consideration of her marriage to him, he would pay her the sum of $2,000 in cash, through his executors, three months after his death; that relying upon said agreement she married him on December 9, 1928, and lived with him as his wife until the time of his death, and faithfully performed all the conditions of said agreement that were to be performed by her. Respondent further alleged that the said W. W. Broyles died on January 21, 1932, and that the whole of said sum of $2,000 is now due and unpaid.

At the trial the written agreement was introduced in evidence by respondent. It appears that the deceased himself drew up the agreement, and it is admitted by appellants that both respondent and the deceased signed it. It is as follows:

                                 "Briscoe, Mo. 12, 1, 1928
                

"I, W. W. Broyles and Lou Briggs, both being of sound mind do hereby enter into this agreement. I, W. W. Broyles, the party of the first part, and Lou Briggs, the party of the second part, now the party of the second part agrees to unite in marriage with the party of the first part, and to forsake all others, and to be a true, loving faithful wife and companion and to protect him in sickness and health until death, and she agrees to accept from his estate $2,000 two thousand dollars to be paid to her in cash by his executors three months after his death, and she agrees to move on his place and to keep fouls, hogs and cow, and the income is to be used to keep up the table and other expenses and at his death the fouls, hogs and cattle is to be sold and the proceeds divided equally between her and his estate.

"And she agrees to give possession of place that she lives on in six months after his death provided it is not her own.

"Now the party of the first part agrees to unite in marriage with the party of the second part and to forsake all others and to be a true loving faithful husband and companion and to protect her in sickness and health until death.

"And he agrees to allow her out of his estate $2,000 two thousand dollars to be paid to her in cash three months after his death, paid by executors and he agrees to provide a home for her and provide for the home out side of what the home makes, and he agrees after his death the fouls and hogs and cattle shall be sold and the proceeds divided equally between the party of the second part and his heirs.

                                          "W. W. Broyles
                                          "Lou Briggs."
                

The testimony showed that W. W. Broyles and respondent were married on December 9, 1928, eight days after they entered into the above agreement. At the time of the marriage Mr. Broyles was seventy-five years old. He died on January 21, 1932, leaving surviving him his widow, respondent herein, six daughters and one son. He had been married twice before his marriage to respondent. There had been no children by his second marriage, nor by his marriage to respondent. The seven children were all children of the first marriage. No child died prior to Mr. Broyles' death.

Joe Broyles, son of the deceased, testified that he was in his father's home frequently during the four years of his marriage to respondent, that respondent and his father lived together as husband and wife, and that respondent was the kind of a wife to his father "that did all that could be asked of her as his wife."

The last will and testament of the deceased was introduced in evidence by appellants. It was executed on September 22, 1930, and was duly probated on January 26, 1932, in the probate court of Lincoln county. In the will the deceased made provisions for his children as follows: To Lena Mathews, daughter, $1,500; to Ethel Wells, daughter, $1,500; to Maude Broyles, daughter, $1,800; to Clema Achor, daughter, $1,500; to Dee Schneider, daughter, $1,500, in addition to a tract of land which he had theretofore deeded to her; to Hazel Magee, daughter, $1,500, in addition to land which he had theretofore deeded to her; to J. T. Broyles, his son, the deceased devised land which he had theretofore deeded to him.

The second clause of the will provided as follows:

"Second: I will and bequeath to my present wife, Lou Broyles, the following:

"The sum of Two Thousand ($2,000.00) Dollars, the same to be paid to her out of my estate after my death; also all the household and kitchen furniture on hands at the time of my death; also all the domestic fowls on hand at the time of my death; also a Jersey cow now on hand, five years old and being called `Jersey.' These bequests I desire shall be in full of her interest in my estate, she and I having entered into a marriage contract prior to our marriage and this bequest is made in accordance with the terms of such marriage contract."

The eleventh clause of the will is as follows: "Eleventh: In the event my estate is not sufficient in amount to pay the Two Thousand Dollars which I have willed to my wife and also to pay the various sums of money which I have heretofore willed to my various children, then it is my will that the amounts of money willed to my children shall be diminished in proportion, but I do not desire that the Two Thousand Dollars willed to my wife shall be diminished because of any deficiency in my estate."

The fourteenth clause of the will contained a provision that, in the event the testator's estate should be more than sufficient to pay all the bequests and thereby leave a surplus, such surplus should be divided equally amongst his six daughters, who were specifically named in that clause.

There was evidence showing that a number of years before his marriage to respondent the deceased had made gifts of various sums of money to certain of his children, and during the year 1928, but prior to making the written agreement involved herein, he deeded to certain of his children separate parcels of land, and gave to his only son the sum of $500.

According to the inventory and appraisement, the estate of the deceased, including real estate and personal property, amounted to the sum of $12,970.84. The evidence showed that respondent filed in the probate court her written declaration as the widow of the deceased, renouncing the will and electing to take from the estate such part thereof as she is entitled to under the law. Respondent made application as the widow of the deceased for an allowance of a year's provisions, and was allowed the sum of $400 for such provisions. She also made application for, and was allowed, as widow, the sum of $400 as her absolute property. It was admitted that respondent received from the executors the sum of $800 in cash in payment of the two above-mentioned allowances, but she disclaimed receiving it as part payment of the $2,000 provided for in the antenuptial agreement upon which her claim in this suit is based.

Appellants assign as error the action of the court in overruling their peremptory instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's testimony, and at the close of all the testimony.

In support of this contention appellants argue that the alleged marriage agreement was invalid and not good as...