Carr v. Lackland

• Decision Date: 29 November 1892
• Citation: 20 S.W. 624,112 Mo. 442
• Parties: CARR et al. v. LACKLAND et al.
• Court: Missouri Supreme Court

20 S.W. 624

112 Mo. 442

CARR et al. v. LACKLAND et al.

Supreme Court of Missouri, Division No. 2.

November 29, 1892.

HUSBAND AND WIFE — MARRIAGE SETTLEMENT — CONSTRUCTION.

1. An antenuptial contract provided that in lieu of dower the wife should receive from the husband at the time of marriage "securities amounting in the aggregate to $50,250," naming certain securities. These securities were given to the wife as agreed, but subsequently turned out to be worth much less than their face value of $50,250. Held that, as there was no fraud or misrepresentation, the wife could not recover from her husband's estate the difference between their real and nominal value.

2. Where such contract provides that the husband shall have no title or interest in or to any of the property of the wife, but it shall remain subject to such uses as she shall by will appoint, "the usufruct, rents, and income during coverture * * * only to be subject to the control" of the husband, the wife's separate estate is limited to the corpus of her property, and the husband is entitled to the income.

Appeal from St. Louis circuit court; DANIEL D. FISHER, Judge.

Action by Eugenia L. Allen against Rufus J. Lackland and others, executors of Girard B. Allen, deceased. Pending the suit, plaintiff, Eugenia L. Allen, died, and her executors, Paschall Carr and Walter B. Carr, then prosecuted the suit. From a judgment for defendants, plaintiffs appeal. Affirmed.

Martin, Laughlin & Kern and Hitchcock, Madill & Finkelnburg, for appellants. Boyle & Adams, for respondents.

MACFARLANE, J.

This is a suit in equity, growing out of a marriage contract between Girard B. Allen and Eugenia L. Carr, executed prior to their marriage, which occurred July 12, 1871. At the time of making the contract Mr. Allen was a widower, 54 years of age, with four children, and Mrs. Carr was a widow, 37 years old, having four children also. Each was possessed of an estate, — that of the former valued at $250,000, and that of the latter at $50,000. In contemplation of marriage, they entered into a contract dated the 10th day of July, 1871, in one paragraph of which it was agreed that Mr. Allen would transfer and deliver to Mrs. Carr securities amounting to $50,250, describing, in connection therewith, two certificates or receipts, — one for $45,000 and the other for $5,250. In another paragraph it was provided that the property of Mrs. Carr should remain her separate property, subject to her control and disposal, to which a limitation of the use of the usufruct, rents, and profits by the husband was added. The dispute is over these two paragraphs, and they will be set out in full in considering their legal effect and meaning. Mrs. Carr, party of the second part, in consideration of said marriage, and of the agreement and covenants of the said Allen, agreed to accept the foregoing settlement in lieu of dower or other claim on the estate of the said Allen. The certificates or receipts specified and described in the contract, together with the contract itself, were delivered on the day of the marriage to one Henry G. Paschall, a brother of Mrs. Carr. After the marriage Mr. Allen took charge of the business of his wife, as her agent or trustee. He moved into her residence, took control of all her estate, and what she afterwards acquired, and appropriated the rents, issues, and profits thereof to his own use until his death, which occurred in July, 1887. The certificate or receipt for $5,250 turned out to be wholly worthless. These certificates or receipts were afterwards exchanged by Mr. Allen, acting for his wife, for 50 bonds of the St. Louis, Council Bluffs & Omaha Railroad Company, of $1,000 each. These were returned to Mr. Paschall in lieu of the said certificates, August 16, 1875. On the 10th day of March, 1876, Mr. Paschall returned these bonds to Mr. Allen, who told him there was to be a compromise of them. These 50 bonds were exchanged for 33 new bonds of $1,000 each, issued by the same company, dated June 28, 1878, and bearing a lower rate of interest. The old bonds were compromised by accepting the new ones at 33 1/3 per cent. off. The interest due on the old bonds was also compromised, and the amount agreed upon was retained by Mr. Allen, for which he never accounted. Mr. Allen died July 23, 1887, leaving a will dated June 11, 1887. His estate was valued at several million dollars. In his will he referred to his wife, their happy married life, and the marriage settlement, and by it gave her in addition the household furniture, carriage, and horses, a home for life, and $7,000 per year while she should live. After the death of Mr. Allen, on the 30th of July, 1888, this suit was commenced by his widow, Eugenia L. Allen, against the executors of deceased. Since the trial in the circuit court the plaintiff has died, and the suit is now prosecuted by her executors, Paschall Carr and Walter B. Carr.

The petition contains two causes of action. The first charges, in effect, that Mr Allen intended and covenanted to settle upon plaintiff securities in the value and amount of $50,250; that the securities indicated by him in the contract were wholly unknown to plaintiff, and within the knowledge of Mr. Allen; that said securities were not of the value of $50,250; that they remained under the control of Mr. Allen, who, after the marriage, without her consent, converted them into other securities of the value of $33,500, which she now has; that the consideration for the relinquishment of her dower rights has failed in the sum of $16,750. She asks for the return to her of additional securities in that sum, or for a judgment in that amount, with interest.

In the second cause of action she alleges, in effect, that by virtue of said marriage settlement she was entitled to the income, interest, and profits of her separate estate; that during his life Mr. Allen received and appropriated the same to his own use. An account of the sums so received and appropriated is asked for.

The defendants, in answer to the first count or cause of action, allege, in effect, that Mr. Allen, after the solemnization of the marriage, delivered to Henry G. Paschall, brother of Mrs. Allen, the receipts described in the marriage settlement, and that they were delivered to and received by him in full discharge and satisfaction of the obligation of the marriage contract.

To the second count or cause of action the defendants aver that the usufructs and rents of Mrs. Allen's estate were not sufficient in amount for the support and maintenance of her children; that, in consideration of such fact, the usufruct and rents of her estate were to be given to Mr. Allen; that after the marriage, Mr. Allen, with the approval of Mrs. Allen, took upon himself the support and maintenance of the children, and continued to support them during his life. It is nowhere alleged that Mr. Allen was bound by the marriage contract, or any other contract, to support the children. It is alleged that Mr. Allen's reception and use of the rents of Mrs. Allen's estate was by her consent and approval. These defenses in the answer were denied in the reply of plaintiff. After a trial in the circuit court, the bill was dismissed, and plaintiff appealed.

The controversies arising on the first count of the petition grow out of the proper construction to be given to the following provision of the contract: "The said party of the first part further covenants and agrees that on the day of the solemnization of the said marriage he will deliver to the party of the second part, or to her agent or attorney, for her use, securities amounting in the aggregate to the sum of fifty thousand two hundred and fifty dollars, — to wit, a certificate or receipt for payment of forty-five thousand dollars for purchase of bonds from the Chillicothe & Omaha Railroad Associates, said bonds to be issued by the St. Louis, Council Bluffs & Omaha Railroad Company, and also a certificate or receipt for payment of five thousand two hundred and fifty dollars for purchase of bonds of the St. Louis & St. Joseph Railroad Co., — both receipts dated July 12, 1871, and signed by Geo. C. Fabian, secretary and treasurer; which said securities shall from the delivery thereof, as aforesaid, be accounted, reckoned, and taken as a separate and distinct estate of and from the estate of him, the said party of the first part, and be in no wise liable or subject to him or to the payment of his debts, but the profits or increase that shall hereafter be gotten, gained, or made of the same, by accumulation of interest or otherwise, shall be subject to the control, use, and disposition of the party of the first part during his life."

1. It is insisted on the part of plaintiff that the undertaking of Mr. Allen, as properly deduced from the contract, was that he should deliver to Mrs. Carr securities of the actual value of $50,250, while defendants contend that he only agreed to deliver the particular certificates and receipts described in the contract, and none others. We think it established beyond question by the evidence that the securities, as they were called, specified in the contract, were not at the date of the marriage of the value of $50,250, nor were the bonds into which these certificates or receipts were afterwards converted of that value at any time from the dates of their receipt by Mr. Allen until his death. It may then, without considering the evidence in detail, be taken as an established fact that the securities held by Mr. Allen as trustee for his wife, whether they consisted in the certificates or the bonds into which the certificates had been converted, were not at any time during the marriage of the designated value. If then the parties intended by their contract that the securities to be delivered should be of the actual value of $50,250, a deficiency would exist, which should be made good out of the estate of Mr. Allen.

We are asked, in the first place, by ...