Carr v. Lackland

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

20 S.W. 624

112 Mo. 442

Carr et al., Executors, Appellants, v. Lackland et al., Executors

Supreme Court of Missouri, Second Division

November 29, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

Alex. Martin and Hitchcock, Madill & Finkelnburg for appellants.

(1) First cause of action: The securities in 1871 were of no actual value. The respondents have received credit for any and all subsequent appreciations of said securities, in so far as Mrs. Allen has been benefited thereby; the deficiency of about $ 17,000 being still unreduced. (2) Does the marriage settlement imply an agreement or covenant on Mr Allen's part to furnish Mrs. Allen with certain securities in the value of $ 50,250? (3) The attitude of the contracting parties forbade inquiry on the part of Mrs Allen, and imposed the highest good faith on the part of Mr. Allen. Kline v. Kline, 57 Pa. 120; Pierce v. Pierce, 71 N.Y. 154; Brerer's Appeal, 92 Pa. 265. (4) Recitals of value are equivalent to express covenants to that effect. Aspdin v. Austin, 5 Q. B. 671; Platt on Covenants, 33; Atherly on Marriage Settlements, 27 Law Lib. 454; Holles v. Carr, 3 Swan, 638; Glegg v. Glegg, 4 Bro. P. C. 614; Farrall v. Hilditch, 5 Com. B. (N. S.) 854; Peachey on Marriage Settlements, 373. (5) Did Mr. Allen believe himself, and convey to Mrs. Allen the impression and belief, that he was giving to her securities in the value of $ 50,250? (6) The presumption is that Mr. Allen intended to give Mrs. Allen an adequate consideration for the release of her marital rights in his estate. When the consideration intended fails, equity decrees compensation to make up the deficiency. Peachey on Marriage Settlements, 373; Atherly on Marriage Settlements, 526, 527; Speake v. Speake, 1 Ver. 217; Parker v. Harvey, 4 Bro. P. C. 604; Glegg v. Glegg, 4 Bro. P. C. 614; 3 Pomeroy on Equity Jurisprudence, sec. 1403; Johnson v. Johnson, 30 Mo. 72. It is not necessary to return any part of the consideration to enforce compensation or damages for partial failure of it. Musser v. Adler, 86 Mo. 445; Cummiskey v. Williams, 20 Mo.App. 606; Carpenter v. Myers, 32 Mo. 213; Voss v. McGuire, 18 Mo.App. 477. (7) When this settlement is interpreted in the light of surrounding conditions and circumstances of the parties, the intention to give Mrs. Allen $ 50,250 of securities plainly appears. (8) Unless the securities given amounted to $ 50,250 in value, they failed to carry out the intention of Mr. Allen, to make a provision for the support of Mrs. Allen to take the place of her rights in his estate. (9) In the language used, something more than description was intended. He declares they are securities. He declares the amount which was unnecessary except to indicate the actual value; as the denomination of each certificate is specifically given in the description of them, the certificates themselves recite that they cost the amount of value imputed to them by Mr. Allen. (10) The meaning of value which attaches to the words "amounting in the aggregate to $ 50,250" cannot be taken away by the words "to-wit." 2 Abbott's Law Dictionary, 447. The scilicet merely particularized the kind of securities which were recited to be of the value of $ 50,250. (11) The conduct and dealings of Mr. Allen in relation to the securities prove that he regarded himself as bound to furnish Mrs. Allen with securities in the value expressed by him in the settlement. His dealings with the securities considered in detail. (12) Second cause of action: The contract contains the most positive renunciation by Mr. Allen of all claims upon her estate. Recitals to that effect considered. 2 Washburn on Real Property [2 Ed.] 662, 663. (13) Effect of the clause authorizing Mrs. Allen to appoint to uses. Rubey v. Barnet, 12 Mo. 1; Russell v. Eubank, 84 Mo. 82. (14) Power of unlimited disposal repeated and emphasized. The covenant of Mr. Allen to keep her separate estate separate and distinct from his own -- not to be subject to his debts. The word "control" cannot operate to take away the beneficial use from Mrs. Allen. 2 Washburn on Real Property [2 Ed.] 686. Russell v. Eubank, 84 Mo. 82, does not sustain respondent's construction. (15) When there is repugnancy between the granting clause and the habendum, the latter must yield. 2 Washburn on Real Property, 652; Major v. Bulkley, 51 Mo. 227; Donnan v. Intelligencer Co., 70 Mo. 168; Elphinstone, 92. (16) The word "control," as used in this instrument, is interpreted in the instrument itself. That interpretation excludes the meaning of a beneficial use. When use is meant, the word "use" is added to the word "control." (17) Instruments must be taken most strongly against the writer of them. Willard on Real Estate, 401; Elphinstone, 94. All doubtful phrases will be solved in her favor so as to sustain the instrument as a beneficial settlement in her favor. (18) Instruments of every description must be construed in the light of facts relating to the subject-matter and to the condition and circumstances of the parties. French v. Carhart, 1 Comst. 102; Swick v. Sears, 1 Hill, 17; Jones v. DeLassus, 84 Mo. 541. First. Mr. Allen had a large estate and had no need of Mrs. Allen's estate. Second. Is it reasonable he should have retained the use of the estate settled on Mrs. Allen, coming from himself? He retains it by employing the word "use." Third. Mr. Allen devoted the use of the Chestnut street house to Miss Eliza Carr during a portion of the coverture, thereby conceding the use to Mrs. Allen, and those whom it was her duty to support. Fourth. The answer is an admission of record that Mrs. Allen needed the use of her estate. Neither the answer nor the settlement discloses any covenant or provision on his part to supply the want of her own estate. (19) Mr. Allen, by virtue of the marriage settlement, if construed as giving him the use of Mrs. Allen's estate during coverture, acquired an interest and estate he could not have acquired by marriage alone.

Boyle & Adams for respondents.

(1) On first count, plaintiffs' petition, when analyzed, rests upon an alleged covenant in the marriage contract (which being sued upon, is fully affirmed) that the securities undertaken to be delivered to Mrs. Allen on July 12, 1871, were then of the actual value of $ 50,250, but the contract when considered contains no such covenant. First. The contract is plain and unambiguous, and no extraneous aids are required to get at the intention of the parties. 2 Parsons on Contracts [6 Ed.] star p. 499; Walker v. Tucker, 70 Ill. 527. Second. Construction does not depend on motives, purposes or expectations of the parties to the contract, as contradistinguished from the plain import of the words used, or upon what either party thought, but upon what they both agreed. Watrous v. McKie, 54 Tex. 65; Brundhild v. Freeman, 77 N.C. 128. Third. The contract must be construed and interpreted as it was made and understood at the time of entering into it, and with a view to the condition of things at that time. Railroad v. Clopper, 131 U.S. Fourth. There is no different rule for the construction of a marriage contract, when such contract is admitted to be duly executed, valid and binding. Peachey on Marriage Settlements, pp. 456, 457, 523. (2) The detailed description of the certificates or receipts, the date fixed for delivery thereof, the fact that they were then assignable choses in action of value, that they were by delivery, on the day therein fixed, to immediately constitute a separate estate in equity, that no language guaranteeing or reciting value is employed, that figures representing no round sum, but only the aggregate of the face value of the certificates or receipts are used, and other details of language contained in the contract, show that the subject-matter of the contract was the certificates or receipts therein described, and also show that the parties used the figures $ 50,250, not as representing actual value, but as descriptive only of said subject-matter, intending thereby to refer to face value only. Such is the plain and natural meaning of the words employed. Allen v. Drake, 19 S.W. 41. Even if there were representations as to value, they could not furnish any ground of action. Cooper v. Levering, 106 Mass. 79; Biddle on Warranties in the Sale of Chattels, sec. 330. (3) The plain and natural meaning of the words, as shown in point 2, is supported by authority. The word "to-wit," following the general description of securities, shows that the particular description thereafter following is what the parties intended. 2 Bouvier's Law Dictionary, 613; Rooke v. Lewis, 9 Minn. 317. Again, the particular recital of the certificates and receipts which follow the general word "securities" limits the general term to such as are thereafter particularized. Dart v. Bagley, 19 S.W. 311; Torrance v. McDougald, 12 Ga. 526; Grumley v. Webb, 44 Mo. 444; Duff v. O'Reilley, 88 Mo. 422. (4) Courts are disinclined to disturb marriage settlements, much less to make new contracts for parties of the age, wealth and experience of those involved in this case, especially under circumstances similar to those in the case at bar. Smith's Appeal, 115 Pa. St. 319; Kesler's Estate, 143 Pa. St. 386; Hosford v. Hosford, 41 Minn. 245; McNutt v. McNutt, 116 Ind. 545; Appeal of Neeley, 124 Pa. St. 406; Ludwig's Appeal, 101 Pa. St. 535; Peet v. Peet, 81 Iowa 172. (5) In any event the contract sued on is too doubtful and uncertain for equity to enforce. 3 Pomeroy on Equity Jurisprudence, sec. 1405, and cases cited; Strange v. Crowley, 91 Mo. 287; Nichols v. Williams, 22 N.J.Eq. 363; Bowman v. Cunningham, 78 Ill. 48. (6) The securities mentioned in the contract were received on July 12, 1871, in full satisfaction of the obligation,...