Collier v. Porter

• Decision Date: 29 March 1929
• Docket Number: No. 27217.,27217.
• Citation: 16 S.W.2d 49
• Parties: J.H. COLLIER, Appellant, v. CHARLES E. PORTER ET AL.
• Court: Missouri Supreme Court

16 S.W.2d 49

J.H. COLLIER, Appellant, v. CHARLES E. PORTER ET AL.

No. 27217.

Supreme Court of Missouri, Division One.

March 29, 1929.

Appeal from Miller Circuit Court. — Hon. H.J. Westhues, Judge.

REVERSED AND REMANDED (with directions).

R.P. Stone and Harry H. Kay for appellant.

(1) The demurrer to part of defendants' answer should have been sustained. Obrien v. Ash, 169 Mo. 283. (2) The widower is entitled to one-half of the property of which his wife died seized, absolutely, subject to the payment of her debts, where she dies without descendants. Secs. 320, 321, R.S. 1919. A wife cannot defeat a husband's statutory rights in her property by will. Spurlock v. Burnett, 183 Mo. 524. Under Sec. 321, R.S. 1919, called by the court the twin section of Section 320, the widow is entitled to all the property that came to her husband by right of marriage and in addition one-half of her husband's property if she so elect. Sec. 1, Laws 1921, p. 119, gives the husband the same rights in his deceased wife's estate where she dies without issue as is given to the widow under Section 321. The rights given a husband in his deceased wife's estate by Sec. 320, R.S. 1919, as effected by Sec. 1, Laws, 1921, p. 119, cannot be defeated by the will of the deceased wife. Gilroy v. Brady, 195 Mo. 205; Lilly v. Menke, 143 Mo. 137; Hafner v. Miller, 252 S.W. 722; Spurlock v. Burnett, 183 Mo. 524. (3) Where a widow (in this case a widower) elects under the statute he is not only "entitled to one-half of his deceased wife's property but in addition he is entitled to a homestead in the other half." Sec. 320, R.S. 1919; Sec. 1, Laws 1921, p. 119; Adams v. Adams, 183 Mo. 396. (4) It has been held by this court that Sec. 321, R.S. 1919, creates an estate other than dower, which can only be defeated, where the widow, being also entitled to dower, fails to file her election, and is relegated to her right of dower under Secs. 315-317, 318, R.S. 1919. Klocke v. Klocke, 276 Mo. 572. (5) Wills are ambulatory, and must be construed under the laws that are in effect at the date of the death of the testator: Woerner Am. Law of Administration, sec. 419, p. 884; Keeney v. McVey, 206 Mo. 42. (6) The enforcement of contracts of the character of the one relied upon by the defendant in this case is an exception, which the courts of equity have engrafted upon the Statute of Frauds, and is one that is sparingly exercised, and then only within well-defined rules of procedure. Obrien v. Ash, 169 Mo. 283; Hayworth v. Hayworth, 236 S.W. 26; Pomeroy, Specific Performance, p. 154. (a) The evidence as to the contract relied on by respondent does not measure up to the requirements as to clearness, explicitness and definiteness; it is indefinite as to time, terms and parties. (b) The proof of the contract does not prove the contract pleaded. (c) The proof offered to support the contract does not meet the third requirement as set out in the Hayworth case. (d) The proof does not meet the fourth requirement as set out in the Hayworth case. See also, Rosenwald v. Middlebrook, 188 Mo. 88; Grantham v. Gossett, 182 Mo. 651. Evidence of declaration by parties since deceased, should not be given much weight unless supported by other evidence. Rosenwald v. Middlebrook, supra. (7) A wife cannot convey her property away secretly with intent to defraud her husband out of his marital rights; neither can she will it away. Headington v. Woodward, 214 S.W. 963; Gilroy v. Brady, 195 Mo. 205. (8) A married woman, may make a valid will if she be of sound mind and over the age of eighteen years; but such will must be made subject to the rights of her husband. Sec. 506, R.S. 1919; Waters v. Herbroth, 178 Mo. 166.

Irwin & Bushman for respondent.

(1) Failure of appellant to comply with Rule 15, relating to the assignment of errors, or to include such assignment in his statement of points and authorities, precludes review. Thornbrugh v. Hall, 263 S.W. 147; Coe v. Greenley, 295 Mo. 666; Lanphear v. Training School, 263 S.W. 146; Coffey v. Higbee, 298 S.W. 767; State ex rel. Davidson v. Caldwell, 276 S.W. 633. (2) An election to take under Sec. 321, R.S. 1919, disclaims and forfeits all rights to dower and one's rights under the law are fixed by the election and although the one making may be disappointed or defeated in his or her supposed interest by the payment of debts, yet he must abide the result. Gaines v. Cariker, 50 Mo. 564; Wigley v. Beauchamp, 51 Mo. 546; Hamilton v. O'Neil, 9 Mo. 13; Hornsey v. Casey, 23 Mo. 372; Chin v. Stout, 10 Mo. 711. (3) The contract involved was entered into prior to the Act of March 29, 1921, Laws 1921, page 119, at which time undisputedly Emma Collier had the right and authority to make disposition of her separate property and to make contracts concerning the same which would be enforceable against her during her lifetime or after her death. Clay v. Meyers, 183 Mo. 157; Wiggins v. Price, 277 Mo. 351; Brooks v. Barker, 228 S.W. 805. (4) The Married Woman's Act, Secs. 7323-7328, is not repealed by the Act of 1921 abolishing curtesy. Laws 1921, p. 119. And a married woman may contract concerning her separate property. O'Brien v. Trust Co., 5 S.W. (2d) 76. (5) The property is not claimed by respondent under the will as such, but the will is admissible as showing an intention to pay for services rendered and to show an attempted performance on the part of the maker of an oral contract. Lillard v. Wilson, 178 Mo. 158: Hayworth v. Hayworth. 236 S.W. 26. (6) There was no homestead succession at common law; it has nothing to uphold it but the statute. Therefore if a married woman own land by general title, occupying it as a homestead and dies leaving a husband and minor children, there is no continuation of the homestead in the husband or children. Keyte v. Peery, 25 Mo. App. 400; Chapman v. McGrath, 163 Mo. 296; Richter v. Bohnsack, 144 Mo. 518.

SEDDON, C.

Plaintiff, the widower of Emma Collier, deceased, brought this action, seeking a widower's share in the real estate of his deceased wife under, and by virtue of, Sections 320 and 321, Revised Statutes 1919, and under, and by virtue of, an act of the General Assembly which was approved on March 29, 1921, and which became operative and effective on June 20, 1921. [Laws of 1921, page 119.] The petition is cast in two counts, the first count being one to ascertain and determine the title to certain described lands, owned and possessed by the deceased wife at her death, and situate in Miller County, Missouri; and the second count being one for partition of the same lands. The separate counts of the petition are conventional in form.

The defendants are the brothers and sisters of Emma Collier, deceased. All of the defendants made default, except the defendant, Charles E. Porter, who answered. The answer of said defendant admits the marriage of plaintiff and Emma Collier on or about November 1, 1916; that said Emma Collier died testate in March, 1925, without surviving issue, and leaving surviving her, as her only heirs-at-law, the defendants, her brothers and sisters, and the plaintiff, her husband; that Emma Collier died seized and possessed of all the lands described in the petition; and that plaintiff filed a renunciation of the will of Emma Collier within six months after her death. The answer denies that plaintiff has any right, title, or interest in and to the lands described in the petition, and avers, among other matters, that "on the 8th day of September, 1917, the deceased, Emma Collier, made and executed her last will and testament wherein she, the said Emma Collier, devised and bequeathed to her husband, J.H. Collier, the sum of one dollar; that she further devised and bequeathed to her sisters, Rosa Ellis and Nettie Erkson, each the sum of one dollar, and to her brothers, E.B. Porter and A.B. Porter, each the sum of one dollar, and all the balance of her property, both real and personal, which she owned at the time of her death, she bequeathed to this defendant, Charles E. Porter; a copy of which will is hereto attached and marked Exhibit A, and made a part of this petition.

"Defendant says that all of the property of which the said Emma Collier died seized and possessed was property acquired by her through inheritance and by means of her own separate labor, and was owned and possessed by her prior to her marriage to the plaintiff, J.H. Collier, and that no part of said property was acquired by the joint labor of the said J.H. Collier and the said Emma Collier, deceased, after their intermarriage about the year 1916; that said property, and each and all thereof, remained the separate property of the said Emma Collier at the time of her death.

"Defendant says that, at the time of the death of the said Emma Collier, she was more than sixty years of age, and that she had been previously married upon two former occasions; that her first husband died a long number of years ago, and that she thereafter intermarried a second husband about the year 1903, and resided with him until about the year 1913, at which time the said second husband died; that the said Emma Collier thereafter remained a widow until her intermarriage with the plaintiff about the year of 1916, and that, after her marriage with the plaintiff Collier, the said Collier mistreated her and left and abandoned her without just cause or excuse, but because the said Emma Collier refused to deed her property to the plaintiff; that his treatment toward her was cruel and inhuman, and although she was often sick and needed the care and attention of a physician and was almost totally blind, yet the said Collier failed to administer to her wants and would charge her for taking her to the doctor, and that he had abandoned and was living separate from the said Emma Collier at the time of her death; that said abandonment had been continuous for more than one year next before the death of the said Emma Collier.

"Defendant further says that,...