Conrad v. Conrad

• Citation: 280 S.W. 707
• Parties: CONRAD et al. v. CONRAD et al
• Decision Date: 26 February 1926
• Court: Missouri Supreme Court

280 S.W. 707

CONRAD et al. v. CONRAD et al

Supreme Court of Missouri, Second Division

February 26, 1926

Brownrigg Mason & Altman, of St. Louis, for appellants.

J. L Hornsby, of St. Louis, for respondents.

OPINION

Statement

RAILEY, C.

This action was commenced in the circuit court of the city of St. Louis, Mo., on May 18, 1923. The petition alleges:

That plaintiff Jane Cartside Niggeman is an infant under 14 years of age, and that Edgar C. Niggeman was on the -- day of May, 1923, duly appointed by said circuit court the next friend of said infant; that on November 30, 1922, plaintiffs were entitled to the possession of the following described real estate situate in said city, to wit:

'The north twenty-five (25) feet of lot seven, block two (2), Page and McPherson subdivision lots, and in city block 2386, fronting twenty-five (25) feet on the west line of Grand avenue, by a depth westwardly of two hundred fifty (250) feet, bounded north by lot six, bounded west by lot twelve (12) of said block, east by Grand avenue, and south by the south portion of said lot seven (7).'

That on December 1, 1922, defendants entered into possession of said property and unlawfully withhold from plaintiffs the possession thereof to their damage in the sum of $ 1,000.

The petition further avers that plaintiffs are the sole living descendants and only heirs of Minnie Conrad, deceased; that said Minnie Conrad was the mother of all said plaintiffs, except Jane Cartside Niggeman, who is the daughter of Julia C. Niggeman, deceased daughter of said Minnie Conrad; that the latter died in the city of St. Louis aforesaid, on or about November 20, 1903, and was at the time of her death the owner of said premises; that said Minnie Conrad left surviving her, her husband, Jacob Conrad; that said Minnie Conrad died intestate as to her children and other descendants; that said Jacob Conrad, upon the death of his said wife, Minnie Conrad, became seized and possessed of an estate by the courtesy in the above-described real estate; that thereafter, about the -- day of -- , 1919, said Jacob Conrad married defendant Anne Conrad; that said Jacob Conrad died on or about the 29th day of November, 1922, and at the time of his death was in possession of the above-described premises as such tenant by the courtesy; that defendant Anne Conrad was, at said time, living with said Jacob Conrad in said premises; that said Anne Conrad, ever since the death of her said husband, remained in possession of said premises, and is now, with said Charles L. Hicks, in possession of same, without right of possession in either of said defendants.

It is further alleged that defendant Anne Conrad, since the death of said Jacob Conrad, acknowledged the right of plaintiffs to the possession of said real estate held by said Jacob Conrad as tenant by the courtesy by surrendering to plaintiffs possession of other real estate, of which said Jacob Conrad held possession by the courtesy at the time of his death, and of which other real estate defendant Anne Conrad had taken and held possession upon the death of said Jacob Conrad.

It is further averred that neither of the defendants herein have any property out of which a judgment can be collected, and that said defendants are insolvent as plaintiffs are informed and believe; that the monthly value of the rents and profits of the premises above described is $ 75.

The petition concludes with a prayer for judgment for the recovery of said premises and $ 1,000 damages, for the unlawful withholding of same from plaintiffs, and $ 75 for monthly rents and profits from the rendition of judgment, until possession of said premises is delivered to plaintiffs; that a receiver be appointed to take possession of said real estate above described and to hold and administer the same, and collect the rents therefrom pending this litigation, and for such other relief may seem right and proper.

The defendant Anne Conrad filed a separate answer, and admitted therein that she is in possession of the premises described in petition; that she is the widow of Jacob Conrad, deceased, having married him on February 8, 1919; that said Jacob Conrad died on November 29, 1922. She denied every other allegation contained in said petition. She further alleges that on and prior to February 8, 1919, said Jacob Conrad was the owner in fee simple of said real estate, and, prior to his marriage with this defendant, he contracted and agreed with defendant that if she would marry him, in consideration of said marriage, he would convey said property to a third person, and procure a conveyance by said third person to him and this defendant, as husband and wife, by such an instrument of conveyance as would vest in him and this defendant the fee-simple title to said property as tenants by the entirety; that, in consideration of said agreement, and in reliance on said promise and contract, she married him as aforesaid, and thereafter, in performance of said contract, the said Jacob Conrad, in a general warranty deed, joined in by this defendant as his wife, on May 17, 1919, conveyed said property to one Gladys Eichor, who, on May 19, 1919, by general warranty deed conveyed said property to Jacob Conrad and this defendant Anne Conrad, his wife; that on the 17th day of May, 1919, at the time of said conveyance to Gladys Eichor, said Jacob Conrad claimed to be, and in good faith believed himself to be, the owner of said property in fee simple; that, by reason of the premises, and of the death of said Jacob Conrad, she, as survivor of said marriage, is now the owner of said property and entitled to the possession of same.

It is alleged that plaintiffs, and the deceased ancestor of the minor plaintiffs, at all times after the making of said marriage contract, up to the death of said Jacob Conrad, knew that he claimed to be the owner of said property, and had entered into said contract with this defendant, and that this defendant, relying on his promise to vest in her as tenant by the entirety the fee-simple title to said property, had married said Jacob Conrad; that plaintiffs, with the knowledge aforesaid, never communicated to this defendant any claim on their part to any interest in said property, and so lulled this defendant into security; that said Jacob Conrad, during said period, was possessed of other property out of which he might and would have made provision for this defendant, had such claim been asserted by said plaintiffs.

It is averred that, by reason of the failure of plaintiffs to assert their said claim during the lifetime of Jacob Conrad, and by reason of her ignorance of said claim of plaintiffs, which was not divulged to her until after the death of said Jacob Conrad, this defendant was prevented from taking any steps to have said Jacob Conrad substitute other property for that which he had conveyed to her as aforesaid; that, by reason of the premises, plaintiffs are now estopped to assert said claim against this defendant. The answer closed with a prayer that she go hence without day and recover her costs.

The defendant Charles Hicks filed an answer, and admitted that he was in possession of a portion of the premises described in petition, and denies every other allegation of petition. Plaintiffs in their reply deny all the allegations of new matter contained in the separate answer of defendant Anne Conrad. A jury was waived and the cause tried before Hon. Frank Landwehr, presiding as judge in Division No. 14 of said court.

Plaintiffs' Evidence. -- The evidence is brief, and substantially as follows:

Louis Craig, deputy clerk of the St. Louis probate court, identified the will of Minnie Conrad, recorded in said court, which was offered in evidence by plaintiffs, and reads as follows:

'Will of Minnie Conrad.

'St. Louis, November 16, 1903.

'I, Mrs. Minnie Conrad, wife of Jacob Conrad, do hereby transfer and devise all real estate and houses at Nos. 2843 and 2847 N. Grand avenue back to my husband, said Jacob Conrad, without recourse.

'[Signed] Minnie Conrad.

'Witness: Martin S. Sommer.

'Witness: J. Willetta Dunne.

'Witness: Mrs. H. C. Cooper.'

The attesting testimony, upon which the will was admitted to probate, reads as follows:

'State of Missouri, City of St. Louis -- ss.:

'Be it remembered that on this 27th day of November, A. D. 1903, before me, the undersigned, clerk of the probate court of the city of St. Louis, personally came Martin S. Sommer and Laura Cooper, who, being by me duly sworn, on their oaths say: 'We saw Minnie Conrad, the testatrix, subscribe her name to the annexed instrument, in writing, bearing date the 16th day of November, 1903, and heard her declare the same to be her last will and testament; we subscribe our names thereto as witnesses in the presence and at the request of the said testatrix, and at the time of the execution of said instrument as aforesaid, and of our subscribing the same as such witnesses, she, the said testatrix, was of sound and disposing mind, to the best of our knowledge and belief. I, Laura Cooper, one of the aforesaid witnesses, do furthermore say that I am the identical person who signed said instrument in writing as Mrs. H. C. Cooper, the initials of which are those of my husband. Said testatrix died on or about November 20/ '03.'

'Martin S. Sommer.

'Laura Cooper,

'Wife of H. C. Cooper.'

'Sworn to and subscribed before me this 27th day of November, A. D. 1903.

'Bruce Starke, Clerk,

'By Barney Seaman, D. C.'

The inventory of said estate was identified by Louis Craig, and offered in evidence by plaintiffs. It showed, among other things, that Jacob Conrad, the executor, inventoried as the property of Minnie Conrad, deceased, the premises described in the...