Coulter v. Lyda

• Decision Date: 09 November 1903
• Citation: 102 Mo. App. 401,76 S.W. 720
• Parties: COULTER v. LYDA.
• Court: Missouri Court of Appeals

76 S.W. 720

102 Mo. App. 401

COULTER v. LYDA.

Court of Appeals at Kansas City, Missouri.

November 9, 1903.

STATUTORY ALLOWANCE TO WIDOW—ANTENUPTIAL CONTRACT—ADMINISTRATOR—DISTRIBUTION BEFORE APPEAL.

1. The statutory allowance to a widow for support and additional allowance out of the personal estate of the deceased, given by Rev. St. 1899, §§ 105-107, 109, are not barred by an antenuptial contract, made when the title of the wife's estate does not vest in the husband on marriage, and providing that the wife shall have full ownership and control of her separate property, and be barred from any claim on the husband's estate as dower or otherwise; such agreement being void for want of consideration.

2. An application by a widow for her statutory allowances from the personal estate of her husband during the term of probate court at which final settlement was made should be granted, though the administrator's final settlement had previously been approved and the order for his discharge entered of record; 10 days after the adjournment of the term being allowed for appeal to circuit court by Rev. St. 1899, §§ 278, 279, and the circuit court being authorized, under the direct provisions of Rev. St. 1899, § 285, to try the whole case anew.

3. That an administrator distributed the whole of an estate under order of the probate court before the time for appeal expired is no defense to claims of persons interested in the estate on trial de novo in the circuit court.

Appeal from Circuit Court, Randolph County; John A. Hockaday, Judge.

Proceedings for the allowance of the claim of B. F. Coulter, as executor of the estate of Sarah A. Saunders, against the estate of George W. Saunders, deceased. From a judgment in favor of Lewis M. Lyda, administrator of the estate of George W. Saunders, disallowing the claim, claimant appeals. Reversed.

Dysart & Mitchell, for appellant. R. S. Matthews and Otho F. Matthews, for respondent.

SMITH, P. J.

This is a controversy that originated in the probate court. The facts which gave rise to it may be stated in about this way: In 1888 George W. Saunders and Sarah McCanne were married in this state. Both parties to the marriage were somewhat advanced in years. They each had been previously married and had children by such marriages. Both of them owned considerable real and personal property. Just preceding their marriage they entered into a written contract which was as follows:

"This agreement, made and entered into this the 18th ____, 1888, between George W. Saunders and Sarah A. McCanne, both of Randolph county, state of Missouri, witnesseth that, said George W. Saunders and Sarah A. McCanne being about to enter into the bonds of matrimony, and being desirous that each shall retain an exclusive right of control over his or her own property which they now own, therefore it is hereby naturally agreed and contracted that she, the said Sarah A. McCanne, is to have complete and full control, ownership, possession, and right to all the property she at this time holds, for and during the time that said marriage shall exist and during the lives of both parties, be that property real or personal, and the property belonging to the said Sarah A. McCanne shall not be subject to disposal or the payment of the debts of said George W. Saunders that he may have heretofore or hereafter contracted. It is also understood and agreed between these contracting parties, the said George W. Saunders and Sarah A. McCanne, that the said property shall include all debts, credits, notes, and accounts to which the said Sarah A. McCanne may at this or any future time be entitled. And in consideration of the above provisions, contract, and agreement the said Sarah A. McCanne doth hereby agree and consent that the estate and property of the said Geo. W. Saunders, both real and personal, shall be exempt and acquitted from all claims and rights she might otherwise acquire in the same by virtue of the contemplated marriage between the said Geo. W. Saunders and her, the said Sarah A. McCanne, either as dower or otherwise. It is further agreed that the proceeds of the estates of the said Geo. W. Saunders and Sarah A. McCanne shall be used for the support of both during their marriage or life of both parties. In witness whereof, they, the said Geo. W. Saunders and Sarah A. McCanne, have each hereto subscribed their names and affixed their seals this 18th day of September,

                1888.            Geo. W. Saunders.     [Seal.]
                                "Sarah A. McCanne.     [Seal.]
                  "Witnesses: R. B. Wilson, A. T. McCanne
                  "Filed for record July 9, 1889, at 8 a. m
                

J. C. Samuel, Recorder, by John N. Hamilton, D. C. Fee, 50 cents, paid."

The parties to this contract and marriage continued to live together until November 5, 1899, when the said Geo. W. Saunders died. In December, 1900, the other party, the widow, also died, leaving a will wherein the plaintiff, Coulter, was named as executor. The defendant, Lyda, was duly appointed administrator of the estate of the said Geo. W. Saunders. The widow did not receive any of the allowances to which she was entitled under sections 105, 106, 107, 109, Rev. St. 1899. During the currency of the administration and a few months before her death she through her attorneys demanded of said administration the payment of such allowances, or, in other words, $150 in lieu of the year's provisions not on hand, and the additional amount of $400 in lieu of personal property under said section 109. These allowances were not paid her during her lifetime, and after her death her executor insisted that such allowances be paid to him. The widow caused to be prepared an application to the probate court setting forth her right to the allowances specified in the sections of the statute already referred to, and praying for an order on the administrator for the payment of the same. The administrator waived service of the application on September 10, 1901. It appears that the attorneys for her and the administrator by agreement postponed the hearing of the subject-matter of the application by the probate court from time to time. The matter seems to have dragged along without any action being taken thereon by the court until after the death of the widow, until the term at which the administrator made his final settlement, and until after the final settlement had been filed and approved, when the executor at that term appeared and urged a consideration by the said court of the application. The court refused to make the order, and thereupon the executor appealed from the order approving the final settlement, discharging the administrator, and refusing the application. The trial de novo in the circuit court resulted in judgment for the administrator, and the executor appealed.

The main question which the appeal has brought before us for determination is whether the widow was cut out of her statutory allowances by the provisions of the antenuptial contract. There is no question but that the contract was understandingly and fairly entered into by both of the parties to it. It may be inferred from the facts and circumstances which the evidence discloses that Mr. Saunders and Mrs. McCanne found, at the end of their courtship, that the only impediment in the way of their marriage was the property owned by each of them, neither being willing to enter into the marriage relation unless their right, title, and interest to their property should respectively be unaffected and unchanged by the contemplated marriage; and it may be presumed that they knew, or were advised by some one who did know, that the impediment—the difficulty in the way of the marriage—could be removed by entering into a written contract providing for the retention by each of the title to his and her property, notwithstanding the marriage thereafter. They were no doubt influenced by considerations of this kind to enter into the contract. It is now required of us to determine what effect should be given to the contract so entered into.

In Bishop's Law of Married Women, § 422, it is said, quoting from a Connecticut case (Andrews v. Andrews, 8 Conn. 79), that "there is perhaps no principle better settled than that any provision which an adult, before marriage, agrees to accept in lieu of dower, will amount to a good equitable jointure." And within this principle it was held that where the antenuptial agreement secured to the wife her own real and personal property and the avails of her labor during marriage for her separate use, and this agreement was fully carried out, in consideration of which she was to have no dower in her husband's lands on his death, equity would enforce the contract as a bar to dower. The contract in Logan v. Phillipps, 18 Mo. 23, was entered into in 1844, and was very much the same in its provisions as that here; and it was there held that under the law then in force the effect of the marriage was to immediately vest the personalty of the wife in the husband, and that the antenuptial contract impliedly created a trust which secured it for her future use.

Under the statute in force when the present contract was entered into, marriage was not of itself a gift by the wife to the husband of her personalty. Section 3296, Rev. St. 1879; section 6869, Rev. St. 1889; section 4340, Rev. St. 1899. It was further held in Logan v. Phillipps that the provision made by the contract was, under the statute, a sufficient jointure to bar dower. But since, under the statute in force when the...