Davis v. Cook

• Decision Date: 09 July 1935
• Citation: 85 S.W.2d 17,337 Mo. 33
• Parties: Cora Belle Davis et al. v. Joseph H. Cook and Louis W. Bunnell, Appellants, School District et al., Defendants
• Court: Missouri Supreme Court

85 S.W.2d 17

337 Mo. 33

Cora Belle Davis et al. v. Joseph H. Cook and Louis W. Bunnell, Appellants, School District et al., Defendants

Supreme Court of Missouri

July 9, 1935

Rehearing Denied July 9, 1935.

Appeal from Grundy Circuit Court; Hon. A. G. Knight, Judge Opinion filed at September Term, 1934, April 17, 1935; motion for rehearing filed; motion overruled at May Term, July 9 1935.

Reversed and remanded (with directions).

Rex H. Moore and Platt Hubbell for Louis W. Bunnell.

(1) In 1924, at the time of said marriage, the following section of the Missouri statute was in full force and effect: "Section 510. Will of femme sole revoked by marriage. -- A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage. (R. S. 1909, sec. 540.)" R. S. 1919, p. 338. In joining her hand in matrimony, said testatrix burned her will. Barnett v. Bellows, 287 S.W. 604, 315 Mo. 1100. Afterwards, and on March 5, A. D. 1927, said Section 510 was repealed. Laws 1927, p. 98. The repealing statute of 1927, cannot be construed to prevent Section 510 from applying to the marriage in 1924, which construction would make the repealing statute unconstitutional and in violation of Section 15, Article II, Constitution of Missouri, providing that no law "retrospective in its operation" can be passed by the General Assembly. R. S. 1929, p. 66; Leete v. Bank of St. Louis, 141 Mo. 583; 15 Mo. Stat. Ann. 307; Vanata v. Johnson, 170 Mo. 274; 6 R. C. L. 315, sec. 302. (2) The marriage contract is void as to the wife, for the reason that it is without consideration. King v. King, 184 Mo. 108; Mowser v. Mowser, 87 Mo. 441. To bar the marital rights of the wife, or to bind her by marriage contract, the antenuptial contract must contain the elements provided by statute. R. S. 1929, sec. 334. Many Missouri decisions illustrate the proposition that as to the wife this marriage contract was void: Coulter v. Lyda, 102 Mo.App. 413, 76 S.W. 720; Moran v. Stewart, 173 Mo. 217, 73 S.W. 177, Id., 246 Mo. 462, 151 S.W. 439; Reger v. Reger, 316 Mo. 1333, 293 S.W. 424. (3) Since the wife was not bound by this marriage contract, and since this marriage contract was void if invoked against her, it is void when invoked against the husband, Louis W. Bunnell. "The contract is clearly void, and, so being, furnished no basis for the present action." Hudson v. Browning, 264 Mo. 69, 174 S.W. 393; Huttig v. Brennan, 41 S.W.2d 1062; 6 R. C. L. 677, sec. 84; 60 A. L. R. 221; Halloway v. Creamery Co., 286 Mo. 499, 228 S.W. 451.

Woodruff & Woodruff for respondent.

(1) The antenuptial contract is not void but is valid and constitutes a contract binding on both parties. Logan v. Phillips, 18 Mo. 22; Johnson v. Johnson's Admr., 23 Mo. 561; Farris v. Coleman, 103 Mo. 352, 15 S.W. 767; Wrench v. Robertson, 175 S.W. 587; Broyles v. Magee, 71 S.W.2d 149; McBreen v. McBreen, 154 Mo. 323. (2) There is no lack of mutuality. The contract has been performed. Even were one of the considerations void, the contract is supported by a sufficient consideration. It estops the appellant from claiming contrary thereto. Morris v. Donovan, 141 S.W. 428, 159 Mo.App. 401; Martin v. Ray Coal Co., 232 S.W. 149, 288 Mo. 241; Joseph Schlitz Brewing Co. v. Game Co., 229 S.W. 813, 287 Mo. 400; 30 C. J., sec. 192, pp. 631, 632; Sexton v. Ry. Co., 194 S.W. 1082; Schibi v. Miller, 268 S.W. 434; Broyles v. Magee, supra. (3) By recognizing the contract as valid and binding, the appellant is estopped to now deny its validity. 13 C. J., sec. 267; McBreen v. McBreen, supra.

OPINION

Hays, J.

This suit involves the title to a dwelling house and certain lots in the city of Trenton and an eighty-acre farm situate in Grundy County, owned by Carrie Bunnell at the time of her death on May 1, 1931.

The deceased was married three times: first, to a man named Brunnenstuhl, to whom she bore as her sole issue the plaintiff, Cora Belle Davis; next, to a man named Cook, by whom she had no child but who had children by a previous marriage, among them defendant, Joseph Cook; and last, to defendant Louis W. Bunnell.

Prior to this last marriage and on November 1, 1921, said decedent, then a single woman, executed a will. Thereafter and on February 7, 1924, she and said Bunnell entered into an antenuptial contract, and within a few hours thereafter they were united in marriage. Upon the validity and force of this antenuptial contract the case at bar hinges.

The contract begins by reciting that a marriage is shortly to be solemnized between the parties; that said Dr. Louis W. Bunnell, the first party, owns eight and one-half acres of real estate clear, and in his own right, in Trenton, also $ 500 in bonds and $ 1200 in notes and cash; that said Carrie Cook owns clear and in her own right eighty acres of land in Jackson township, Grundy County, also three described lots in Trenton, and notes in the amount of $ 2400. The contract then proceeds:

"Now, therefore, in consideration of said marriage each to the other, and the payment of one dollar by Mrs. Carrie Cook to said first party, it is agreed and hereby contracted that said Dr. Bunnell shall not acquire any right, title or interest or estate in and to said real estate or chattels or personal property of said Mrs. Carrie Cook of which she is seized or possessed above mentioned, and that he shall have no interest, right or claim in her said estate, real or personal, as tenant by the curtesy, or by virtue of statute of distribution or by any law whatsover, so that all her said property shall, in case he survive her, go to and be disposed of in like manner as if she had continued single and unmarried, unless otherwise disposed of by will or deed." For like considerations Mrs. Cook assumed identical obligations with respect to Doctor Bunnell's property and released her dower and homestead therein, etc.

The contract was duly signed and acknowledged by the parties and later filed for record in the recorder's office.

The will was admitted to probate, respondent qualified as executrix and proceeded to administer her mother's estate. Within a year from the time of undertaking such administration the plaintiff brought suit in which she sought a decree declaring the will void under the statute (Sec. 510, R. S. 1919) on the ground that it was revoked by the maker's subsequent marriage to Bunnell. Defendant Bunnell's codefendants were joined as being interested parties under said will. The defendants, other than Bunnell and Cook made default. Defendant Cook filed a demurrer which was overruled, and the case was tried as if he had raised the general issue. The appellant filed his separate answer in which he, too, alleged that the will was revoked by the subsequent marriage. The answer set up a claim of dower and quarantine in the lands in suit, prayed a determination of title to the land and partition thereof.

Respondent by reply set up said antenuptial contract in bar; alleged the performance thereof and recognition of its validity by the parties thereto; and that by reason of the contract, the acts and conduct of Bunnell, he is precluded and estopped from claiming any right, title or interest in said property.

The judgment below determined that the will was revoked by the subsequent marriage of the maker and remains a nullity regardless of its having been admitted to probate. And, as both the appellant and the respondent are acquiescing in the decision in that respect, that question need not be considered. The judgment determined that the plaintiff was the sole owner of all property in fee. Defendant Bunnell alone appealed.

The pleadings in the cause make it a proceeding in equity. It being such, it is here for trial anew and in reviewing it we disregard questioned rulings on the admission and rejection of testimony and consider such evidence as is competent, relevant and material, whether admitted or rejected.

The evidence touching additional and essential facts is brief. At the time of entering into said marriage Doctor Bunnell was in his sixty-fifth year and Mrs. Cook was some seven years younger. She had, as already stated, one child, the respondent, then a married woman; he had three children -- ages not stated -- all of whom, it may reasonably be inferred, had reached their maturity. Her property exceeded his in extent and perhaps in value. It seems that for some reason not shown his children had manifested some hostility toward Mrs. Cook before the marriage, for the Doctor in testifying said that his children had interfered with her before the marriage and that he and she "went into the (antenuptial) contract so that (his children's meddling with the affairs of himself and wife) could never happen again;" that they went into it "at her request and I agreed with her exactly."

At once upon their marriage they went into the occupancy of her dwelling house, the Trenton property in suit, where they continued to live together in the marital relation down to her death. This piece of property had a rental value of $ 15 a month. No rent, however, was paid or charged. Doctor Bunnell paid the grocery bills and their other living expenses. He paid the taxes on his property and collected the rents thereof. The wife paid the taxes on her property and received the rents of her farm. They kept separate bank accounts. At one time she at his request made two small loans for him. At the time of her death she owned the property in suit and $ 3600 in personal property. This is the substance of the testimony given by appellant Bunnell in relation to matters previous to the death of his wife. His counsel, however, in putting on his defense, introduced a warranty deed made by the appellant, in the execution of which his wife joined without any specific reason...