DiLlenberger v. Wrisberg

• Decision Date: 14 June 1881
• Citation: 10 Mo.App. 465
• Parties: MARIA K. DILLENBERGER, Appellant, v. WILLIAM C. WRISBERG ET AL., Respondents.
• Court: Missouri Court of Appeals

10 Mo.App. 465

MARIA K. DILLENBERGER, Appellant,

v.WILLIAM C. WRISBERG ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 14, 1881.

1. During the joint lives of husband and wife, the former is entitled to the rents and profits of the freehold estates of which the wife was seized at the time of her marriage.

2. The Married Woman's Act of 1875, does not affect the husband's right to the proceeds of the wife's realty.

3. To charge him as her trustee in the collection of the rents of her realty, a clear intention on his part to collect and hold them as her trustee must be shown.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

FINKELNBURG & RASSIEUR, for the appellant, cited: Tillman v. Tillman, 50 Mo. 90; Tennison v. Tennison, 46 Mo. 77.

H. A. MCGINDLEY, for the respondents, cited: Clark v. Rynex, 53 Mo. 380; Silver v. Sumner, 61 Mo. 253; Terry v. Wilson, 63 Mo. 493; Boyce v. Mayer, 17 Mo. 47; Woodford v. Stephens, 51 Mo. 443.BAKEWELL, J., delivered the opinion of the court.

The plaintiff, who is the widow of William Dillenberger, deceased, presented for allowance in the Probate Court, a claim against his estate for a balance of $3,330, alleged to have been collected by deceased in his lifetime, of rents of her property. On trial anew in the Circuit Court, there was a finding and judgment for defendant.

By stipulation of the parties, it was admitted that William Dillenberger died October 4, 1877; that plaintiff holds the real estate from which the rents in question issued, under the will of one Rhem; that the account filed is, in the aggregate, a copy of the accounts of said rents in the book referred to by the witnesses. And it was agreed that the case be submitted on this admission, and the agreed testimony of plaintiff and William Wrisberg filed with the submission, and a copy of Rhem's will.

It was agreed that plaintiff would testify that she was married to Dillenberger in February, 1864, and lived with him till his death; that she acquired the real estate in question before her marriage with Dillenberger, from her former husband, Rhem, by will, to hold for life, remainder to her child by Rhem. The agreed testimony of this witness proceeds, as follows: “Dillenberger collected the rents on this property from the time I married him. I know the amounts he collected, for he, nearly all the time, put the amounts collected in the book. I have got the book at home. I had two step-children living with me. After I married Dillenberger we went to the country. I never got any of the money he collected; he used it all in the business. I don't know that any of the money was used in the family. He collected the money. I never asked him for it. We worked together. I worked more than my husband. The family was always kept together. I kept a big house full of boarders, doing the entire work with my children. We had store-room and bar-room. I attended to all this, and my husband attended to the coal business. I told Dillenberger to collect the rents, as it was no use for both of us to collect them. I was satisfied that he should collect the rents.”

The agreed testimony of Wrisberg is to the effect that, after Dillenberger's death, he found a book containing an account of rents collected of the Rhem estate; the book is now in Mrs. Dillenberger's possession. Mrs. Dillenberger had no children by Dillenberger. Two children of Dillenberger, and two of Mrs. Dillenberger by former husbands, lived with Dillenberger and his wife up to the respective dates of their marriages. The children worked hard for the Dillenbergers in the saloon and in the family, from their sixth year; had only the most common clothing, and were at school only a short time each season....