Egger v. Egger

• Decision Date: 04 January 1910
• Citation: 123 S.W. 928,225 Mo. 116
• Parties: KATHARINA EGGER v. JOHN B. EGGER, Executor of Will of FREDOLIN EGGER, et al., Appellants
• Court: Missouri Supreme Court

123 S.W. 928

225 Mo. 116

KATHARINA EGGER v. JOHN B. EGGER, Executor of Will of FREDOLIN EGGER, et al., Appellants

Supreme Court of Missouri, First Division

January 4, 1910

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Affirmed.

Barbour & McDavid and Cole, Burnett & Moore for appellants.

(1) When in the year 1898 the plaintiff contracted with her husband, Fredolin Egger, that in lieu of what she would be entitled to take of his estate as his wife upon his death under the statute, he should provide by his will that the payment of $ 75 per month should be secured to her so long as she should survive him, she had the legal right and power to enter into such contract with him and thereby make it a valid and legal contract enforceable against either of the parties thereto, their heirs and legal representatives. R. S. 1899 sec. 4335; O'Day v. Meadows, 194 Mo. 588; Rice, Stix & Co. v. Sally, 176 Mo. 107; Donavan & Boyd v. Griffith, 215 Mo. 149. The business divisibility of husband and wife, now existing in Missouri as contractual integers (where at common law and in this State prior to the Married Woman's Acts, they were one), is complete. Clay v. Mayer, 183 Mo. 158; Bank v Hageluken, 165 Mo. 451; Schubach v. McDonald, 179 Mo. 189. (2) The contract was based upon a good, sufficient and lawful consideration, and the facts relating to such contract being conceded and undisputed the court committed error in finding and adjudging that there was no consideration for said contract. Forbs v. Railroad, 107 Mo.App. 673; Fullerton v. Schloss, 104 Mo.App. 195; Woodruff v. Woodruff, 90 S.W. 266; Wood v. Broadley, 76 Mo. 23; Moss v. Green, 41 Mo. 389; Campbell v. Van Housten, 44 Mo.App. 231; Penn v. Brashear, 65 Mo.App. 24; German v. Gilbert, 83 Mo.App. 411. A cancellation of an oral contract is a good consideration for a substituted written contract, and one agreement may be substituted for another. Leonard v. Railroad, 54 Mo.App. 293; Pottery Co. v. Folckemer, 131 Mo.App. 106; Nordyke v. Kehlor, 155 Mo. 643. The quality, and not the quantity, of consideration for a contract, determines its sufficiency; the least injury or detriment suffered by the promisee or a third person, or the least benefit or advantage to the promisor, being sufficient to support the contract. Columbia Lamp Co. v. Am. Elec. Mfg. Co., 64 Mo.App. 115; 1 Parsons on Contracts (7 Ed.), p. 465; Ib., p. 477. (3) The money, $ 290, had by plaintiff at her marriage with Fredolin Egger, deceased, thereby became the money of her husband. The $ 1.140.68 afterwards acquired by her and reduced to his possession and after his death paid out of his estate at the time she ratified her contract of 1898 by deed, was a good and valid consideration for the deed and the contract so ratified. Benne v. Schnecks, 100 Mo. 256; Roberts v. Walker, 82 Mo. 200. (4) The attempted election of plaintiff is not a statutory election, that is, it, as made and in the case made, cannot be based or predicated upon a right conferred upon her by any statute of the State relating to election by a widow. Right of election is given in certain cases by sections 2939, 2940, 2941, 2944, 2948, and 2949, R. S. 1899. Saunders v. Saunders, 144 Mo. 488; 4 Words and Phrases, p. 3820; 1 Pomeroy's Equity Jur., pp. 844, 845, sec. 507; Welch v. Anderson, 28 Mo. 299; Wash v. Wash, 189 Mo. 359. (5) Plaintiff is estopped by her contract, deed and acts in pais to claim dower in the personal estate of her husband. Unquestionably after a married woman becomes discovert, she stands before the law just as any other person sui juris, and must be held to answer to the same law of estoppel, the same accountability. Harrison v. McReynolds, 183 Mo. 533; Bush v. Peirsol, 183 Mo. 505; Leavy v. Cook, 171 Mo. 302; 16 Cyc., 679; Kesner v. Trigg, 98 U.S. 75; Meddis v. Kenney, 176 Mo. 202; Nelson v. Hirsh, 102 Mo.App. 498. The general rule is that the widow's election between her legal rights as widow and those given her by her husband's will, if made by her with knowledge of the facts necessary to an intelligent choice and she makes her choice without any fraud, misrepresentation, duress or inequitable contrivance by others interested in the estate, is binding upon her and cannot be revoked at her pleasure, merely because on after-thought she prefers the provision she had once rejected. Dean v. Hart, 62 Ala. 308; Walker v. Upson, 74 Conn. 128; Gibbon v. Gibbon, 40 Ga. 562; Wilson v. Wilson, 145 Ind. 659; In re Franke's Estate, 97 Iowa 704; Reville v. Dubach, 60 Kan. 572; Grider v. Eubanks, 12 Bush 510; Dow v. Dow, 36 Me. 211; Adams v. Adams, 5 Met. (Mass.) 277; Koster v. Gellen, 124 Mich. 149; Fairchild v. Marshall, 42 Minn. 14; Kaes v. Gross, 92 Mo. 647; Spalding v. Herschfield, 15 Mon. 253; Schweitzer v. Bonn, 38 A. (N. J.) 302; Katz v. Schnaier, 87 Hun (N. Y.) 343. (6) The action for dower in certain land did not operate by reason of the judgment therein obtained as res adjudicata in a subsequent proceeding in the probate court against the executor of her husband's will for an order of distribution of the personal estate of her deceased husband. 16 Cyc., p. 712; Ib., p. 713. To constitute a judgment in a former suit, a barrier in another suit, four conditions must co-exist, identity of the thing sued for, identity of the cause of action, identity of parties to the action, and identity of the quality of the persons for or against whom the claim is made. Winham v. Kline, 77 Mo.App. 36; Pickel Stone Co. v. Wall, 108 Mo.App. 500; Perkins v. Goddin, 111 Mo.App. 429. But the matter does not end with the foregoing. Personal property passes to the executor or administrator and he alone (under the direction of the court) and not the heir, has the right of dominion over it, unless the probate court shall, by order, dispense with any administration. McMillan v. Wacker, 57 Mo.App. 220; Smith v. Denny, 37 Mo. 20; Hounsmon v. Moore, 18 Mo.App. 406; Griswold v. Mattix, 21 Mo.App. 282; 41 Mo.App. 546; 58 Mo.App. 408; 64 Mo.App. 270; Hellman v. Wellenkamp, 71 Mo. 407; Green v. Tittman, 124 Mo. 372; Grand Lodge v. Dister, 77 Mo.App. 608; Tye v. Tye, 88 Mo.App. 330; Perkins v. Goddin, 111 Mo.App. 429. If the suit as to dower in the land was the same cause of action as here, then plaintiff's contention as to res adjudicata defeats her present action. Green v. Von der Ahe, 36 Mo.App. 394. "The form of action pursued is immaterial." Moran v. Plankinton, 64 Mo. 337; Railroad v. Traube, 59 Mo. 355; Koenig v. Morrison, 44 Mo.App. 414; Hoffman v. Hoffman, 126 Mo. 497; Flaherty v. Taylor, 35 Mo. 451.

E. P. Mann and H. W. Timmonds for respondent.

(1) The plaintiff, under the law, is entitled to dower in the personal estate of Fredolin Egger, in all the property that he owned at the time of his death equal to a child's part. Sec. 2937, R. S. 1899. The dower interest of the widow in the personal estate of her deceased husband is diminished by the amount turned over to her by the administrator, or executor, for her support, and this interest is expressly called dower in personal estate. Sec. 108, R. S. 1899. This right in the personal property, as well as the real estate is considered and treated as dower. Hoyt v. Davis, 21 Mo.App. 240; Haniphan v. Long, 70 Mo.App. 352; sec. 4602, R. S. 1899; Lilly v. Menke, 143 Mo. 147. The wife had no interest in the husband's personal property before his death, and he had the right to sell and dispose of his personalty free from any claim or interest of the wife. The will did not pass the title to the personal property before the death of Fredolin Egger. A will only becomes operative after the death of the testator. After the death of Fredolin Egger, the law vested plaintiff with a dower interest in the personal property of which he died possessed, which right is superior to any right that the husband has to dispose of it by will, for it is expressly provided by the Statute of Wills that he can only make a will subject to her right. And it has been so repeatedly held by this court. Lilly v. Menke, 143 Mo. 147; Spratt v. Lawson, 176 Mo. 175; Rice v. Waddill, 168 Mo. 99. (2) Sections 2948 and 2949 entitle a widow to renounce the will of her husband within twelve months after the proof of the will, and the widow is entitled to make such renunciation, notwithstanding no real estate is passed to her by the will. Bretz v. Matney, 60 Mo. 444; Register v. Hensley, 70 Mo. 189; Dougherty v. Barnes, 64 Mo. 161; Spratt v. Lawson, 176 Mo. 175; Farris v. Coleman, 103 Mo. 352. (3) The defense of a verbal post-nuptial contract is not sustained by the testimony. No such contract is in evidence. A marriage contract must be in writing, acknowledged or proven by one subscribing witness. Sec. 4324, R. S. 1899; Mowser v. Mowser, 87 Mo. 437; Moran v. Stewart, 173 Mo. 214. (4) The post-nuptial contract in writing is a nullity for want of a consideration. It is not a legal jointure, because legal jointures can only be made of real estate, and cannot be short of an estate for life. Saunders v. Saunders, 144 Mo. 482; Moran v. Stewart, 173 Mo. 214. This contract amounts to nothing more than an agreement to make a will. The husband parted with nothing. The wife got nothing. The wife could not have compelled the husband to comply with the agreement; neither could she have maintained an action for damages for its breach. So that it is quite certain that it is neither a legal nor equitable jointure. Moran v. Stewart, 173 Mo. 214; Spratt v. Lawson, 176 Mo. 175; King v. King, 184 Mo. 99; Mowser v. Mowser, 87 Mo. 440; Johnson v. Johnson, 23 Mo. 561; Logan v. Phillips, 18 Mo. 23. (5) Where the widow is not given any real estate by the will, the statute providing for renunciation does not apply. It is certainly clear that the law entitles the widow to certain...