Gordon v. Eans

• Decision Date: 21 March 1887
• Parties: Gordon, Administrator, Appellant, v. Eans
• Court: Missouri Supreme Court

4 S.W. 112

97 Mo. 587

Gordon, Administrator, Appellant, v. Eans

Supreme Court of Missouri

March 21, 1887

Rehearing Denied 97 Mo. 587 at 605.

Appeal from Cole Circuit Court. -- Trial before Hon. Noah M. Givan Judge of the Seventh Judicial Circuit.

Affirmed.

Edwin Silver and A. M. Hough for appellant.

(1) Separate money of the wife paid to the husband or placed to his account by her authority or with her concurrence cannot be recalled by her. Smith's Equity (Am. Ed.) sec. 855; Caton v. Rideout, 1 M. & G. 599; Gardner v Gardner, 1 Giff. 126; Ridout v. Lewis, 1 Atk. 266; Jacobs v. Hesler, 113 Mass. 157; Shirley v. Shirley, 9 Paige, 363; Edelin v. Edelin, 11 Md. 415; Grover v. Radcliff, 53 Md. 496; Courtwright v. Courtwright, 53 Ia. 57; McGlinsey v. McGlinsey, 14 S. & R. (Pa.) 64; Roper v. Roper, 29 Ala. 247; Church v. Jacques, 17 Johns. 549, reversing 1 Johns. Ch. 449; Perry on Trusts, sec. 666. (2) Where money, which is the separate estate of the wife, is placed by her in her husband's hands and afterwards used by him in business, no presumption arises that he received it in trust for her, and in the absence of proof to that effiect the money must be deemed to have been given him with the intention that it should be applied to the use or benefit of either or both of them at his discretion. Jacobs v. Hesler, 113 Mass. 157; Woods v. Brown, 121 Mass. 138; Gardner v. Gardner, 1 Giff. 126. (3) There is no distinction in the application of the above principles between the income arising from the wife's separate estate and the corpus of such estate. Gardner v. Gardner, supra; Church v. Jacques, 17 Johns. 576; Smith's Eq. (Am. Ed.) sec. 855. (4) Respondent in this case, according to her theory of the same, is seeking in the probate court to follow an alleged trust fund through its various transformations during a long series of years. This she cannot do. The probate court has no jurisdiction of such matters of purely equitable cognizance. Butler v. Lawson, 72 Mo. 227; Church v. Robberson, 71 Mo. 249. (5) The administrator was clearly entitled to judgment for the delivery of the deeds which were title papers of W. H. Eans' real estate; and also for the watch which he brought into coverture and which he still possessed at his death.

W. S. Pope also for appellant.

(1) The rights of defendant, if any she had, could only be settled by a suit in equity, brought by her to charge the property in Eans' name as a trust fund. The property must be delivered to Eans' administrator, to be administered upon. (2) The second instruction asked by the plaintiff and refused was correct and should have been given. Roper v. Roper, 29 Ala. 247, and cas. cit.; Hill on Trustees (2 Am. Ed.) 425; Chancey on Husband and Wife, 354; Coats v. Robinson, 10 Mo. 759, and cas. cit. (3) Instructions numbered five and six were erroneously refused. The statute of limitations will run against a married woman about matters pertaining to her separate estate the same as against an unmarried woman. She labors under no disabilities so far as her separate property is concerned. She can sue her husband for misusing, misappropriating or depriving her of the use, occupancy, enjoyment or possession. Roper v. Roper, 29 Ala. 247.

Smith & Krauthoff and Edwards & Davison for respondent.

(1) Any provision in an ante-nuptial contract negativing or excluding the marital rights of the husband creates a separate estate. Morrison v. Thistle, 67 Mo. 596; Boal, Adm'r, v. Morgner, 46 Mo. 48; Tennison v. Tennison, 46 Mo. 77; Clark v. Maguire, 16 Mo. 302. When by the terms of an ante-nuptial contract, the wife is to enjoy her separate property, the legal title to it still vests in the husband at law, but in equity he is her trustee and he must account to her therefor. 2 Bish. Mar. Wom. sec. 116; Blanchard v. Blood, 2 Barb. 352; Strong v. Skinner, 4 Barb. 546; Morey v. Michael, 18 Md. 227; Gover v. Owings, 16 Md. 201. When property is settled on a married woman, before or after marriage, for her separate use, the intention of parties will be effectuated in equity and the wife's interest protected against marital rights of husband. The husband will be held a trustee and the trust will attach upon him and be enforced in the same manner that it would if he were a stranger. 2 Story Eq., sec. 1380; Blanchard v. Blood, 2 Barb. 352; Baldwin v. Carter, 17 Conn. 201. If property is purchased with the money of one, and title taken in another, equity will hold the person in whose name the title is taken as trustee for the other. 2 Story Eq., secs. 1210, 1201. And the rule is the same where the parties are husband and wife. If the husband purchase property with means derived from the separate estate of the wife, she will be deemed the equitable owner thereof. Barron v. Barron, 24 Vt. 375, 390; Brooks v. Dent, 1 Md. Ch. 523-7; Dickinson v. Codwise, 1 Sandf. Ch. 214; Pritchard v. Wallace, 4 Sneed, 405; Pinney v. Fellow, 15 Vt. 525, 538; Tillmann v. Divers, 31 Pa. St. 429; Adams Eq., [Shars. Ed.] 112, note; Seaman v. Cook, 14 Ill. 501; Lathrop v. Gilbert, 2 Stockt. Ch. [N. J.] 344-6; Gover v. Owings, 16 Md. 91, 99; Walker v. Walker, 25 Mo. 367, 375. (2) There was no error in the giving or refusing of instructions. (3) The jurisdiction of the court over the subject-matter of this suit is settled by the decision in Eans' Adm'r v. Eans, 79 Mo. 65.

Edwin Silver and A. M. Hough for appellant, on rehearing.

The supreme courts of Arkansas and Maryland have passed on statutory provisions like the one involved here and decided against the jurisdiction of the probate court. Moss v. Sanfelder, 15 Ark. 381; Taylor v. Bruscup, 27 Md. 219. See also, Homer's Appeal, 35 Conn. 113.

J. L. Smith, L. C. Krauthoff and Edwards & Davison for respondent, on rehearing.

In any case under a statute providing for either the discovery and recovery, or for the discovery alone of the property of a deceased, the ownership of the property must constitute a leading and fundamental inquiry. If the unqualified ownership and title to the property is in the accused, then there is no wrongful conversion or embezzlement of the same -- and this defence must be within the jurisdiction of the probate court. Miller v. Woodward, 8 Mo. 125; Dameron v. Dameron, 19 Mo. 317; Howell v. Howell, 37 Mo. 124; Stewart v. Glenn's Adm'r, 58 Mo. 481; Overton v. McFarland, 15 Mo. 313; Powers v. Blakely's Adm'r, 16 Mo. 441; Hook, Adm'r, v. Dyer, 47 Mo. 215. (2) Probate courts are a branch of the state judiciary exercising a jurisdiction originally found in the chancery and ecclesiastical courts of England and conferred here by statutes upon these courts. Mellier v. Iron County, 29 Mo. 122; Miller v. Woodward, 8 Mo. 169; Titterington v. Hooper, 58 Mo. 593; Plaice v. Calhoun, 59 Mo. 271; Jackson v. Jackson, 4 Mo. 210; Ensworth v. Curd, 68 Mo. 282; Eans' Adm'r v. Eans, 79 Mo. 64.

Ray, J. Norton, C. J., and Black, J., concur. Sherwood, J., dissents. Brace, J., expressing his views separately.

OPINION

Ray, J.

This was a proceeding commenced in the probate court under sections 7, 10 and 11, W. S., p. 85, to discover and recover alleged assets of the estate of deceased. The case once before was in this court (Eans' Adm'r v. Eans, 79 Mo. 53), where it was held that the proceeding in question was available, not only in cases where the assets were concealed or embezzled, but also where they were openly held under claim of title; and that in the latter case the court must try the right of property between the administrator and the claimant. The circuit court on appeal, having dismissed the proceeding for want of jurisdiction in the probate court, its judgment in that behalf, when here before, was reversed and the cause remanded for further proceedings in conformity to the opinion then rendered.

The facts of the case and the contention of the parties fully appear in 79 Mo. supra, to which reference is here had and need not again be re-stated at large; and on a re-trial, as shown by the record, the facts of the case and the contention of the parties are substantially the same as when here before. In the course of that opinion, the court use this language: "In the case at bar, the question between the administrator and the defendant was as to the ownership of the property in controversy. The plaintiff, on the one hand, claimed that permitting the husband to sell said property, receive the money therefor and use the same in his business during the period of time and in the manner indicated by the facts in evidence, was of itself, an appointment and disposition of the property by the wife in favor of the husband, within the meaning of the marriage contract itself. The defendant, on the other hand, denies this position and insists that where there is a marriage contract like this between husband and wife, and no trustee is appointed by the instrument itself, the law makes the husband trustee for the wife and like any other trustee, the husband can reap no benefit to himself by the use of the property; or acquire title thereto by investing the same or its proceeds in his own name without her assent thereto and therefor, and that in point of fact she made no such appointment or disposition, and the property and its proceeds are still rightfully hers. Whether the property has been thus appointed or disposed of, or still remains the separate property of the wife as contemplated by the marriage contract, is at most a question of intent and fact, to be found by the jury or the court, accordingly as the same is tried under all the facts and circumstances in evidence, in connection with the marriage contract itself."

The court then proceeds to decide in that opinion, that the probate court had jurisdiction to hear and determine the cause in the summary manner...