Hafner v. Miller
| Decision Date | 11 June 1923 |
| Citation | 252 S.W. 722,299 Mo. 214 |
| Parties | MARY A. HAFNER et al., Appellants, v. GEORGE D. MILLER. GEORGE D. MILLER v. MARY A. HAFNER et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.
Affirmed.
Albert C. Davis and Lew R. Thomason for appellants.
(1) Marriage is a civil contract by which a man and woman reciprocally engaged to live with each other during their joint lives, and to discharge the duties towards each other imposed by law on the relation of husband and wife. It does not mean a temporary agreement to dwell together for a time for the gratification of sexual desires, but it is essential that the contract be entered into with a view of its continuance through life. Banks v. Gailbreath, 149 Mo. 529. The presumption of a common-law marriage from the contract of the parties is a rebuttable presumption, and an instruction which ignores a written contract in which they both hold themselves out as unmarried, making the presumption conclusive, is erroneous. Passgile v. Wood, 63 Mo 513; Adair v. Mitte, 156 Mo. 499. To establish a valid common-law marriage there must be not only reputation and cohabitation as a sequence thereof, but a present contract through words by which the man agrees to take the woman as his wife and the woman agrees to take the man as her husband. Tooper v. Percy, 197 Mo. 532; Bishop v Brittain Inv. Co., 229 Mo. 700. The presumption of a common-law marriage is overcome when it is established that the relation was in its inception illicit. Imboden v. Trust Co., 111 Mo.App. 235; Williams v. Williams, 46 Wis. 464; Reading First Ins. Co.'s Appeal, 113 Pa. St. 104; Hesseltin v. McLaughlin, 4 Wash. 570; Klippel v. Klippel, 41 Col. 40. While a subsequent ceremonial marriage is not inconsistent with a prior common-law marriage, still the solemnization of a marriage ceremony is strong admission against the alleged prior marriage. Commonwealth v. Stump, 53 Pa. St. 132; Imboden v. Trust Co., 111 Mo.App. 234; Bishop v. Brittain Inv. Co., 229 Mo. 731. (2) No particular form of words is required to constitute an antenuptial agreement or marriage settlement. Any language which clearly shows an intention to create a marriage settlement is sufficient. It may be in the form of a bond or in the form of a will. Antenuptial contracts are to be liberally construed so as to carry into effect the intention of the parties. While the law prescribes the rights of husband and wife in the property of each other, they may nevertheless, by antenuptial agreement, exclude the law in this respect, and determine for themselves their respective rights in each other's property. The Statute of Frauds applies only to executory contracts and has no application to contracts that have been executed or performed on the one side. Richardson v. Champnin, 143 Mo. 538; Smith v. Davis, 90 Mo.App. 533; Bless v. Jenkins, 129 Mo. 671; McGinis v. McGinis, 274 Mo. 297; Blanton v. Knox, 3 Mo. 343; Self v. Cordell, 45 Mo. 48; McConnell v. Brayner, 63 Mo. 461. (3) Equity will not suffer the intentions of the parties to be defeated by the very act designed to give effect to such contract. Story on Equity, sec. 1370. The weight and convincing character of testimony does not depend so much upon the number of witnesses testifying as upon the intelligence, honesty and veracity of those who testify, and a parol agreement may be established by the uncorroborated testimony of one witness. Novack v. Berger, 133 Mo. 24; Merrill v. Thompson, 252 Mo. 714; Collins v. Haswell, 219 Mo. 311. (4) Marriage is a sufficient consideration to support a contract. Marriage being in its nature permanent and being the most important of all civil relations, and is the highest and most valuable consideration, the law will not permit the inducements which led up to it to be disturbed. Bank v. Read, 131 Mo. 533; Welsh v. Mann, 193 Mo. 315. An agreement to make a will in a particular way is valid if supported by a sufficient consideration, and although the contract may be oral, if executed or performed on the one side, is enforceable. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 42 Mo. 37; Sutton v. Hayden, 62 Mo. 401; Sharkey v. McDermot, 91 Mo. 647. Where a will is made upon a valuable consideration the disposition is no longer in the nature of a gift gratuitous. It is then irrevocable and an antenuptial contract may be made the basis for the testamentary disposition of a contracting spouse. Cole v. Society, 64 N.H. 445; Crofeet v. Layton, 68 Conn. 91; Teske v. Dittberner, 70 Neb. 544. And where one contracts upon a valuable consideration to execute a will after a certain tenor, the agreement is binding after his death and may be specifically enforced. Gould v. Mansfield, 103 Mass. 408; Bolman v. Oreshall, 80 Ala. 451; Austin v. Kuehn, 211 Ill. 13.
James F. Conran for respondent.
(1) Respondent, being the widower of testatrix, under the laws had a right to elect to take statutory dower in her estate she having died without any child or other descendant in being capable of inheriting, and the wife, by her will, could not preclude him from such dower. R. S. 1919, sec. 320; O'Brien v. Ash, 169 Mo. 283; Spurlock v. Burnett, 183 Mo. 116; Egger v. Egger, 225 Mo. 116; Waters v. Herboth, 178 Mo. 166. (2) The evidence offered by appellants does not prove any contract in consideration of marriage at all, but a mere desire to find out what will please the respondent. Asbury v. Hitchlin, 181 Mo. 676; Walker v. Bohannon, 203 Mo. 136; Burt v. McKibben, 188 S.W. 187. (3) The contract as pleaded was not proved or testified to by any witness. There was no evidence of any agreement by Mrs. Miller to make a will, or of Mr. Miller to take under a will. (4) A mere casual conversation is not a contract. Lamb v. Lamb, 46 N.Y.S. 219; Chapman v. Cherry, 243 Mo. 375; Hirsch & Sons v. Paragould R. Co., 148 Mo.App. 173; Lungstrass v. German Ins. Co., 48 Mo. 201; Elliott on Contracts, secs. 25-26; 13 Corpus Juris, pp. 265-66; Lucky v. Railroad Co., 133 Mo.App. 589; Sutter v. Raeder, 149 Mo. 297; Green v. Cole, 103 Mo. 701; 9 Cyc. 241. (5) The alleged antenuptial contract as pleaded by appellants falls within the Statute of Frauds and is void. 10 Am. Law Review, 333; Lloyd v. Fulton, 91 U.S. 479; Hackney v. Hackney, 27 Tenn. 452; Bradley v. Saddler, 54 Ga. 681; Manning v. Riley, 52 N.J.Eq. 39; Chase v. Fritz, 132 Mass. 359; Henry v. Henry, 27 Ohio St. 121; Mallory v. Mallory, 92 Ky. 684. (6) An agreement by an intended spouse in consideration of marriage to renounce the interest in the estate of the other spouse to which he or she would be entitled as the survivor, falls within the provision of the Statute of Frauds requiring contracts in consideration of marriage to be in writing. 25 R. C. L. 448, sec. 20; McAnulty v. McAnulty, 120 Ill. 26; Frazer v. Andrews, 134 Iowa 621; Rowell v. Boleer, 142 Wis. 304, 90 A. S. R. 510; Mallory v. Mallory, 92 Ky. 316; White v. Giblow, 154 Mass. 593; Watkins v. Watkins, 82 N.J.Eq. 483; Dienst v. Dienst, 175 Mich. 724. (7) Marriage has never been regarded as sufficient part performance of an antenuptial parol contract to withdraw the contract from the operation of the statute. This is the law established by an unbroken line of decisions from the enactment of the Statute of Frauds to the present time. Browne on Statute of Frauds (5 Ed.) sec. 459; Fry on Specific Performance, pp. 285-6; Wood on Statute of Frauds, sec. 174; 1 Reed on Statute of Frauds, sec. 182; 25 R. C. L. 451, sec. 25. (8) The ground on which the courts hold that performance takes a contract out of the purview of the Statute of Frauds is that when one of two contracting parties has been induced or allowed by the other to alter his position on the faith of the contract it would be a fraud in the other to set up the legal invalidity of the contract. And the act of performance must be in addition to marriage. Caton v. Caton, L. R. 1 Ch. 137; 5 Pomeroy, Equitable Jurisprudence, sec. 2239; Walker v. Bohannon, 243 Mo. 119; Collins v. Harrell, 219 Mo. 236. (9) But the appellants attempt to twist the alleged contract as pleaded into a promise on the part of the intended wife to make a will, a violent twist indeed, but even if she contracted to make a will, and made one, it would not be such past performance as would take the contract out of the operation of the Statute of Frauds. Caton v. Caton, L. R. 1 Ch. 137; Dienst v. Dienst, 175 Mich. 724; In re Edwall's Estate, 75 Wash. 391; Gould v. Mansfield, 103 Mass. 408; Hughes v. Hughes, 193 P. 144; Swash v. Sharpstein, 14 Wash. 426; McClanahan v. McClanahan, 72 Wash. 138. But there is not a word of evidence of any offer or agreement on the part of the wife to make a will, or of Miller to accept a bequest in a will. (10) Appellants pleaded an alleged contract in consideration of marriage, between respondent and testatrix, as a bar to respondent's right to take statutory dower, and fixed the date of the alleged contract as on the Saturday before September 14, 1920. If respondent and Frances Fitzgibbons Miller were man and wife prior to that date, and continued to remain such, there would be no consideration for the alleged contract and respondent had a right to statutory dower. (11) A common-law marriage, entered into in Missouri prior to September 14, 1920, is a valid marriage. Cargile v. Wood, 63 Mo. 512; Tapper v. Perry, 80 Mo.App. 638; Ashferd v. Life Ins. Co., 80 Mo.App. 638. Marriage, being a civil contract, may be proved as other contracts are capable of proof. The evidence in this case meets the most stringent requirements of our courts and proves a common-law marriage between Frances Fitzgibbons, then a widow, and George D. Miller, in 1910, which continued uninterrupted to the time of...
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