Hafner v. Miller

• Decision Date: 11 June 1923
• Docket Number: No. 23498.,No. 23483.,23483.,23498.
• Citation: 299 Mo. 214,252 S.W. 722
• Parties: HAFNER et al. v. MILLER. MILLER v. HAFNER et at.
• Court: Missouri Supreme Court

252 S.W. 722

299 Mo. 214

HAFNER et al. v. MILLER.

MILLER v. HAFNER et at.

No. 23483.

No. 23498.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action to quiet title by Mary A. Hafner and others against George D. Miller, and action by George D. Miller for partition of real estate against Mary A. Hafner and others, consolidated for trial. Judgment in the first action was rendered for plaintiffs, and in the second for defendants, and, from orders granting new trials, they appeal. Affirmed.

Albert C. Davis and Lew R. Thomason, both of St. Louis, for appellants.

James F. Conran, of St. Louis, for respondent.

Statement.

RAILEY, C.

The two causes above mentioned were by mutual consent consolidated in the circuit court of the city of St. Louis, Mo., and tried as one case; and occupy the same position in this court. Case numbered 23483 in this court was brought by Mary A. Hafner to quiet title to certain real estate located in the city of St. Louis, and said George D. Miller was made defendant therein. The above suit was brought for the February term, 1921, of said circuit court. At the April term, 1921, said George D. Miller, as plaintiff brought, in said circuit court, against said Mary A. Hafner et al., as defendants, the above case numbered 23498, which had for its purpose the partition of the same real estate described in cause No. 23483, supra.

Frances Fitzgibbons Miller was the feesimple owner of said real estate and was the common source of title. She died on September 18, 1920, in the city of St. Louis aforesaid. Her will was duly probated in said city, and, by the terms of same, she bequeathed to her husband, George D. Miller, one-third of her cash and securities. She gave to one nephew and two nieces each $5, and divided the remainder of the personal property equally between Mary A. Hafner, her sister, and George W. Hardesty, her father. The real estate in controversy was devised to appellant Mary A. Hafner on condition that she care for her father, George W. Hardesty, during his life. The testatrix left no child or other descendant in being capable of inheriting.

On December 15, 1920, the widower, George D. Miller, elected to take one-half of the real and personal property of his deceased wife, subject to the payment of her debts, in lieu of the provision made for him in her will, which election, duly acknowledged,,Was filed in the probate court of said city on January 15, 1921, and duly filed for record in the recorder's office in the city of St. Louis aforesaid, on March 2, 1921, and notice of same served on said Mary A. Hafner and George W. Hardesty.

To preclude respondent Miller from electing to take statutory dower, appellants pleaded an alleged antenuptial contract, between said George D. Miller and testatrix, as follows:

"That said bequest to said George D. Miller, in her last will and testament as aforesaid, was made under and by virtue of an antenuptial contract entered into between said Frances Fitzgibbons Miller and the said George D. Miller prior to the marriage between them, and in consideration of said Frances Fitzgibbons Miller marrying the said defendant George D. Miller, he, the defendant George D. Miller, agreed to take as his interest in the estate of his wife to be one-third of the cash and securities of which she might be seized."

The appellants allege performance on the part of Frances Fitzgibbons Miller, as follows:

"That the said Frances Fitzgibbons Miller when on her deathbed carried out all the terms and agreements as aforesaid which she made with the said defendant George D. Miller, and thereafter, on the 14th day of September, 1920, married him, and by her last will and testament, made on the same day, bequeathed the said defendant George D. Miller the amount of cash and securities agreed upon between the defendant George D. Miller and said Frances Fitzgibbons Miller prior to the marriage aforesaid, and prior to the execution aforesaid."

The respondent denies in toto the existence of any such antenuptial contract between his wife and himself.

In September, 1920, testatrix was sick and, on the 14th of said month, sent respondent, George D. Miller, and her sister Mary A. Hefner, one of the appellants, to procure a marriage license, and a justice of the peace to marry herself and George D. Miller. She also requested Mary A. Hefner to get George N. Cooper to draw her will. Lida Cooper came instead of George, and took the notes for the will. On the same day justice Rice performed a civil ceremony of marriage between George D. Miller and testatrix. Later, on the same day, `the will of Frances Fitzgibbons Miller was executed. Testatrix, on the same day, was taken to the hospital, operated on, and died from the result of the operation on September 18, 1020.

To prove the alleged antenuptial contract, the respondents offered Mary A. Hefner, the chief beneficiary, who testified as follows: That on Saturday, September 11, she heard Mrs. Fitzgibbons say to Mr. Miller, "If we get married will you be satisfied with one-third of my cash and securities?" and Mr. Miller said, "Yes"; that on September 14, Mrs. Miller sent her and Mr. Miller for a marriage license and for Cooper to write a will; that after Miss Cooper had taken the notes for the will Mr. Miller asked Miss Cooper how it was written up, and she explained it to him, and Mrs. Miller said, "George, thought the cash would suit you better than any one else, so I made you one-third cash and securities," and he said, "I" am satisfied with whatever you do."

On cross-examination, Mrs. Hefner said she overheard the first conversation from an adjoining room, where Mrs. Miller was lying on the bed and Miller sitting thereon, where they could not see her, and no one else was present. She said that the first she learned of any intention of marriage between Mr. and Mrs. Miller was when Mrs. Miller asked her to go for a license September 14; that she knew Mrs. Miller had never said that she would marry Miller.

Beneficiary George W. Hardesty testified that at some time, he did not know when, probably 10 days before her death, while he was in the adjoining room, he heard Mrs. Miller say, "George, if I marry you and give you one-third of my cash and securities, will you be satisfied?" and Mr. Miller said, "Yes."

On this evidence the appellants hang their contract.

The statute of frauds was interposed as a defense, and objection made to oral evidence to prove any contract in consideration of marriage, or any oral contract, and objection was made to any evidence to prove any contract in consideration of marriage, not in writing and signed as required by the statute. The court received this evidence over respondent's objection, subject to a later ruling, and at the close of the evidence ruled in favor of its admission, to which ruling respondent duly excepted.

Respondent then having denied the existence of this alleged antenuptial contract, introduced evidence to prove a common-law marriage between himself and Frances Fitzgibbons, as having existed since 1910, when he and she went to live together as man and wife on Cote-Brilliante avenue; that they had lived together as man and wife ever since that date, even to the time of the death of Frances Fitzgibbons Miller; that they had introduced each other as man and wife, had occupied the same home during all said time, and the same room and bed; that they were received into his family as man and wife, and his nephew called her "Aunt Fanny"; that she so signed herself when sending presents to his nephew and niece; that each took out one or more insurance policies in favor of the other, respondent designating her as his wife, and she designating him as her husband, as early as 1912 and 1913; that they had lived most of this time in the lower part of the city where Mrs. Miller kept roomers a part of the time; that respondent worked all the time either in delivering ice or in delivering papers; that the ceremonial marriage was the wish of Mrs. Miller to be married as other people were.

Appellants, being father and sister of the deceased, sought to wring from respondent's witnesses an admission that the respondent and decedent were at all times prostitutes, engaged in running bawdyhouses and, by questioning the place of residence, and the district in which they resided, calling it the "red-light district," appellants draw a conclusion from their own questions that respondent and decedent were running bawdyhouses. From the fact that they were arrested in 1917, accused of keeping a house of ill fame, appellants claim they were not man and wife, but maintained towards each other a meretricious relation.

Respondent's sister and the many friends of both George D. Miller and Frances Fitzgibbons Miller bore testimony to the marital relation of the couple; to the high esteem in which they were held, and of their good reputation.

Even appellants did not deny that Frances Fitzgibbons Miller was a good woman.

The court, having decided in favor of appellants, later, upon reading the evidence, was convinced that it had committed error, and that the legal evidence would not sustain the findings. Accordingly, a new trial was granted respondent In both cases, on the ground that the finding was against the evidence.

Opinion.

In case numbered 23483, brought by Mary A. Hafner et al. T. George D. Miller, under section 1970, R. S. 1919, to quiet and determine the title to real estate in controversy, no affirmative equitable relief was asked by either party, and hence the action was purely one at law in which the duty of passing on the weight of the evidence devolved on the trial court. State ex rel. Am. Cent. Ins. Co. v. Reynolds, 289 Mo. loc. cit. 400, and following, 232 S. W. loc. cit. 688, 689; Colburn v. Krenning (Mo. Sup.) 220 S. W. loc. cit. 937. The record and pleadings in case numbered 23498, brought by respondent George...