Hall v. Greenwell

• Decision Date: 16 July 1935
• Parties: H. M. HALL, WIDOWER OF RACHEL ANNIE HALL, DECEASED, APPELLANT, v. S. D. GREENWELL, EXECUTOR OF THE ESTATE OF RACHEL ANNIE HALL, DECEASED, RESPONDENT
• Court: Missouri Court of Appeals

85 S.W.2d 150

231 Mo.App. 1093

H. M. HALL, WIDOWER OF RACHEL ANNIE HALL, DECEASED, APPELLANT, v. S. D. GREENWELL, EXECUTOR OF THE ESTATE OF RACHEL ANNIE HALL, DECEASED, RESPONDENT

Court of Appeals of Missouri, St. Louis

July 16, 1935

Appellant's Motion for a Rehearing Overruled September 10, 1935.

Petition for Writ of Certiorari Denied by Supreme Court November 20 1935.

Appeal from Circuit Court of Montgomery County.--Hon. Edgar B Woolfolk, Judge.

AFFIRMED.

Judgment affirmed.

Claude R. Ball and Gilbert Weiss for appellant.

(1) The contract is void for failure of consideration, is against public policy and testamentary in character, and there was no jointure. Section 334, R. S. 1929; Coulter v. Lyda, 102 Mo.App. 401, l. c. 409, 411, 413; Moran v. Stewart, 173 Mo. 214, l. c. 217, 215; Spratt v. Lawson, 176 Mo. 175; King v. King, 184 Mo. 99, l. c. 106; Mowser v. Mowser, 87 Mo. l. c. 440; Egger v. Egger, 225 Mo. 116; Farris v. Coleman, 103 Mo. 352, l. c. 360; Lowe v. Lowe, 163 Mo.App. 209, l. c. 212, 213, 214; Reger v. Reger, 316 Mo., l. c. 1333. No issue joined and no denial of applicant's right to statutory allowance of $ 400 was filed. No pleading filed by defendant. 31 Cyc., p. 238; State ex rel. v. Henderson, 86 Mo. App., l. c. 488; Berry v. Shackelford, 38 Mo. 392; McMenany case, 307 Mo. 98; Egger case, 225 Mo. 116. Appellant contends that the postnuptial agreement is void and does not bar the rights given him under the statute in his deceased wife's estate. While a woman may make an antenuptial contract with a man, she would then be acting as a femme sole and not as a married woman, who was acting as a quasi femme sole under our Married Woman's Act. Wood case, 288 Mo., l. c. 599. (3) It is the duty of the husband to support his wife. Wood case, supra, l. c. 600; Rudd v. Rudd, 318 Mo., l. c. 941; Reynolds v. Rice, 224 Mo.App. 977. (4) The postnuptial agreement not being a jointure, claimant is entitled to recover and was not and is not precluded from his statutory allowances. Section 336, R. S. 1929. (5) Claimant, widower, was entitled under law to renounce the will and agreement referred to therein and take his statutory allowances and one-half his wife's estate. Broyles v. Magee, 71 S.W.2d, l. c. 153; Hafner v. Miller, 299 Mo., l. c. 227; Estate of Wood, 288 Mo., l. c. 601; Egger v. Egger, 225 Mo. 116; Spurlock v. Burnett, 183 Mo. 524; Waters v. Herboth, 178 Mo. 166; Spratt v. Lawson, 176 Mo. 175; O'Brien v. Ash, 169 Mo. 383; Jones v. McGonigle, 327 Mo., l. c. 467. It is manifest from reading the above authorities, that claimant could not be deprived of his interests in said estate by the statute, except by a voluntary contract--based upon a valid consideration--which could be enforced in court. Hafner v. Miller, 299 Mo., l. c. 227; Rudd v. Rudd, 318 Mo., l. c. 941; Jones v. Jones, 325 Mo., l. c. 1042; Reger v. Reger, 316 Mo., l. c. 1333. (6) The alleged agreement is testamentary in its character and cannot be enforced. Crecelius v. Horst, 89 Mo., l. c. 358. (7) Necessaries for family--wife's property subject and liable. Tabriel v. Mullen, 111 Mo. 119. (8) Contract to live apart, custody of children disposed of--will not be enforced. Jones v. Jones, 325 Mo., l. c. 1042 to 1048. (9) Separation agreement, if made without separation, is against public policy and when made without a present intention to separate is against public policy and invalid. Harrison v. Harrison, 201 Mo.App. 465; Johns v. Johns, 204 Mo.App. 412. (10) Under a postnuptial agreement between husband and wife a provision for support of survivor must be made; if not so provided for, it is against public policy and without consideration. Mowser v. Mowser, 87 Mo., l. c. 440-441. (11) Claims of widower under Section 201, R. S. 1929, for a year's provision and $ 400 are not demands and not required to be classified. Hewitt v. Duncan, 226 Mo. App., l. c. 259. (12) Statement of claimant Hall as to statements of the Greenwells, their attorney, Rosenberger, and Mrs. Hall, is competent evidence. Hughes v. Renshaw, 314 Mo., l. c. 119. (13) There was no meeting of the minds between Hall and wife whatever regarding said agreement. The fraudulent representations made by Abe Greenwell and his attorney to claimant Hall, in obtaining his signature to the alleged agreement, showing that this old man was deceived and imposed on, void the agreement. Nicol v. Young, 68 Mo.App. 488; Wells v. Adams, 88 Mo.App. 215; Dyrssen v. Dyrssen Electric Co., 317 Mo. 221; Green v. Cole, 103 Mo. 70; Huttig v. Brennan, 328 Mo. 471; Moran v. Bank, 223 Mo.App. 848; Rice v. Lammers, 65 S.W.2d, l. c. 154; Kleiner v. Longrader, 75 S.W.2d, l. c. 17; Bank v. Bunton et al., 316 Mo. 1338, l. c. 1350; Bank v. Hall, 129 Mo.App. 291; Muller v. Mutual etc., 68 S.W.2d, l. c. 882-3; Cullerson v. Young, 86 Mo.App. 277. (14) By the agreement that Mrs. Hall was to provide for her own support and Hall likewise to support himself and to make deeds, etc., constitutes no consideration. Estate of Wood, 288 Mo. , l. c. 601. (15) The insanity of Mrs. Hall on October 31, 1921, (date of agreement), and long prior thereto is shown by the witnesses and proven beyond a doubt to be permanent and to have existed at a certain time; then the presumption is that such insanity continues unabated which requires one alleging sanity at a later time to assume the burden of proof. Fendler v. Ray, 331 Mo., l. c. 1095; Crow v. Crow, 73 S.W.2d, l. c. 811-12; Peck, Person's Domestic Relations (2 Ed.), p. 55. Where the court's verdict is against all the evidence, and by mistake or inadvertence overlooked a controlling fact, this court will reverse the judgment. Mier v. Proctor, etc., 81 Mo. App., l. c. 420. An insane wife cannot release her dower right except through judicial proceedings. Section 369, R. S. 1929.

Glover E. Dowell for respondent.

(1) The law is well settled in this State, that no formal pleadings are required in the probate court, or upon trial of the case de novo in the Circuit Court. Fenn v. Reber, 153 Mo.App. 219, 235, 236; Greever v. Barker, 204 Mo.App. 190, 197; Williams v. Gerber, 75 Mo.App. 18 30; Schuchman v. Heath, 38 Mo.App. 280, 282. (2) A man and his wife may contract with each other and sue and be sued by each other the same as other parties. Sec. 2998, R. S. Mo. 1929; Broyles v. Magee, 71 S.W.2d, 149, 153; Montgomery v. Montgomery, 176 Mo. 107; Rice-Stix and Co. v. Sally, 176 Mo.App. 175, 181; Rudd v. Rudd, 318 Mo. 935; Spratt v. Lawson, 176 Mo.App. 175, 181; Cole v. Cole, 231 Mo. 236; O'Day v. Meadows, 194 Mo. 588, 614; Grimes v. Reynolds, 184 Mo. 679. (3) And, such contracts may be made immediately between the husband and wife without the intervention of a trustee. Harrison v. Harrison, 201 Mo.App. 465, 467; Rice-Stix & Co. v. Sally, 176 Mo. 107; Rogers v. Rogers, 265 Mo. 200, 207; Garbut v. Bowling, 81 Mo. 214; Broyles v. Magee, 71 S.W.2d 149, 153. (4) There may be a valid contract of settlement of property between husband and wife without reference to, or intention to, separate. Harrison v. Harrison, 201 Mo.App. 465, 468. (5) Agreements in the nature of postnuptial settlements, having no element of fraud in them, are upheld by the courts. Banner v. Banner, 184 Mo.App. 396, 399; Garbut v. Bowling, 81 Mo. 214. (6) Between the husband and wife no consideration is necessary to support an executed postnuptial settlement. 30 C. G. 637, N. 32. (7) It is the husband's duty to support the wife, even though the wife may be possessed of a separate estate. Reynolds v. Rice, 224 Mo.App. 972, 974; Boldwin v. Fowler, 217 S.W. 637; In re: Estate of Henry Wood, 288 Mo. 588, 600. (8) The relinquishment by the wife of her right to support from her husband, and to relieve him of the discharge of that obligation, is sufficient consideration to support the contract. Semon v. Ilgenfritz, 26 S.W.2d 836, 837; LaRue v. Kempf, 186 Mo.App. 57; Kershner v. Kershner, 202 Mo.App. 238; Harrison v. Harrison, 201 Mo.App. 465, 469; Broyles v. Magee, 71 S.W.2d 149, 153. (9) A legal consideration exists where there has been a benefit to the promisor, or the waiver of some legal right; a loss, trouble, or inconvenience to, or a charge or obligation resting upon, the party to whom the promise is made. 13 C. J. 311, N. 64; Mayers v. Groves Bros. Co., 22 S.W.2d 174, 177; Thompson v. McCune, 63 S.W.2d 41, 43-4; Koch v. Lay, 38 Mo. 147; Waggoner v. Davidson, 189 Mo.App. 345; Nelson v. Diffenderffer, 163 S.W. 271; Pitt v. Gentle, 49 Mo. 74; Hackett v. Dennison, 19 S.W.2d 541; Little Rock Surgical Co. v. Bowers, 42 S.W.2d 367. (10) Likewise, a contract is mutual when obligation rests upon party to do or permit something in consideration of the other party's act or promise, regardless of equality of respective rights. Banner Creamery Co. v. Judy, 47 S.W.2d 129. (11) Any valuable consideration may support an antenuptial contract, and where the parties themselves fixed the consideration, it will be deemed sufficient by the courts, except in cases of fraud, mistake, inadequacy or failure of consideration, or contravention of public policy. 30 C. J. 634; Reaves v. Pierce, 26 S.W.2d 611; Little Rock Surgical Co. v. Bowers, 42 S.W.2d 367; Pawley v. Vogel, 42 Mo. 291. (12) A contract made between husband and wife, even if not valid under the jointure statute, may become valid and binding upon the parties thereto, by reason of their subsequent acts and will be enforced by the courts. Young v. Sangster, 16 S.W.2d 92, 95; Broyles v. Magee, 71 S.W.2d 149, 153; Lionberger v. Davis, 88 Mo. 447. (13) He cannot in equity and good conscience, be permitted to so disregard the covenants of his solemn contract and thereby perpetuate a gross injustice upon the heirs and devisees of his deceased wife. Young v. Sangster, 16 S.W.2d 92, 96; Clark v. Clark, 18 S.W. 2d 77,...