Hart v. Leete

• Decision Date: 23 March 1891
• Citation: 15 S.W. 976,104 Mo. 315
• Parties: HART v. LEETE et al.
• Court: Missouri Supreme Court

15 S.W. 976

104 Mo. 315

HART v. LEETE et al.

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

WILLS — NATURE OF ESTATE DEVISED — HUSBAND AND WIFE — WIFE'S SEPARATE ESTATE — CHOSES IN ACTION.

1. A provision in a will, "To my two daughters * * * I give and bequeath to each one-fifth part of my entire estate, real and personal, in their own rights," cannot be construed as creating in them separate estates which will deprive their future husbands of their marital rights in the property.

2. The provision of Gen. St. Mo. 1865, c. 115, § 19, that "any property, consisting of stocks and bonds of any kind, given by a parent to a daughter, shall, with the proceeds thereof, belong to such daughter, if married, in her own right, and shall not be subject to the payment of the debts of her husband," extends only to bonds and stocks which are given as such; and where a testator bequeaths to his daughter one-fifth of his estate, and large sums are paid by the executors in distribution to her husband, the fact that such money is derived from dividends and interest on stocks and bonds will not deprive the husband of his marital rights therein.

3. Where a husband receives considerable sums of his wife's inheritance from the executor of her father's estate, and uses them as if they were his own, investing some in various business companies in his own name, depositing in bank in his own name, buying a lot and taking the title in his name, and building a house thereon for a home, having no agreement with her as to the use of the moneys, he will be held to have reduced them to possession, and he cannot contend, as against a creditor seeking to subject the house and lot which he had conveyed to his wife's trustee after a period of ten years, that he was acting solely as her agent.

4. The power of the husband to reduce his wife's choses in action to possession is an inchoate, rather than a vested, right, and therefore the provision of Act Mo. March 25, 1875, (Rev. St. 1879, § 3296,) that "any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture," "shall remain her separate property and under her sole control," is not unconstitutional, as depriving the husband of his property, even in its application to marriages existing at the date of its enactment.

5. Where a husband buys a lot, taking the title in his own name, and builds a residence thereon, and makes payments therefor, extending over a considerable period of time, using funds derived from his wife, and received from the executors of her father's estate, and pending these transactions a statute (Act Mo. March 25, 1875, Rev. St. § 3296) is enacted making the wife's choses in action a part of her separate estate, the property so acquired will vest in the husband and wife in the respective proportions in which the payments were made from moneys reduced to his possession before the passage of the act, and from moneys received for his wife by the husband after the passage of the act.

6. Where the husband and wife are tenants in common of the family residence, and the interest of each is greater than the homestead exemption, it is proper, since the husband is the head of the family, that, in a proceeding to subject the property to his debt, the homestead exemption should be taken out of his interest.

7. Such use of the wife's inheritance gives her no claim on the husband's interest in the property, for the wife's equity to a settlement out of her things in action does not embrace those which the husband has already fully reduced to possession.

8. Where a husband who had used funds derived from his wife's inheritance in buying a lot and building a home, taking the title in his own name, afterwards, on becoming involved, conveys the property to a trustee for his wife, acting upon the idea that it was bought with her money, irrespective of the fact that some of the payments were made before the enactment of Act Mo. March 25, 1875, (Rev. St. § 3296,) depriving the husband of the right to reduce his wife's chose in action to possession, and some were made afterwards, he cannot, in a proceeding in which the conveyance is attacked by his creditor, set up the fact that he was indebted to his wife as the consideration for the deed.

Appeal from St. Louis circuit court; JAMES A. SEDDON, Judge.

Boyle, Adams & McKeighan, and J. D. Davis, for appellant. E. T. Allen, N. O. Gray, and C. B. Allen, for respondent.

BLACK, J.

The plaintiff, as purchaser of real estate at an execution sale, brought this suit to set aside a deed from defendant James M. Leete to defendant Simmons, conveying the property in dispute to Simmons in trust for the use of the wife of said Leete, on the ground that the deed was made in fraud of creditors. The record is lengthy, and it is deemed advisable to here state the case in its outline, leaving the details of the evidence to be narrated in connection with the questions to which it relates. James Harrison died leaving a large estate, and by his will, which was probated in 1870, devised one-fifth of his estate to his daughter Cordelia. On the 28th June. 1871, she married the defendant James M. Leete who was a physician, having property of no greater value than $3,000, and an income of not exceeding $1,000 per annum. Edwin Harrison was the executor of the will, and as such paid over to Dr. Leete, from time to time, from 1871 to 1884, not less than $250,000. In addition to this, he turned over to Mrs. Leete on the 29th September, 1876, stocks and bonds amounting, face value, to $263,740. Dr. Leete purchased the property now in question in September, 1873, and took the title in his own name. He paid for it $12,000, one-fifth in cash, and the residue by his individual notes due in one, two, three, and four years, and secured the same by a deed of trust on the property. The cash payment was made by a check of the executor payable to Dr. Leete, and charged to Mrs. Leete on account of her distributive share in her father's estate. The subsequent payments were made from the funds received from the executors. Dr. Leete built a residence upon the property at a cost of $40,000, and paid for the same from August, 1875, to August, 1876, by checks drawn on funds received by him from the executor on account of his wife's inheritance. He was a stockholder and officer of the Harrison Wire Company, and he indorsed the paper of that company to a large amount. On the 12th December, 1883, the Harrison Wire Company made its note for $25,000, due in six months, payable to Dr. Leete, which was indorsed by him. Augustus B. Hart purchased the note, and when it became due it was renewed for five days. It remained unpaid on the 9th December, 1884, at which time Dr. Leete owed other large sums of money, and he and the Harrison Wire Company were then insolvent. On that day he made the deed now in question to Simmons, conveying the property in suit to Simmons in trust for Mrs. Leete. The deed professes on its face to be made in consideration of five dollars, and for the further consideration that the money which paid for the property and the improvements "was money, income, increase, or profits of personal property belonging to" Mrs. Leete. Augustus B. Hart recovered judgment on the note against Leete in January, 1885, under which the property was sold, and the plaintiff, Oliver A. Hart, became the purchaser in March of the same year. The defendants caused notice to be promulgated at the sheriff's sale to the effect that the property belonged to Mrs. Cordelia Leete. The case was heard by a referee, who made report to the effect that the deed should be set aside, because made in fraud of creditors, to the extent of 624-1000 of the whole title. Numerous exceptions were filed to the report by both sides, but they were all overruled, and the report confirmed, and both sides appealed to this court.

1. The defendants on their appeal insist that the will of James Harrison impressed upon the property devised and bequeathed to Mrs. Cordelia Leete a separate estate. As to this the will is in these words: "To my two daughters, Cordelia Harrison and Medora Harrison, I give and bequeath to each one-fifth part of my entire estate, real and personal, in their own rights." It is well-settled law that no particular or technical words are required to create a separate estate. Any words which negative or exclude the marital rights of the husband will be sufficient. On the other hand, the marital rights of the husband to the property of his wife will not be excluded by mere inferences or conjectures. The intent to exclude his common-law rights must be clearly expressed. A necessary implication will be sufficient, but the purpose to create a separate estate must clearly appear. Garner v. Jones, 52 Mo. 68; Paul v. Leavitt, 53 Mo. 595; Morrison v. Thistle, 67 Mo. 596; 2 Story, Eq. Jur. § 1381. The words "in their own rights" do not create a separate estate. They utterly fail to show or disclose any purpose on the part of the testator to deprive future husbands of the daughters of their marital rights. No case to which we have been cited goes to the extent of saying that such language will create a separate estate.

2. It will be seen from the foregoing statement that it becomes important to know to what extent Leete paid for the property in question and the improvements thereon out of his own means, and this question must be resolved by ascertaining to what extent he became the owner of the money which he received from the executor on account of his wife's inheritance. In view of the different statute laws of this state, at different periods of time, concerning married women, it will be necessary to first confine the inquiry to the time prior to 25th March, 1875. Up to that date Dr. Leete received from the executor about $117,000. The money was paid to him from time to time out of moneys collected by the executor from...