Highley v. Allen

• Decision Date: 24 April 1877
• Citation: 3 Mo.App. 521
• Parties: MARGARET HIGHLEY, Respondent, v. THOMAS ALLEN, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 521

MARGARET HIGHLEY, Respondent, v. THOMAS ALLEN, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1877

1. Where a court of equity enforces the equity of a wife to a separate provision out of property which was hers before, or which accrued to her during, coverture, it proceeds upon the theory that the property belongs to the wife, and not to the husband, with whose property equity will not, in such case interfere.

2. Where, by a decree in equity, the husband and wife are to receive certain proportions of a fund arising from the sale of land belonging to the wife, during their " joint lives," that period is, in contemplation of law, reached when the wife has secured a divorce, as completely as if the husband had died.

APPEAL from St. Louis Circuit Court.

Affirmed.

Wm. R Donaldson, for appellant, cited: Freeman on Judg. 207, 209 213, 262; Bank of Commonwealth v. Hopkins, 2 Dana 391; Beroz v. Hines, 3 Kan. 397; Schouler's Dom. Rel. 227, 228; Bishop's Mar. & Div. 660; 2 Kent's Com. 117; Tritts' Admr. v. Caldwell's Admr., 31 Penn. 233; 4 Rawle 468.

J. H. Whiting, for respondent, cited: Wag. Stat., ch. 46, secs. 8, 9; 2 Kent's Com. 135; Fithian v Monks, 43 Mo. 522, 523; Wood v. Simmons, 20 Mo. 263; Davidson v. Rozier, 23 Mo. 389; Higgins v. Piltzer, 49 Mo. 152.

OPINION

BAKEWELL J.

It appears from the pleadings and evidence in this case that plaintiff is one of the beneficiaries in a deed made in 1855, by one of her relatives named Russell, now deceased, by which certain real estate was conveyed to Allen in trust to pay over the net annual proceeds to certain persons named, of whom plaintiff is one. At the time of the institution of this suit there was in the hands of defendant as trustee of funds which, by the provisions of this deed, were payable to plaintiff, $604. Of this sum three-fifths appear to have been paid to plaintiff or her representatives before the filing of the amended petition herein, and plaintiff obtained judgment in this proceeding for the remaining two-fifths, or $240.60, and interest, in defendant's hands. And from this judgment defendant appeals.

In 1858 Mrs. Highley, claiming that her husband, Nathaniel Highley, was collecting and squandering her income, commenced suit in the Circuit Court of Iron County against her husband and the defendant, Allen, to enforce her wife's equity to the proceeds of her separate property, and prayed a decree directing Allen to pay over to her alone her proportion of the income coming from the estate of which he was trustee under the Russell deed.

When this cause came on to be heard, the cause was submitted to the court sitting as a jury, and taken under advisement; and on the same day the submission was set aside, and the following agreement was filed, signed by the counsel of record for Margaret Highley, the plaintiff, and Nathaniel Highley, the defendant.

" It is agreed, in the above cause, that the submission may be set aside, and the cause and matter in controversy compromised on the following terms: All the dividends now in the hands of Thomas Allen, and such as may accrue during the joint lives of Nathaniel Highley and Margaret Highley, shall be divided; the said Margaret to receive three-fifths thereof, and the said Nathaniel to receive two-fifths to his own use. The said Nathaniel is to surrender the farm on which he lives by the first day of March next, and to have the privilege after that to go upon the same, take care of and harvest and secure the growing crop of wheat, after which he is wholly to abandon it. Said Nathaniel Highley is to give up to said Margaret a bay horse which said Margaret claims. The suit against McClurg in the Washington Circuit Court is to be dismissed, and also the ejectment suit in this court against N. Highley, and no claims asserted by either party against [the other] for any previous transactions in property or money; and that the court may render a decree in conformity with this agreement."

A decree was thereupon entered in the cause, referring to this agreement, and adjudging " that the said Margaret Highley shall have vested in her, to her separate use, free from the control of her said husband, the said three-fifths of said dividend, and shall receive the same from time to time as they may fall due; and that said Nathaniel Highley shall receive from said trustee, to his own use, the said two-fifths of said dividend already in the hands of said trustee, and such as may accrue during the joint lives of said Nathaniel Highley and said Margaret Highley; and the said Thomas Allen, trustee as aforesaid, is hereby decreed and directed to make payments of said dividends to the parties according to the proportions set forth."

Afterwards, on November 10, 1870, Margaret Highley was divorced from her husband, on her application.

It is stated in the briefs of counsel that Nathaniel Highley is still living,...