Hoffmann v. Hoffmann's ex'R

• Decision Date: 05 February 1895
• Citation: 126 Mo. 486,29 S.W. 603
• Parties: HOFFMANN v. HOFFMANN'S EX'R.
• Court: Missouri Supreme Court

29 S.W. 603

126 Mo. 486

HOFFMANN v. HOFFMANN'S EX'R.

Supreme Court of Missouri, Division No. 1.

February 5, 1895.

PROBATE COURT — JURISDICTION — SUIT BY WIDOW — RECOVERY OF PROPERTY FROM HUSBAND'S ESTATE — EVIDENCE — STATEMENTS OF HUSBAND — INSTRUCTIONS — REVIEW ON APPEAL — REMARKS OF COUNSEL — ACCOUNTING BY TRUSTEE.

1. A probate court has jurisdiction of a proceeding against a decedent's estate to enforce an antenuptial agreement between decedent and his wife, and for an accounting for trust funds held by him thereunder.

2. In an action in the probate court by a wife against her husband's estate to enforce an antenuptial agreement, whereby the husband agreed to secure to her "all her estate except * * * such parts as shall have been consumed or destroyed," plaintiff is not required to show that no part of her estate was consumed or destroyed.

3. Statements against a wife's interest, made by her deceased husband to a third person in her presence, are not evidence against her.

4. It is proper to refuse an instruction which would discredit certain testimony given by a witness.

5. In an action by a wife against her husband's estate to enforce an antenuptial agreement, whereby the husband agreed to secure to her "all her estate except the interest and income thereof, and such parts as shall have been consumed or destroyed," it is proper to refuse an instruction which limits plaintiff's recovery to the amount borrowed from her by her husband.

6. The appellate court will not disturb the action of the trial court in refusing to interfere with the remarks of counsel in his argument to the jury, unless it appears that there has been an abuse of discretion.

7. Admissions of a trustee, as to the amount received by him for the trust estate, are admissible to show the amount due from him to the estate.

Appeal from St. Louis circuit court.

Action by Isabella Hoffmann against John Hoffmann's executor to recover money under an antenuptial contract. Judgment in probate court for plaintiff. Upon appeal to the circuit court, the cause was tried de novo, and from a judgment therein for plaintiff defendant appeals. Affirmed.

The action was commenced in the probate court on the following demand: "The petition of Isabella Hoffmann respectfully shows to the court that heretofore, to wit, on the 19th day of March, 1892, John Hoffmann departed this life, and that the St. Louis Trust Company is executor of his estate. Your petitioner further shows that she became the wife of said John Hoffmann in the month of March, A. D. 1886; that just prior to the marriage she and the said John Hoffmann entered into an antenuptial contract, dated the 8th day of March, 1886, and is on record in the office of the recorder of deeds for St. Louis county, in book 28, page 456; that in and by said contract, for the consideration therein recited, the said John Hoffmann did covenant, promise, and agree to and with your petitioner that he would, the said marriage being solemnized, according to his best judgment and skill, manage and preserve the estate of your petitioner, including that which she then had, as well as that which she might receive thereafter, otherwise than through said contract, during the marriage, and at the expiration thereof the said John Hoffmann would secure to her, if she survived him, or to her heirs, if he should survive her, all her estate which might thereafter come into his hands. Your petitioner further states and shows to the court that the said John Hoffmann received of and from her, and for her account, and from sources other than the property referred to in said contract, sums of money amounting in the aggregate to the sum of thirteen thousand ($13,000) dollars, which he failed to secure to her prior to his death, and for which the estate is now indebted to her, and liable. Wherefore, she prays judgment against the estate for the sum of thirteen thousand ($13,000) dollars." The demand was allowed by the probate court, and defendant appealed. In the circuit court the cause was tried de novo, and resulted in a judgment for plaintiff, and defendant appealed to this court.

On the trial it was shown that on or about the 8th day of March, 1886, plaintiff (then the widow of Daniel O'Connor) and defendant's testator were married, having previously entered into a marriage contract. By this contract, plaintiff agreed to accept the provisions made for her in lieu of dower. The provision made was a conveyance to her of a life estate in certain lots in the city of St. Louis. The contract contained this further undertaking on the part of deceased: "And the said John Hoffmann, in consideration of the premises, and of five dollars to him in hand paid by said Isabella O'Connor, does by these presents covenant, promise, and agree to and with the said Isabella O'Connor that he will, said marriage being solemnized, according to his best judgment and skill, manage and preserve her estate, which she now has, or which she may receive hereafter, by descent, gift, devise, or the statute of distribution, from her relatives, or which she may in any way acquire, and take and receive to his own use only the income thereof, during marriage with said Isabella O'Connor, and at the expiration thereof he, the said John Hoffmann, will secure to her, if she survive him, or to her heirs, if he shall survive her, all her estate, except the interest and income thereof during said marriage, and such parts as shall have been consumed or destroyed, and that the said Isabella O'Connor shall have the power to give, devise, or bequeath her said estate, or any part thereof, by last will and testament, as if she were unmarried, and shall also have power and authority, in her own individual name, to receipt for and give acquittance for the rent, income, and profits of the premises herein conveyed to her for the period of her natural life." John Hoffmann died testate in March, 1892, and defendant is his executor. By his will he devised a large part of his estate to charitable institutions. The evidence tended to prove that, during the marriage, deceased received of his wife sums of money aggregating from $12,000 to $14,000. This evidence consisted almost exclusively of admissions and declarations of deceased to third persons that he had borrowed the money of his wife. At the conclusion of the evidence the court gave the jury these instructions, with others which are not challenged: "(1) If you find and believe from the evidence that John Hoffmann, deceased, received from the claimant, Isabella Hoffmann, or for her account, any moneys belonging to her, and that he failed to repay or return the same to her before his death, then your verdict should be in favor of the plaintiff. * * * (3) Unless you are satisfied from the evidence in this case that the deceased, John Hoffmann, received from the claimant, Isabella Hoffmann, or for her account, moneys belonging to her, and failed to repay or return the same to her before his death, your verdict must be in favor of the defendant." The court refused, with others, No. 5 asked by defendant, which is as follows: "The court instructs the jury that they cannot return a verdict for the claimant merely because it may appear that the deceased, during his lifetime, stated that he had borrowed money from his wife, and owed her for it. The jury must be satisfied from the evidence that in point of fact he did borrow money from his wife, and that he owed the same to her at the time of his death." Other necessary facts will appear in the opinion.

C. P. & J. D. Johnson and Jos. S. Laurie, for appellant. H. D. Laughlin and E. McGinnis, for respondent.

MACFARLANE, J.

1. It is insisted by counsel for defendant that this proceeding involves the enforcement of a contract between husband and wife, and also the accounting of a trustee as to funds held in trust, and they are therefore of purely equitable cognizance, and must be determined by a court having equity jurisdiction, and are not therefore within the jurisdiction of the probate court. The constitution of the state gives to the probate courts jurisdiction "over all matters pertaining to probate business." As a matter pertaining to probate business, the statute declares that "the probate court shall have jurisdiction to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of the testator or intestate." This provision seems broad enough to include all money demands, of whatever nature, whether legal or equitable; and so it was held in Hammons v. Renfrow, 84 Mo. 341. The money or property belonging to a woman at her marriage, or which she may acquire during coverture, together with all income, increase, and profits thereof, is declared by statute to be her sole and separate property, and under her sole control. Rev. St. 1889, § 6869. The section further declares that the husband shall not have the power to appropriate or reduce to his possession any of such property, without the written assent of the wife. Should the money of the wife come into the hands of the...