Howard v. Strode

• Citation: 146 S.W. 792
• Parties: HOWARD v. STRODE.
• Decision Date: 21 March 1912
• Court: United States State Supreme Court of Missouri

146 S.W. 792

HOWARD v. STRODE.

Supreme Court of Missouri, Division No. 2.

March 21, 1912.

Rehearing Denied April 9, 1912.

1. DESCENT AND DISTRIBUTION (§ 53)—INTEREST OF SURVIVING WIFE — STATUTES — COMPILATION—TITLE OF CHAPTER—EFFECT—"DOWER."

Since the title to a chapter of a compilation of statutes does not control the interpretation of the sections therein, the fact that Rev. St. 1909, § 349, giving to a widow a child's part of her husband's personal property is in the chapter entitled "Dower," does not make such widow's provision dower, nor require its admeasurement in the manner prescribed for the admeasurement of dower in real property.

2. DESCENT AND DISTRIBUTION (§ 52)—PERSONAL PROPERTY — WIDOW'S INTEREST — STATUTES—"DOWER."

Rev. St. 1909, § 349, provides that, on the death of a husband, his widow shall be entitled to a child's share in his personal property subject to debts to be ascertained on final settlement of the estate. Held, that such provision was not dower; the widow, in so far as she was authorized to take the same, being a mere distributee, dower being something that belonged to the widow absolutely, and independent of her husband or his creditors.

3. DOWER (§ 10) — ADMEASUREMENT — PERSONAL PROPERTY.

The statutory provisions for the admeasurement of dower do not apply to personal property.

4. EXECUTORS AND ADMINISTRATORS (§ 314) — DISTRIBUTION — PERSONAL PROPERTY — WIDOW'S INTEREST.

A child's share of a decedent's personal property, payable to his widow as provided by Rev. St. 1909, § 349, is obtainable by petition presented to the probate court on final settlement.

5. JURY (§ 12)—RIGHT TO JURY TRIAL—CONSTITUTIONAL PROVISIONS—"AS HERETOFORE ENJOYED."

The words, "as heretofore enjoyed," as used in Const. art. 2, § 28, providing that the right of trial by jury is limited to the right "as heretofore enjoyed," refers to the right of trial by jury as it existed prior to the adoption of the Constitution in 1875, and, there being at that time no right to a jury trial accorded to a widow to determine her interest in her husband's personal property, she is accorded no such right by the Constitution.

6. JURY (§ 17)—RIGHT TO JURY TRIAL— PERSONAL PROPERTY—ESTATE OF HUSBAND —RIGHT TO WIDOW.

Where an alleged widow properly applied to the probate court for the determination of her interest in her husband's personal property on the final settlement of his estate, and, her petition having been denied, she appealed

to the circuit court, she was not entitled to a jury trial on such appeal.

7. ACTION (§ 16)— COMMENCEMENT—NATURE OF PROCEEDING — PETITION IN PROBATE COURT.

The filing of a petition in the probate court by an alleged widow to obtain a child's share in the decedent's personal property on final settlement of the estate is not the institution of a suit, but a mere motion filed in proceedings pending, which, in the absence of statute to the contrary, is to be considered and passed on by the court according to the practice of determining of ordinary motions.

8. DIVORCE (§ 326)—FOREIGN DIVORCE DECREE—FULL FAITH AND CREDIT.

The rule that the full faith and credit clause in the federal Constitution cannot be invoked to compel the courts of this state to recognize as valid a divorce granted by a sister state on constructive service by publication in the state, where the defendant never had a matrimonial domicile in the state granting the divorce, does not prevent the courts of this state from recognizing such a decree as valid, if they so desire, in accordance with its recognized policy.

9. DIVORCE (§ 327)—FOREIGN JUDGMENT— RECITAL OF SERVICE.

Where a foreign decree was offered in evidence and the entire record was absent, a recital of the decree that legal service was had by publication establishes a prima facie case of due and legal service.

10. DIVORCE (§ 327)—FOREIGN JUDGMENT— PRESUMPTIONS.

Where a foreign divorce decree was offered in evidence, and it recited that legal service was had by publication, it must be presumed that the statutes of the state where it was rendered authorized constructive service by publication.

11. DEPOSITIONS (§ 91)—COMPETENCY—HUSBAND AND WIFE—REMOVAL OF DISABILITY —DIVORCE.

Rev. St. 1909, § 6411, provides that depositions may be read and used as evidence in a case in which they shall have been taken as if the witnesses were present and examined in open court on the trial thereof. Held that, where an absolute divorce was granted to a husband between the time when his deposition was taken for use in an action by his wife and the time the deposition was offered in evidence, the deposition was properly admitted, since the competency of the witness depends on the facts existing at the time he is offered, and at the time the deposition was offered the husband would have been competent, except as to confidential communications.

12. EVIDENCE (§ 318) — HEARSAY — RECORD ENTRIES—DEATH OF WRITER.

Plaintiff married a man by the name of "Henry Howard" at Decatur, Ill., January 15, 1883. They never lived together for any considerable time, and she claimed that her husband was the decedent "Laclede J. Howard" of St. Louis, Mo., who died in 1903. In 1883 decedent was president of a particular corporation, and was claimed to have made entries of orders for goods in the corporation's books on the day of such alleged marriage, and also to have entered minutes of an annual meeting of the corporation's stockholders held in St. Louis on January 16, 1883. Held, that such entries in decedent's handwriting were admissible after his death, and the death of all the others present at the meeting, to show that decedent was not in Decatur, Ill., on the date of his alleged marriage.

13. CORPORATIONS (§§ 196, 298) — RECORDS— MINUTES.

It is the duty of a corporation to keep a record of the minutes of the meetings of its stockholders and directors showing the date when the meetings were held and who was present, and it is the duty of the secretary to prepare and enter such minutes in the record.

14. MARRIAGE (§ 50)—EVIDENCE.

Evidence held sufficient to warrant a finding that plaintiff was never married to decedent.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Motion by Mary Howard against Garrard Strode, public administrator of Laclede J. Howard, deceased, for a final settlement of the estate and a delivery to her of a child's share of the personal property. From an order denying her petition, affirmed on appeal to the circuit court, she appeals. Affirmed.

This cause was begun by filing on August 23, 1905, the following motion in the probate court of the city of St. Louis: "In the Probate Court. State of Missouri, City of St. Louis—ss.: In the Matter of Laclede J. Howard, Deceased. Now comes the undersigned, the widow of Laclede J. Howard, deceased, and respectfully shows to the court that at filing of the last annual settlement filed in this court on the 20th day of June, 1904, by Garrard Strode, public administrator, in charge of the estate of her said deceased husband, there was in the hands of said administrator, and unexpended, money, bonds, stocks, and other personal property belonging to said estate in excess of the sum and value of $198,825; that said administration has been in course and pending in this court since the 15th day of May, 1903; that all the assets of the estate have been fully collected, and all the demands made or that can be made agreeable to law against said estate have been paid, and that said estate has been fully administered upon, but that no final settlement has been made by said administrator, and that she is informed and believes that there is now or should be now in the hands of the administrator, after paying all claims and demands allowed against said estate and the costs of administration, money, bonds, stocks, and other personal property belonging to said estate in excess of $218,000; and that deceased left surviving him, and still living, one child, a minor, and the undersigned, his widow, and she further states that as the widow of deceased she is now entitled to receive a child's part or one-half of all the personal property owned by her said husband at the time of his death, as provided by section 2937, R. S. 1899, but that she has never received any part thereof. Wherefore, the undersigned moves the court for an order on said Garrard Strode requiring him to make final settlement of his administration of said estate, and that, upon the filing and hearing thereof, the court may set out her share of dower in all the personal property belonging to the estate of her said husband and owned by him at the time of his death, and which passed into the possession or under the control of said administrator as shown by the appraisement, inventory, and settlements heretofore filed by him in the administration of said estate in this court, and that thereupon this court will make an order of distribution requiring said administrator to pay over to her such sum of money and deliver to her such articles of personal property as it shall determine to be her dower or distributive share in the personal property of said estate. Mary Howard, by John J. O'Connor, Attorney for Widow."

After hearing evidence on the motion, the same was denied by the probate judge. Upon appeal to the circuit court, the matter was tried de novo by the court upon the evidence, and judgment rendered against plaintiff, from which judgment she appeals.

There was a vast amount of evidence given on both sides, making in all some 1,200 pages of record. It will be unnecessary to detail the testimony. A short outline of the facts will suffice as a preliminary statement. The plaintiff claimed in 1883 she resided in Palmer, a small town in Illinois; that she was married to Laclede J. Howard under the name of "Henry Howard" in Decatur, Ill., on January 15, 1883; that within a very few days he left her; that they again met the following spring, and were together two days,...