Howard v. Strode

• Decision Date: 09 April 1912
• Parties: MARY HOWARD, Appellant, v. GARRARD STRODE, Public Administrator, In Charge of Estate of LACLEDE J. HOWARD, Deceased
• Court: Missouri Supreme Court

146 S.W. 792

242 Mo. 210

MARY HOWARD, Appellant, v. GARRARD STRODE, Public Administrator, In Charge of Estate of LACLEDE J. HOWARD, Deceased

Supreme Court of Missouri, Second Division

April 9, 1912

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Affirmed.

John J O'Connor for appellant.

(1) Plaintiff was entitled to a trial by jury of her suit for dower in the personal property owned by her deceased husband at the time of his death. Sec. 2937, R. S. 1899; Shipp v Snyder, 121 Mo. 155; sec. 372, R. S. 1909. Sec. 2937, R. S. 1899, gives a new right to the widow, "dower in personal property of the deceased husband," but prescribes no remedy, and when a right is given without a remedy, the person to whom the right is given may select any remedy suitable. Sedgwick, State and Court Law (2 Ed.), p. 74; Young v. Renshaw, 102 Mo.App. 184. (2) The trial court erred in admitting over plaintiff's objection the deposition of T. J. Miller in evidence. Miller claimed to be the husband of plaintiff at the time he gave said deposition, and his deposition covered matters and things which he testified occurred during the time that he alleges he was her husband, and as he was not a party to this action, he was incompetent as a witness, and his testimony was incompetent for any purpose. Sec. 6359, R. S. 1909, provides the only cases in which a husband may testify when he is not a party to the suit, and this is not one of such cases. State v. Ulrich, 110 Mo. 364; Layson v. Cooper, 174 Mo. 211; Scott v. Burfiend, 116 Mo.App. 71; Kane v. Kane, 79 Mo.App. 339. The statute does not change the common law rule, except as to the matters therein mentioned; in other respects the husband is still incompetent. Curd v. Brown, 148 Mo. 95. Defendant offered the deposition on the theory that Miller was plaintiff's husband, and he is bound by that theory in this court. State v. St. John, 94 Mo.App. 229. (3) The trial court erred in admitting, on behalf of defendant, and over the objections of plaintiff, the alleged decree of divorce alleged to be granted to Miller in the Superior Court at Olympia. Plaintiff was never in Washington, nor was the status of the alleged marriage of Miller ever maintained or sustained in Washington. Hence the Superior Court of that State never had jurisdiction to render any judgment against plaintiff in said alleged suit. Haddock v. Haddock, 201 U.S. 562. It was not a full record, and for that reason it should have been rejected. Crone v. Dawson, 19 Mo.App. 214; Williamson v. Williamson, 53 Mo.App. 623; Lee v. Lee, 21 Mo. 534. Under the full-faith-and-credit clause of the Constitution of the United States, sec. 1, art. 4, it was not admissible. Adams v. Adams, 188 U.S. 14; Haddock v. Haddock, 201 U.S. 562. Nor was there any statute of Washington offered or read in evidence showing that said Superior Court had jurisdiction to render such a decree on constructive service. Price v. Clevenger, 99 Mo.App. 536; Mfg. Co. v. Long, 54 Mo.App. 149. Moreover, the admission of said decree violated her rights under the Constitution of the United States (Sec. 1, 14th Amendment), in that it took her property without due process of law. Haddock v. Haddock, 201 U.S. 562. (4) It was error to admit in evidence over plaintiff's objections the two order books of the Evans & Howard Fire Brick Co. That company was no party to this suit, and the entries in said books were only hearsay, and not binding on plaintiff. Especially was it error to admit in evidence the minute book of said company over plaintiff's objection; for there was no evidence offered to show when the minutes of the stockholders' meeting, or the minutes of the meeting of the board of directors were actually written into the minute book. For all that the defendant's evidence shows, said minutes could have been written a month after the meetings are said to have been held. Martin v. Nichols, 54 Mo.App. 594; Nelson v. Nelson, 90 Mo. 463; 1 Greenleaf on Evidence, sec. 118; Milling Co. v. Walsh, 108 Mo. 285; Robinson v. Smith. 111 Mo. 205; Bader v. Ferguson, 118 Mo.App. 34.

Johnson, Houts, Marlatt & Hawes for respondent; Block & Sullivan of counsel.

(1) A decree of divorce in another State, upon constructive service, is valid and binding here. Gould v. Crow, 57 Mo. 203; Anthony v. Rice, 110 Mo. 227. (2) When a judgment is offered merely to prove the fact of its rendition, the judgment only, and not the entire record, need be produced. Lee's Admx. v. Lee, 21 Mo. 534; Seymour v. Newman, 77 Mo.App. 583; Crone v. Dawson, 19 Mo.App. 218. (3) The Superior Court of Washington, being a court of record, and having assumed jurisdiction to grant a divorce, its right to do so will be presumed. Gould v. Crow, 57 Mo. 202; Anthony v. Rice, 110 Mo. 227; Williams v. Williams, 53 Mo.App. 620. (4) A divorce removes the disqualification as a witness for or against the former spouse, save only as to confidential communications during coverture. Long v. Martin, 152 Mo. 675; State v. Kodat, 158 Mo. 128; McClosky v. Pub. Co., 163 Mo. 27; 30 Am. & Ency. Law (2 Ed.) p. 950; 1 Wigmore on Evidence, sec. 610. (5) The competency of a witness testifying by deposition is controlled by his status at the time of the trial, instead of at the time the deposition is given. Messmer v. McCray, 113 Mo. 390; 13 Cyc. 994; Oliver v. Moore, 13 Heisk. 487; Railroad v. Harper, 60 Ark. 159; R. S. 1909, sec. 6384; Ex parte Livingston, 12 Mo.App. 84; Ex parte Priest, 76 Mo. 232. (6) The order book and minute book of the Evans & Howard Fire Brick Company were admissible in evidence to prove the whereabouts of Laclede J. Howard on Jan. 15 and 16, 1883. Comm. Co. v. Bank, 107 App. 435; Knapp v. Trust Co., 199 Mo. 669; Jonesboro Co. v. United Co., 117 App. 153; Clark v. Church, 21 Hun, 98; Abbott's Trial Briefs "Mode of Proving Facts," p. 31; Nichols v. Webb, 3 Wheat. 332; Leland v. Cameron, 31 N.Y. 121; Welsh v. Barrett, 15 Mass. 386; 2 Wigmore on Evidence, p. 1880, sec. 1518 (b), p. 1890, secs. 1523-1528; 9 Am. & Eng. Ency. Law (2 Ed.), p. 895; 2 Wigmore on Evidence, sec. 1074 (b), p. 1267. They were also admissible as specimens of the hand-writing and signature of Laclede J. Howard for purpose of comparison with the marriage record at Decatur. R. S. 1909, sec. 6382. (7) The procedure which we inherited from England for the assignment of dower was a chancery proceeding, and not a common law proceeding. Munday v. Munday, 4 Brown's Ch. Rep. 295, S. C. 2 Vesey 122. The jury mentioned in the statute regulating proceedings to assign dower is discretionary with the court. R. S. 1909, sec. 372. Our statute, regarding a jury in dower cases, is expressly limited to dower in real property. R. S. 1909, sec. 367. The right of a widow in the personal estate of her deceased husband is not dower; she is, as to such, a distributee. Bryant v. McCune, 49 Mo. 547; Weindel v. Weindel, 126 Mo. 644; Hastings v. Myers, 21 Mo. 521; Griffith v. Canning, 54 Mo. 284; Woerner's Administration, 229. The claims of widows to shares of the personal estates of their deceased husbands were not being tried by juries when the Constitution of 1875 was adopted. Hastings v. Myers, 21 Mo. 519; McFarland v. Admr., 24 Mo. 156; Hayden v. Admr., 23 Mo. 398; Bryant v. McCune, 49 Mo. 546; Cummings v. Cummings, 51 Mo. 263; Downey v. Bauer, 68 Mo. 155; Devin v. Patchen, 26 N.Y. 445; Bradstreet v. Bradstreet, 64 Me. 209; Higbee v. Bacon, 11 Pick. (Mass.) 425. On appeal from the probate court, in cases of this character, the circuit court does not sit as a court of law, and a jury trial is not demandable. Skeen v. Johnson, 55 Mo. 24; Whaley v. Whaley, 50 Mo. 582; In re Meeker's Estate, 45 Mo.App. 194; Ferry v. McGowan, 68 Mo.App. 617; Finley v. Schlueter, 54 Mo.App. 458; Schooler v. Stark, 73 Mo.App. 308; Ansley v. Richardson, 95 Mo.App. 334; Pearson v. Haydell, 87 Mo.App. 499; Stevens v. Larwill, 110 Mo. 149; 24 Cyc. 148. The widow is a distributee of the personal estate and obtains her share of the estate, less debts, etc., on final settlement like any other distributee. Straat v. O'Neill, 84 Mo. 73; Cox v. Admr., 3 Mo.App. 848; Hastings v. Admr., 21 Mo. 521; Griffith v. Canning, 54 Mo. 284.

FERRISS, P. J. Kennish and Brown, JJ., concur.

OPINION

FERRISS, P. J.

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

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...