In re Estate of Wood

• Decision Date: 08 July 1921
• Docket Number: 21,132,21,133
• Citation: 232 S.W. 671,288 Mo. 588
• Parties: In re Estate of HENRY WOOD; GEORGE M. BLOCK, Executor, et al., Appellants, v. MINNIE WOOD, No. 21,132. In re Estate of HENRY WOOD; GEORGE M. BLOCK, Executor, et al., Appellants, v. MINNIE WOOD, No. 21,133
• Court: Missouri Supreme Court

232 S.W. 671

288 Mo. 588

In re Estate of HENRY WOOD; GEORGE M. BLOCK, Executor, et al., Appellants, v. In re Estate of HENRY WOOD; GEORGE M. BLOCK, Executor, et al., Appellants, v. MINNIE WOOD, No. 21,132.

MINNIE WOOD, No. 21,133

Nos. 21,132, 21,133

Supreme Court of Missouri

July 8, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.

Affirmed.

Lewis & Rice, Holland, Rutledge & Lashly, Bryan, Williams & Cave, and Eliot, Chaplin, Blayney & Bedal for appellants.

The trial court erred in holding that the separation agreement herein was not valid. (1) Separation agreements between husband and wife are enforceable under the laws of Missouri both at law and in equity, and may include a settlement of property rights. Husband and Wife, 21 Cyc. 1592-96; Contracts, 9 Cyc. 519-520; Perry v. Perryman, 19 Mo 469; Garbut v. Bowling, 81 Mo. 214; Specht v. Dausman, 7 Mo.App. 165; Schmieding v. Doellner, 10 Mo.App. 373; Roberts v. Hardy, 89 Mo.App. 86; Fisher v. Clopton, 110 Mo.App. 663; Stanton v. Johnston's Estate, 177 Mo.App. 57; Banner v. Banner, 184 Mo.App. 396; Speiser v. Speiser, 188 Mo.App. 328; Gilsey v. Gilsey, 195 Mo.App. 407; Rough v. Rough, 195 S.W. 501; O'Day v. Meadows, 194 Mo. 588; Crenshaw v. Crenshaw, 208 S.W. 249; 9 R. C. L. 524, 528, 529, 531. (2) The separation agreement, in giving each party the power to dispose of personal property free from any claim of the other, gave each the power to dispose by will free from any claim of the other. The power to dispose of property free from claims of the other party to the settlement, includes the power to dispose by will. Koerner v. Wilkinson, 96 Mo.App. 517; Benz v. Fabuvin, 35 A. 760; Missionary Society v. Wadhams, 10 Barb. 597; Forsythe v. Forsythe, 108 Pa. 129; Norcom v. D'Oench, 17 Mo. 98; Pendleton v. Bell, 32 Mo. 100; Wead v. Gray, 78 Mo. 59; Campbell v. Johnson, 65 Mo. 439; Underwood v. Cave, 176 Mo. 1; Papin v. Piednoir, 205 Mo. 521; Griffin v. Nicholas, 224 Mo. 275; Buffington v. Buffington, 51 N.E. 328. (3) The separation agreement herein was a complete bar to respondent's petition for distribution. A separation agreement in which there is a release of marital rights in property may be available in the probate court as a defense to claims for dower or statutory rights in place thereof. Fisher v. Clopton, 110 Mo.App. 663. (4) There was ample consideration for the separation agreement herein. Where the covenants are mutual and provide for a continued separation and involve payments of definite, fixed sums of money for support and maintenance, they are upon sufficient consideration. Egger v. Egger, 225 Mo. 144; 13 C. J. 311; Luttrell v. Boggs, 168 Ill. 361; Daniels v. Benedict, 97 F. 367; Fisher v. Clopton, 110 Mo.App. 663; Rough v. Rough, 195 S.W. 501; Baker v. Railroad, 91 Mo. 157; Hudson v. Browning, 264 Mo. 65; 13 C. J. 327; Kaiser's Estate, 199 Pa. 269; Estate of Edelman, 148 Cal. 233; Walker v. Walker, 9 Wall. 743; Com. v. Richards, 131 Pa. 209; 9 R. C. L. 524, 528, 529, 531. (5) There was no evidence that the separation agreement herein had been abandoned by the parties. A contract cannot be abandoned and abrogated by one party without the consent of the other. Merrill v. Central Trust Co., 46 Mo.App. 244; Koerper v. Royal Inv. Co., 102 Mo.App. 543; Wilt v. Hammon, 179 Mo.App. 414. (6) The respondent by agreeing that her husband could dispose of his personalty free from any claim by her gave him the unrestricted power to dispose of it by will. The potential interest of a wife in her husband's personalty is such that the law will protect her against fraudulent efforts of the husband to dispose of such property. Such a potential interest can be relinquished by the wife, so that rights thereunder cannot be asserted after the husband's death. Kerwin v. Smith, 204 S.W. 922; McLaughlin v. McLaughlin, 16 Mo. 242; Dyer v. Smith, 62 Mo.App. 606; Davidson v. Davidson, 179 Mo. 687; Thomas v. Thomas, 107 Mo. 459; Hall v. Callahan, 66 Mo. 323. (7) The separation agreement was in the nature of a novation and a breach of its provisions would not restore the former rights, but would merely give a cause of action on the new contract. Lumber Co. v. Meffert, 59 Mo.App. 437; Bank v. Douglas, 178 Mo.App. 664-680; Bandman v. Finn, 103 A.D. 322, 92 N.Y.S. 1096; Gnechard v. Brande, 57 Wis. 534; Hard v. Burton, 62 Vt. 314. (8) The separation agreement herein is free from ambiguity. Therefore it was erroneous for the trial court to resort to extrinsic evidence in construing same. An unambiguous contract is not subject to construction by extraneous testimony.

Buder & Buder, E. E. Schowengerdt and A. M. Wenger for respondent.

(1) The separation agreement between Henry Wood and Minnie Wood lacked consideration upon which a relinquishment of dower could be based. The agreement specifically states that the two hundred dollars agreed to be paid monthly was for her support and maintenance. Under the law Henry Wood had to provide for her, irrespective of any agreement. He was merely agreeing to discharge an obligation which the law imposed upon him, to wit, to support his wife. Eggers v. Eggers, 225 Mo. 142; Orchard v. Store Co., 264 Mo. 56; Moran v. Stewart, 173 Mo. 215; King v. King, 184 Mo. 99; Johnson v. Johnson, 23 Mo. 561; Chrisman v. Linderman, 202 Mo. 605; Martin v. Jones, 155 Mo.App. 498. (2) Even where the separation agreement specifically releases dower, the agreement will not be upheld and enforced against the widow unless there has been an adequate settlement bestowed upon the wife and is reasonable, fair and just. In the case at bar, there is no settlement whatever upon the wife. Bechtel v. Barton, 110 N.W. 937; Jones v. Lamont, 118 Cal. 499; In re Taylor, 15 Ind. Ter. 219; Speiser v. Speiser, 188 Mo.App. 338; Banner v. Banner, 184 Mo.App. 399; Eggers v. Eggers, 225 Mo. 116; McBreen v. McBreen, 154 Mo. 323; King v. King, 184 Mo. 99; Johnson v. Johnson, 23 Mo. 561; Ireland v. Ireland, 43 N.J.Eq. 311. (3) The burden is upon appellants, who rely upon the separation agreement, to show that the agreement is fair, reasonable and just and that any relinquishment of dower is based upon a sufficient and adequate consideration and that it was entered into with a full comprehension and understanding and in good faith and without fraud. Eggers v. Eggers, 225 Mo. 145; Ireland v. Ireland, 43 N.J.Eq. 311; Cowee v. Cornell, 75 N.Y. 91. (4) The separation agreement does not show an intention or purpose to release and relinquish the rights of the wife in her husband's estate. In the absence of a clearly evidenced intention and purpose to release and relinquish her rights, the contract will be held not to be a release or relinquishment. To have that effect, the instrument must expressly so state. Fisher v. Clopton, 110 Mo.App. 667; Garbut v. Bowling, 81 Mo. 214; Roberts v. Hardy, 89 Mo.App. 92; Newton v. Truesdale, 69 N.H. 634, 45 A. 646; Perry v. Perryman, 19 Mo. 474; R. S. 1909, sec. 362; Dudley v. Davenport, 85 Mo. 462; King v. King, 184 Mo. 99; Jones v. Lamont, 118 Cal. 499; McVay's Estate, 260 Pa. 83; Lazear v. Porter, Assignee, 87 Pa. 513; Shelton v. Shelton, 20 S.C. 560; Ireland v. Ireland, 43 N.J.Eq. 311. (5) Dower is favored in law and no construction of an ambiguous contract should be adopted that would deprive the widow of her dower rights. If there is any doubt as to the effect of the instrument, it should be solved in favor of upholding dower. Klocke v. Klocke, 208 S.W. 825; Perry v. Perryman, 19 Mo. 474; Dudley v. Davenport, 85 Mo. 462; King v. King, 184 Mo. 105; Keeney v. McVay, 206 Mo. 42; Finnell's Estate v. Howard, 191 Mo.App. 218; Chrisman v. Linderman, 202 Mo. 614; Jones v. Lamont, 118 Cal. 499; Rice v. Waddell, 168 Mo. 113; Watkins v. Watkins, 7 Yerg. (Tenn.) 283.

WALKER, J. James T. Blair, C. J., concurs in paragraph 3, and the result.

OPINION

In Banc.

WALKER J.

The review here sought involves appeals in two cases, numbered, respectively, 21,132 and 21,133.

No. 21,132 is an appeal from the judgment of the Circuit Court of the City of St. Louis ordering the payment to Minnie Wood, the widow of Henry Wood, deceased, of $ 250,000, by his executor, of the funds in his hands belonging to said estate, or, at his option and in lieu thereof, that he turn over and deliver to her a one-fourth interest in certain securities, as partial distribution to her, as such widow, of the estate in his hands as executor.

No. 21,133 is an appeal from a similar judgment of said circuit court, for the payment to her, in the further partial distribution of said estate, of an additional sum of $ 750,000, or at his option and in lieu thereof turn over and deliver to her a three-fourths interest in the same securities described in the first judgment.

These judgments were entered August 5th, 1918, on the petitions of the widow presented in each case to the probate court of said city, upon appeal from similar orders of distribution made by that court on said petitions. The short transcript filed in lieu of a full transcript in each of these cases shows that motions for a new trial and in arrest were filed; appeals were allowed to this court on behalf of the St. Louis Children's Hospital, Saint Luke's Hospital and Jewish Hospital, beneficiaries under said will, the St. Louis Union Trust Company, trustee under said will, and George M. Block, executor.

By stipulation these two appeals are to be heard as one case. Similar proceedings appear in each, and all questions of law and fact apply equally to both.

Henry Wood died March 19, 1917, in St. Louis, without children or other descendants, leaving an estate consisting wholly of personal property amounting to more than two and a half million dollars. He left a widow, Minnie Wood, who was the petitioner and is the...