In re Evans' Estate

• Decision Date: 27 March 1906
• Citation: 117 Mo. App. 629,93 S.W. 922
• Parties: In re EVANS' ESTATE. EVANS v. McDANIEL et al.
• Court: Missouri Court of Appeals

93 S.W. 922

117 Mo. App. 629

In re EVANS' ESTATE EVANS v. McDANIEL et al.

St. Louis Court of Appeals. Missouri.

March 27, 1906.

1. EVIDENCE — PAROL EVIDENCE AFFECTING WRITINGS—ANTENUPTIAL CONTRACT.

In proceedings for the appointment of an administrator, in which an antenuptial contract, by which the husband of the deceased bound himself not to control or claim any of her property during her life or after her death, was introduced in evidence, evidence that during her life he managed her property was inadmissible.

2. ADMINISTRATORS — APPOINTMENT—WAIVER OF RIGHT—ANTENUPTIAL CONTRACT.

Where by an antenuptial contract a husband agreed not to control or claim any of his wife's property during her life or after her death, he thereby waived his right to appointment as her administrator given by Rev. St. 1899, § 7.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Proceedings by George W. Evans for appointment as administrator of the estate of Emily Evans, deceased. From an order granting letters of administration to H. B. McDaniel, Evans appeals. Affirmed.

G. G. Lydy, for appellant. V. O. Contrane, for respondent.

BLAND, P. J.

In contemplation of marriage, Emily Smith and George W. Evans, on October 8, 1903, entered into the following contract in writing: "Article of Agreement. By and between G. W. Evans, party of the first part, of the county of Greene and the state of Missouri, and Emily Smith, of the county and state aforesaid. In consideration of their agreement to marry, said party of the first part agrees and binds himself to not control or claim any of her property, real estate, money or personal property, during her life or after her death. The said Emily Smith to control and buy, sell or loan the same as if no marriage had taken place. And the said G. W. Evans also agrees to sign any papers if necessary for the said Emily Smith to transact her business. That if said marriage shall take effect, the said Emily Smith have full control of her property the same as a single woman henceforth and forever. Emily Smith. George W. Evans." After executing the contract the parties were thereafter married in Greene county, and continued to live together in said county until about May 29, 1905, when Emily Evans, formerly Emily Smith, died intestate. On January 2, 1905, George W. Evans made an application to the probate court of Greene county for letters of administration on the estate of his deceased wife. The application is as follows (omitting caption): "George W. Evans, being duly sworn, upon his oath says that Emily Evans, late of Greene county, died at Springfield, in said county, on or about the 29th day of May, 1905, intestate, and the following are the names and places of residence of the heirs of the deceased to the best of his knowledge and belief: Theodore Crandall, Minovia, Cal., who is a brother of said deceased. That said deceased left no children and no children of any deceased child and no other heir. That affiant was the husband of said deceased at time of her death. That he will make a perfect inventory of and faithfully administer all the estate of the deceased and pay the debts as far as the assets will extend and the law direct and account for and pay all assets which shall come to his possession or knowledge. George W. Evans."

"Subscribed and sworn to before me this 2d day of June, 1905. Lottie Dalrymple, Probate Clerk."

Theodore Crandall, a brother and the only heir at law of Emily Evans, appeared and opposed the granting of letters to ...