Jamison v. Zausch

• Decision Date: 31 March 1910
• Citation: 227 Mo. 406,126 S.W. 1023
• Parties: JAMISON v. ZAUSCH et al.
• Court: Missouri Supreme Court

126 S.W. 1023

227 Mo. 406

JAMISON v. ZAUSCH et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1910.

1. CURTESY (§ 9) — GRANT TO WIFE.

Where a grant or devise to a wife is for her separate use, and it clearly appears from the conveyance or will that it was the intention of the grantor or devisor that the husband should

not be tenant by curtesy, such intention will govern, and the husband will have no curtesy.

2. CURTESY (§ 9) — CONVEYANCE IN TRUST FOR WIFE — ESTOPPEL.

A deed making a husband and wife second and third parties, respectively, conveyed property to the husband in trust for the sole and separate use of the wife, her heirs and assigns, entirely free from all control, as well as the estate by curtesy, of the husband, and provided that, on the death of the wife, the husband should convey all interest in him in the property according to the provisions of the wife's will. Held, that it was the intention of the grantors to wholly deprive the husband of his right of curtesy, and that, having accepted the trust, he was estopped from claiming on the wife's death any interest adverse thereto.

3. TRUSTS (§ 38) — ACCEPTANCE — EVIDENCE.

Where a deed to a husband in trust for his wife was not signed by the husband, but the latter testified that there was an arrangement between his wife and himself that he was to be made trustee, and that he signed as trustee, and he and his wife entered into possession of the property under the terms of the deed, the husband during 18 years making no disclaimer, there was an acceptance by him of the trust.

4. STATUTES (§ 263) — CONSTRUCTION.

In construing statutes, the rule is that they must be held to operate prospectively only, unless the intent is clearly expressed that they shall act retrospectively, or the language admits of no other construction.

5. CONSTITUTIONAL LAW (§ 189) — STATUTES — RETROSPECTIVE ACTION.

In view of Const. art. 2, § 15 (Ann. St. 1906, p. 137), prohibiting the passage of ex post facto laws Acts 1895, p. 169 (Rev. St. 1899, § 2938 [Ann. St. 1906, p. 1694]), providing that, when a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half the estate belonging to the wife at the time of her death, did not affect or impair a contract made prior to the passage of the act whereby a husband, named as grantee in a conveyance, contracted to convey all interest in him on the death of his wife in accordance with the provisions of her will, free from his right of curtesy.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Jesse T. Jamison against Hanora Zausch and others. Judgment for defendants, and plaintiff appeals. Affirmed.

W. B. & Ford W. Thompson, for appellant. Rassieur, Kammerer & Rassieur, for respondents.

BURGESS, J.

This is a suit to partition two parcels of ground in the city of St. Louis, at the southeast corner of Prairie and Easton avenues. Plaintiff is the widower of Mary Jamison, to whom he was married in 1865, and who at the time of her death was the owner of the two parcels sought to be partitioned. One, the larger parcel, was acquired from Claude Kilpatrick and wife by deed dated October 18, 1888; the other from William G. Ashby, by deed dated June 4, 1904. The said Mary Jamison died on the 29th day of January, 1906, leaving a will which was duly probated in the probate court of the city of St. Louis on the 31st day of January, 1906, wherein and whereby she nominated and appointed her nephew, Henry Louis Zausch, defendant herein, as executor, authorizing him to take charge of said real estate, to collect the rents therefrom, and, after the payment of her debts and the expenses of administration, to pay not less than $30 monthly to her husband, the plaintiff, during the administration of her estate; and also appointed the defendant Mercantile Trust Company as trustee, with power to hold, manage, and control all the rest and residue of her estate, and to pay four-fifths the income thereof to the plaintiff during the period of his life, and the remainder of the income to defendant Hanora Zausch, sister of the testatrix, the remainder in fee of said trust estate, after the expiration of said life estate, to go to said Hanora Zausch, her heirs and assigns, forever.

The deed from Claude Kilpatrick and wife was as follows: "This deed, made and entered into this 18th day of October, 1888, by and between Claude Kilpatrick and Dolly L. Kilpatrick, his wife, of the city of St. Louis, state of Missouri, parties of the first part, and Jesse Jamison, party of the second part, and Mary Jamison, of the same place, party of the third part, witnesseth: That the said parties of the first part, for and in consideration of the sum of forty-five hundred dollars, to them in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to them paid by the said party of the second part, the receipt of which is also hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, his heirs and assigns, and his successors in trust forever, the following described real estate, situate in the city of St. Louis, state of Missouri, to wit: [Then follows a description of the property conveyed.] To have and to hold the same, together with all and singular the privileges and appurtenances thereunto belonging or in anywise appertaining, unto the said party of the second part, his heirs and assigns, and to his successors in trust forever. In trust, however, for the sole and separate use, benefit and behoof of the said Mary Jamison, her heirs and assigns, and entirely free from all control, restraint or interference, as well as the estate by curtesy and all debts of her husband. The said Mary Jamison to have, hold, to use, occupy, and enjoy the exclusive and undisturbed possession of said real estate and the appurtenances thereunto belonging, with power to direct the sale or lease or other disposal of the same at her will and pleasure, and to receive to her own separate use and benefit the proceeds of such sale and all rents and profits arising or accruing from the lease or other disposal of the same, the said party of the second part holding said real estate subject at all times to the direction in writing under her hand and seal without the intervention of her husband, of the said Mary Jamison, her heirs and assigns, as to the disposal of the said real estate, whether by lease, conveyance in fee, mortgage, assignment, or transfer of this trust or otherwise. Upon the decease of said third party said trustee shall and will convey all interest yet in him in said real estate in accordance with the said will of the said third party; but, in case said third party should leave no will, then said trustee shall and will convey the said real estate to the legal heirs of said third party. And the said Mary Jamison shall have power at any time hereafter, whenever she shall from any cause deem it necessary or expedient, by an instrument in writing under her hand and seal, and by her acknowledged, to nominate or appoint a trustee or trustees in the place and stead of the party of the second part above named, which trustee or trustees, or the survivor of them, or the heirs of such survivor, shall hold the said real estate upon the same trust above recited; and upon the nomination and appointment of such new trustee, the estate in trust hereby vested in said party of the second part shall thereby be fully transferred and vested in the trustee or trustees so appointed by the said Mary Jamison." This deed was signed and acknowledged by the said grantors on the 5th day of November, 1888.

The deed from William G. Ashby to Mary Jamison, of date the 4th day of June, 1904, was a regular warranty deed, without the intervention of a trustee. It conveyed a lot adjoining that conveyed by the Kilpatrick deed.

At the trial plaintiff testified that he had not paid anything for the deed from the Kilpatricks, and that there was an arrangement between him and his wife that he was to be made trustee in the deed. He also stated that he had signed as trustee, although the deed shows that it was not so signed by him. The evidence shows that there was no issue born of the marriage of plaintiff and Mary Jamison, deceased, and that she had at the time of her demise no descendants in being capable of inheriting.

Upon the above evidence the court found that plaintiff was entitled, under section 2938, Rev. St. 1899 (Ann. St. 1906, p. 1694), to an undivided one-half interest in the property acquired by Mrs. Jamison from William G. Ashby, and that he was entitled to partition thereof; but, as to the property acquired from Claude Kilpatrick and wife, the court held that plaintiff had no interest therein, excepting that given to him by the will of his wife, and that as to that interest he was not entitled to partition. Judgment was entered accordingly....