Jones v. McGonigle

• Decision Date: 31 March 1931
• Docket Number: 28930
• Citation: 37 S.W.2d 892,327 Mo. 457
• Parties: Virginia B. Jones, Appellant, v. David S. McGonigle and Leona M. Hill, Executors of Last Will of Ben F. Jones; Board of Trustees of Park College, Park College, Clara Manter, James L. Jones, Maggie Jones, Thelma Mayer, Charles Cavanaugh, Clara Hill McGhee, Arline Hill Tetley, and Unknown Heirs of Mattie Green and of Emma Marshall
• Court: Missouri Supreme Court

37 S.W.2d 892

327 Mo. 457

Virginia B. Jones, Appellant, v. David S. McGonigle and Leona M. Hill, Executors of Last Will of Ben F. Jones; Board of Trustees of Park College, Park College, Clara Manter, James L. Jones, Maggie Jones, Thelma Mayer, Charles Cavanaugh, Clara Hill McGhee, Arline Hill Tetley, and Unknown Heirs of Mattie Green and of Emma Marshall

No. 28930

Supreme Court of Missouri

March 31, 1931

Motion for Rehearing Overruled March 31, 1931.

Appeal from Jackson Circuit Court; Hon. Ralph S. Latshaw Judge; Opinion filed January 5, 1931: Motion for rehearing filed; motion overruled March 31, 1931.

Reversed and remanded.

Bruce Barnett and Josiah Barnett for appellant.

(1) An antenuptial agreement relinquishing dower will be set aside if the provision made for the wife's support is inadequate or if the property awarded to the wife by the agreement constitutes such a small part of the husband's estate as to be an unfair or oppressive agreement. Mowser v. Mowser, 87 Mo. 437; Moran v. Stewart, 173 Mo. 207; Farris v. Colman, 103 Mo. 352; Egger v Egger, 225 Mo. 116. (2) There was no necessity for plaintiff to tender a deed conveying back the parcel of real estate she received pursuant to the antenuptial agreement. (a) This is a suit in equity to rescind an antenuptial agreement, and the rule requiring that party rescinding must tender back that which he has received as a prerequisite to the maintenance of an action, applies only to actions at law in which case the plaintiff rescinds upon his own ipse dixit; but in equity the plaintiff does not declare that he has rescinded, but seeks a decree of rescission, so that the court will force the rights of the decree by requiring the plaintiff to do equity as a condition of receiving the benefits of the decree. 2 Storey's Equity Jurisprudence, sec. 707; 21 C. J. 174; Whelan v. Reilly, 61 Mo. 565; Woodard v. Mastin, 106 Mo. 362; Paquin v. Milliken, 163 Mo. 79; Haydon v. Railroad, 117 Mo. 76; Kline v. Vogel, 90 Mo. 239; Dalpine v. Lume, 145 Mo.App. 557. (b) Even if it would ordinarily be necessary for plaintiff to tender a deed conveying back the property received under the agreement sought to be rescinded, there could be no such requirement in this case because the petition alleges that plaintiff is without means of support and it would be an undue hardship for her to render or surrender back the one insignificant piece of real estate she received from her husband, thus rendering herself utterly penniless, pendente lite. Axman v. Smith, 156 Mo. 386. (c) According to the allegations of plaintiff's petition she is entitled to one-half of her husband's estate absolutely as a child's part, according to her contention; but even if she is entitled to dower, only the one small parcel of real estate which she is holding pendente lite consists of but a small part of that to which she is entitled, and for that reason there was no necessity for a tender of a deed surrendering up the property before instituting her suit. Egger v. Egger, 225 Mo. 116. (d) The petition alleges the pendency of an action to set aside the will of Ben F. Jones, deceased. By reason of this, if there had been any necessity for plaintiff to tender a deed surrendering the property she had received under the antenuptial agreement, there was no such necessity in this case because it would have been impossible to determine to whom the tender should be made and who should be the grantees in the deed. (3) As to the last ground of the demurrers, to-wit, that the action was barred because not brought within the period of one year allowed for filing demands against the estate of the decedent, we answer that this suit is not a demand against the estate either in substance or form; that it has no relationship to or bearing upon the administration of the estate; that it is an action entirely separate from the administration, to-wit, an action involving the title to the real estate of which Ben F. Jones died seized.

Griffin & Orr for Park College; Johnson, Lucas, Landon & Graves and Dwight M. Smith for executors.

(1) Appellant, by taking ten days' time to plead over, upon the trial court sustaining demurrers to her petition, acquiesced in such rulings and waived any right of appeal therefrom. 3 C. J. 667, sec. 538; Roach v. Lumber Co. (Ok.), 267 P. 256; McElwain v. Willis, 9 Wend. 548; Coplan v. Eastwood, 145 N.W. 431; Doyle v. City of Sycamore, 61 N.E. 117; Parkyne v. Churchill, 246 Mo. 109. (2) Respondents' demurrers were properly sustained for the reason that it appears on the face of plaintiff's amended petition that the will of Ben F. Jones recited that he left no property to his wife, by reason of the fact that an antenuptial contract had been entered into prior to the marriage covering a property settlement and it is not alleged that plaintiff had in any way renounced said will or said contract or made any election, and this suit to annul the antenuptial contract was brought more than one year after said will was admitted to probate. In re Goessling's Estate, 287 Mo. 663, 230 S.W. 613; Lindsley v. Patterson, 177 S.W. 832; Fox v. Windes, 127 Mo. 502; Young v. Boardman, 97 Mo. 181; Wood v. Conqueror Trust Co., 178 S.W. 201; Stone v. Cook, 179 Mo. 534; Thompson v. Scott, 19 S.W.2d 1064; Sec. 330, R. S. 1919. (3) Respondents' demurrers to plaintiff's amended petition were properly sustained for the reason that the amended petition shows on its face that plaintiff accepted the benefits accruing to her under the antenuptial contract, which benefits she retained and declined to tender back, and is therefore estopped to deny or contest the validity of said antenuptial contract. Stone v. Cook, 179 Mo. 534; Hobbs v. Henley, 186 S.W. 982; In re Goessling's Estate, 230 S.W. 616; Rock Island Implement Co. v. Wally, 268 S.W. 912; Thomas v. Am. Auto Underwriting Agency, 5 S.W.2d 661; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388; Farrar v. Shuss, 282 S.W. 512; Gilmore v. Ozark Mut. Assn., 31 S.W.2d 633; Sec. 70, R. S. 1919.

Ferguson, C. Seddon and Ellison, CC., concur.

OPINION

FERGUSON

This is a suit in equity to set aside and annul an antenuptial agreement whereby the plaintiff, appellant here, agreed to accept certain real estate "in lieu of dower or any other marital interest in real estate." All of the legatees and devisees in the will of Ben F. Jones, deceased, and all the heirs at law of the said Ben F. Jones, deceased, are made defendants.

Defendants filed demurrers to the first amended petition, which were sustained. Plaintiff declined to plead further, and judgment was entered for defendants, from which plaintiff appeals. The petition alleges that plaintiff and Ben F. Jones were lawfully married on August 22, 1923; that the said Ben F. Jones died in Jackson County, Missouri, on the 9th day of December, 1925; that a purported will of Ben F. Jones, deceased, dated the 17th day of September, 1925, was presented to the Probate Court of Jackson County on the 12th day of December, 1925, and was found and declared by said court to be the last will of the said Ben F. Jones, deceased; that by said purported will, decedent bequeathed the sum of $ 1,000 to each of the defendants, Clara Manter, James L. Jones and Maggie Jones and certain enumerated items of personal property to defendant Thelma Mayer, and that it is stated in said purported will that "said decedent wills and devises no property to Virginia B. Jones, this plaintiff, said will containing the statement that prior to entering into a marriage relation with said Virginia B. Jones, this plaintiff, a prenuptial contract was entered into and a property settlement was made between said testator and this plaintiff;" that the defendant Park College was made residuary devisee and legatee in said purported will; that Ben F. Jones, deceased, has no lineal descendants and all his heirs at law are made parties defendants; that Ben F. Jones died, seized of real estate situate in Jackson County, Missouri which is described. Continuing, the petition states:

"That on August 22, 1923, this plaintiff was lawfully married to said Ben F. Jones; that on and prior to said day and continuously thereafter since and up to the time of his death he was the owner absolutely of all of the real estate above described and at all of said times the same was of a value in excess of $ 50,000; that on the day of said marriage and before the hour of the celebration and solemnization thereof this plaintiff and said Ben F. Jones signed an instrument in writing whereby it was recited in substance that said Ben F. Jones should convey to this plaintiff a certain interest in certain real estate known as and numbered 3202 East 21st Street, in Kansas City, in Jackson County, Missouri, to-wit: a remainder therein after the death of said Ben F. Jones, that is to say, that said Ben F. Jones reserved unto himself a life estate, which remainder, subject to a mortgage of $ 1,000, by the terms of said paper writing was to be accepted by this plaintiff in lieu of dower or any other marital interest in all real estate of said Ben F. Jones; that thereafter a deed was signed and acknowledged by said Ben F. Jones conveying such real estate, with such reservation of life interest, subject to such mortgage, to this plaintiff.

"That said property so conveyed was a lot of ground with a house of five small rooms, of small value; that the interest conveyed by said deed did not exceed $ 1,500, and such settlement and jointure was and is grossly inadequate; that the value thereof did not exceed one-tenth of the value of this plaintiff's dower, which fact was not known to plaintiff but was well known to said Ben F. Jones, and said settlement was not entered into by said Ben F. Jones in good faith, and the consideration...