Kerwin v. Kerwin

• Citation: 204 S.W. 925
• Decision Date: 25 June 1918
• Docket Number: No. 2248.,2248.
• Parties: KERWIN v. KERWIN.
• Court: Court of Appeal of Missouri (US)

204 S.W. 925

KERWIN v. KERWIN.

No. 2248.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, iron County; E. M. Dearing, Judge.

Suit by Bertha Kerwin against William Kerwin. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 204 S. W. 922.

Fred L. English, of St. Louis, and J. H. Keith, of Ironton, for appellant. Edgar & Edgar, of Ironton, and Watts, Gentry & Lee, of St. Louis, for respondent.

STURGIS, P. J.

This is a suit by the widow of John A. Kerwin against his son to recover her dower in personal property alleged to have been "disposed of by gift to the defendant" in contemplation of death and for the purpose of depriving plaintiff of her dower right therein. The facts are substantially the same as in the case of Bertha Kerwin, Administratrix, v. William Kerwin, 204 S. W. 922, decided concurrently herewith. The parties are the same; the difference being that plaintiff here sues in her own right, and in the other case in her representative capacity. What we have said in that case is largely decisive of this. The plaintiff had judgment, and the defendant appeals.

No barrier to the court's jurisdiction is present here, since the plaintiff sues in her own right, and not for the benefit of deceased's estate. She occupies a different relation to the deceased than do the heirs, and is the party defrauded by the gift of the property in question. The defendant does not and could not challenge the court's jurisdiction nor the plaintiff's right to attack this fraudulent conveyance, if such it is. The defendant practically concedes plaintiff's right to recover here provided the gift by the father to the son was a gift causa mortis, which he says means:

"(1) That the conveyance was without consideration; (2) made during the last illness: (3) in the expectation of death at an early date; and (4) intended to have its effect after the donor's death."

Much stress is laid on the failure to prove that the gift was made "during the last illness," but we think the adjudicated cases show that this means no more than, and is only another way of stating, the essential requirement that the gift be made in contemplation of an early death. If a man is sentenced to face a firing squad, and in contemplation of that event gives away his property to defraud his wife of dower, it would certainly be void, though not done "during his last illness." The law is well expressed in Stone v. Stone, 18 Mo. 392, quoted in Newton v. Newton, 162 Mo. 173, 187, 61 S. W. 881, thus:

"Although dower is given in personal estate by our statute, yet it was not thereby intended to restrain the husband's absolute control of it during his life, to give and dispose of as he wills, provided it he not done in expectation of death, and with a view to defeat the widow's dower. The husband may do as he pleases with his personal property, subject to this restriction. After the enjoyment of the property, in the most absolute manner, during his entire lifetime, the law will not permit him, at the approach of death, and with the view to defeat his wife's right of dower, to give it away. If such a disposition was allowed, the efficacy of the statute conferring dower in personalty would depend on the whim and caprice of the husband."

Or, as said in Rice v. Waddill, 168 Mo. 99, 118, 67 S. W. 605:

"We cannot avoid the conclusion that this sudden and unusual exhibition of generosity was the result of his expressed conviction that his days were numbered, and, being thus warned of the approach of death, he determined to distribute the estate, which he could not hope to enjoy much longer. This was essentially a disposition by will of his property within the meaning of the statute reserving the widow her dower, and meets all the demands of the rule that to avoid a conveyance it must be made in expectation or...