Klenke v. Koeltze

• Decision Date: 31 October 1881
• Citation: 75 Mo. 239
• Parties: KLENKE v. KOELTZE, Appellant.
• Court: Missouri Supreme Court

75 Mo. 239

KLENKE

v.KOELTZE, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Osage Circuit Court.--HON. A. J. SEAY, Judge.

REVERSED.

Smith & Krauthoff for appellant.

Belch & Silver for respondent.

HENRY, J.

This suit was originally commenced by C. G. Holtschneider in the circuit court of Osage county, to charge certain real estate alleged to be the sole and separate property of Emilie, wife of August Koeltze, with the payment of a promissory note executed by her and her husband, in March, 1868. The execution of the note was admitted, but in her answer she denied that she had any sole or separate estate in any of the real property described, and alleged that she executed the note as the surety of her husband, while under coverture. August pleaded his discharge in bankruptcy, and no further steps were taken against him. Holtschneider and said Emilie both died during the pendency of the suit, and it was revived in the name of his administrator, against the executor of her last will and testament. It was proven that the note was given for property purchased by August Koeltze, and admitted that the property sought to be charged was, after her marriage, conveyed to Emilie by a general warranty deed in ordinary form, without any words therein creating a separate estate.

Plaintiff then introduced as evidence, against defendant's objection, the following instrument of writing: “This indenture of two parts made this 22nd day of October, A. D. 1857, by and between August Koeltze, of the first part, and Emilie Von Beck, of the second part, both parties being residents of Cole county, and State of Missouri, witnesseth: That, whereas, a marriage is intended to be solemnized between the said parties of the first part and parties of the second part. That the parties of the second part doth reserve and have it distinctly understood that the amount of $3,000, now before solemnization, or after, being or coming into the hands of said parties of the second part, and of any personal or real estate, shall be reserved, kept and used to any purpose by the parties of the second part, now before, or after, solemnization, and that the parties of the second part shall have the full power to take the whole, or a part of said amount at any time and dispose of, without any interference of the parties of the first part, or his assigns, heirs or administrators; and for a more and particular understanding, the parties of the second part shall, without any trouble whatsoever, molestation, private or lawful, for the parties of the first part, his heirs, assigns or administrators, be the only owners of the amount aforesaid specified, and shall have full power, control in all respects, to dispose, give away or otherwise act with said amount according to the pleasure of the parties of the second part.

In witness whereof, we have set our hands and seals this, the 22nd day of October, A. D. 1857.

A. KOELTZE,

[Seal.]

EMILIE VON BECK,

[Seal.]

Signed and sealed in presence of:

HERMAN FEHRMAN.

J. C. JUSTUS CRUMBIGGI.

Filed January 21st, 1858.

G. A. PARSONS, Clerk.”

It was admitted that Henry Klenke was administrator of Holtschneider's estate, and that August Koeltze was executor of the last will of Emilie Koeltze. This was all the evidence, and the court thereupon found for plaintiff, and rendered judgment that plaintiff have and recover of the said executor of the last will of Emilie Koeltze $376.56, with interest, etc., and that the same be a charge upon said land, and that the clerk of the court certify a copy of the judgment to the county court of Osage county, having probate jurisdiction, for allowance and classification against the estate of said Emilie Koeltze, deceased.

1. PRACTICE: revival of suit: proper party.

It is contended by appellant's counsel that the judgment is erroneous, because, after the death of Mrs. Koeltze, the suit was not revived against any one but the executor of her will, and that the devisees to whom her lands were devised, should have been parties. The statute requires a suit, to which one of the parties dies, to be revived in favor of, or against, the representative of such party. Proper steps were taken under the statute to revive this suit against the legal representative of Mrs. Koeltze, and no objection, or suggestion, was made by the attorneys representing her, and after her death, her estate, that the executor was not such representative. The court determined that he was such representative. The land might have descended to heirs, or been devised, either to the executor or other persons, and if the executor was not the legal representative, a suggestion to that effect should have been made when steps were taken to revive the suit. It does not appear that the executor is not the devisee, and after standing by, and virtually conceding, throughout the trial, that he was the testator's representative as to these lands, it is now too late to raise the objection. Legal representatives are persons claiming title from a former owner of lands, whether by purchase or descent. Bryan v. Wear and Hickman, 4 Mo. 111; In re Guenzler, 70 Mo. 40.

2. MARRIED WOMAN'S SEPARATE ESTATE: evidence.

The principal question in this case is, whether Mrs. Koeltze had a separate property in these lands. Certainly, looking alone to the deed conveying them to her, she had no separate property, and the appellant's counsel contend that we are restricted, in determining whether she had a separate property in the lands, to a consideration of that deed alone, and in support of that view rely upon the cases of Paul v. Leavitt, 53 Mo. 598, and Schafroth v. Ambs, 46 Mo. 580. In Paul v. Leavitt, the evidence relied upon to establish a separate property of the wife in the land in controversy in that case, conveyed to her by deeds in the ordinary form without any words creating a separate estate, was, that the money of the wife was paid for the lands, and that the deeds were taken in her name in consequence thereof, and that her husband had acted as her agent in buying and selling lands, and that when he sold her lands he used the same money in buying others, and that the title was always taken in her name. In passing upon the question, the court, Wagner, J., observed: “The property was conveyed to her by deeds of general warranty, in the usual and ordinary form. They vested in her a title in fee, and that was all. The husband clearly had a marital interest in the property, and, therefore, there could be...