Leete v. State Bank

• Decision Date: 14 March 1893
• Citation: 115 Mo. 184,21 S.W. 788
• Parties: LEETE v. STATE BANK OF ST. LOUIS et al.
• Court: Missouri Supreme Court

21 S.W. 788

115 Mo. 184

LEETE v. STATE BANK OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 2.

March 14, 1893.

CONSTRUCTION OF STATUTE — OPERATION AND EFFECT — CONSTITUTIONAL LAW — RETROSPECTIVE LAWS — WIFE'S SEPARATE PROPERTY — RIGHTS OF HUSBAND — ESTOPPEL — COMPETENCY OF WITNESS.

1. Act March 25, 1875, p. 61, (Rev. St. § 3296,) which provides that all personal property belonging to any woman at marriage shall be and remain her separate property, and under her sole control, but that the act shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife: provided, that said personal property shall not be deemed to have been so reduced by his use or care thereof unless, by the terms of said assent, in writing, full authority shall be given to the husband to sell, incumber, or otherwise dispose of the same, for his own use or benefit, is not retrospective, since statutes are not so construed unless the intention of the legislature is clearly expressed, and the language employed admits of no other construction.

2. Plaintiff's father died in 1870, leaving her as one of the distributees of his estate. In 1871 she married defendant L. In 1876-77 certain money was paid to her husband on account of her share in the estate. This he deposited in his own name, and in 1877 invested a part thereof in certain corporate stock, taking the certificate thereto in his own name. The wife permitted the stock to so stand for some 12 years. The above act was passed in 1875. Held, in proceedings by the wife to compel a transfer of the stock to her name on the corporate books, and for an accounting for dividends declared on the stock, that by her acts she was estopped, as to the husband's creditors, from claiming the stock as her separate property, even if the act of 1875 was retrospective in its operation.

3. In such proceedings the husband was a competent witness to prove that he was the agent of his wife, under Rev. St. § 8922, which provides that "no married man shall be disqualified as a witness in any such civil suit or proceeding prosecuted in the name of or against his wife, whether he be joined with her, or not, as a party, when such suit or proceeding is based upon, grown out of, or is connected with, any matter of business or business transaction, where the transaction or business was had with, or conducted by, such married man, as the agent of his wife." Williams v. Williams, 67 Mo. 661, and Wheeler v. Tinsley, 75 Mo. 458, disapproved.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Proceedings by Cordelia H. Leete against the State Bank of St. Louis and James M. Leete to compel defendant bank to transfer to her certain shares of stock standing on its books in the name of her husband, and to account to her for dividends declared on such stock. Judgment for plaintiff. Defendant bank appeals. Reversed.

The other facts fully appear in the following statement by SHERWOOD, J.:

The plaintiff, by this equitable proceeding, instituted January 15, 1889, sought to compel the defendant bank to transfer to her 15 shares of its stock, then standing on its books in the name of her husband, James M. Leete, defendant, and also to account to her for dividends declared thereon, alleging that such shares were purchased by defendant James M. Leete with money which came to her by the bequest of her father in July, 1876, and January, 1877, and that, with some of the money thus bequeathed to her, her said husband, on the 8th day of February, 1877, bought said stock for plaintiff, but, without her consent in writing, caused the certificate thereof to be made out in his own name. The answer of the defendant bank, except that portion exscinded by the demurrer, was as follows: "This defendant admits its corporation and change of name, as in the petition alleged, and further admits that plaintiff, at the time of her marriage with defendant James M. Leete, was entitled to a large amount of property under the will of her father, the late James Harrison, but denies each and every other allegation in said petition contained, and not hereinafter admitted." The answer of the defendant Leete is an admission of the allegations of the petition. The referee, John W. Dryden, to whom were referred all the issues in the cause, made a report in which he found the facts as follows: "Plaintiff is the daughter of James Harrison, who died in 1870. He left a will, of which Edwin Harrison was executor, and under which plaintiff was a distributee or legatee. She and defendant Leete intermarried in 1871. On July 18, 1876, said executor paid to defendant Leete, on account of plaintiff's share in her father's estate, as a distributee under said will, the sum of $17,000; and on January 24, 1877, he also paid to him, on account of her said share, the further sum of ($10,755) ten thousand seven hundred and fifty-five dollars. Both sums were paid to him by means of bank checks drawn by said executor upon the Mechanics' Bank of St. Louis, payable to the order of defendant Leete. Both said checks were collected by said defendant, and within one or two days after the times of their respective payments to him, as stated above, the proceeds of them, except $755 out of the payment of $10,755, were deposited by him in the said Mechanics' Bank, to his own credit, in an account kept by him with said bank in his own name. Up to February 15, 1877, said defendant had deposited no moneys in said Mechanics' Bank, except said two sums of $17,000 and $10,000, above mentioned. On February 8, 1877, said defendant purchased of the State Savings Association fifteen shares of its capital stock, of the par value of $50 per share, at the total price of $1,515, and on said day paid to it said price out of said moneys so deposited by him in said Mechanics' Bank, by giving to him a check in its favor with his own name, and drawn on said bank, which check said bank paid on February 9, 1877. Said defendant Leete, in buying said stock, took from said Savings Association a certificate of the ownership of it in his own name, only, and has ever since held said certificate, unassigned to the plaintiff. Said certificate bears date February 8, 1877, is numbered 983, and certifies that James M. Leete is entitled to fifteen shares of the capital stock of the State Savings Association, transferable only on the books thereof, in conformity with the articles and by-laws of said corporation, and upon return of said certificate. Before the beginning of this suit, and in the years 1883, 1885, 1887, and 1888, there had been declared upon said stock nine dividends, of $60 each, amounting together to $540, which had not been at any time paid to plaintiff or to defendant Leete; and, since the beginning of the suit, two other dividends, of $60 each, — one of May 31, 1889, and the other on November 30, 1889, — have been declared thereon, which are also unpaid. Said dividends so unpaid, together with interest computed upon those declared before the beginning of the suit, from the time it was brought, and upon those declared since it was brought, from the times they were severally declared, amount now to $720.65; and said shares are now of the value of $2,525. Plaintiff at no time gave defendant Leete any authority, in writing, to dispose, for his own use or benefit, of any of the moneys so paid to him by said executor on account of her share in her father's estate, after March 25, 1875, nor in any way assented, in writing, to his reducing any of them to his possession. Respecting the averment in the petition that the purchase of stock alleged therein was made for account of plaintiff, I do not find that the evidence, outside of such conclusions as may be drawn from the facts above found, is sufficient to sustain it. If, from those facts, it can be concluded that the moneys with which said stock was bought were plaintiff's separate property, and were at the time of its purchase in said defendant's hands as her agent or trustee, then it will follow that the purchase was made for her account. But if, from them, the conclusion must be drawn that they were his moneys, and not hers, then it cannot be found that the purchase was made for her account by him, as her agent or trustee, unless there be other evidence of his agency or trusteeship for her in that behalf, and there was no such other evidence. Said defendant himself testified on her behalf that he bought the stock for her account, but there was no evidence that she ever requested him, or in any way made him her agent, to so buy it for her. If the moneys with which he bought it were his, then his buying it therewith for her account, without her request, was nothing more, in effect, than a purchase with an intent to make to her a gift of it, or of the money paid for it. A purchase for her account, in that sense, in order to avail to establish a trust in her favor in the stock, ought, it seems to me, to be proved by clear and convincing evidence, not only of the intent existing at the time of the purchase, but also of the intent being carried out through a delivery of the gift, or some act equivalent thereto, or through some express declaration of a trust, made before the beginning of the litigation, and this proof was not made. I therefore do not here find as a fact that the said purchase of stock was made for account of plaintiff, but for the determination of the issue made, as to the averment that it was so made, as well as of the other issues, confine myself to the above-found facts, and the conclusions to be drawn therefrom." Upon these bases of facts the referee made and reported certain conclusions of law, to the effect that the plaintiff was not entitled to recover, and recommended that her petition be dismissed. Thereupon the plaintiff filed numerous exceptions, which the trial court sustained, as to conclusions of law, but sustained and confirmed the report of...