Mack v. Heiss
| Decision Date | 31 January 1887 |
| Citation | 3 S.W. 80,90 Mo. 578 |
| Parties | Mack, Executor, Appellant, v. Heiss |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
Reversed.
John G Chandler for appellant.
(1) The plain purpose of the ante-nuptial contract was to completely sever the property interests of the parties. The word "dower" was plainly used, not in a restricted technical sense, but in a broad and comprehensive sense. The instrument was evidently drafted by an inexperienced person and the word "dower" was employed by the parties as expressive of all the wife's rights in her husband's estate. 2 Parsons on Contracts, 500, 501, notes t and n "In order to ascertain the intention of the parties, we must look not only to the words; but to the subject matter of the contract." Perry v. Craig, 3 Mo. 516. In the case at bar the subject matter was the entire property, real and personal, of the parties about to marry. The intent, a complete severance of property interests. "The purport of the instrument is to be gathered from the general tenor of it, and not from any particular clause." Schultze v. Bailey, 40 Mo. 69, 74. The circumstances under which an instrument is made may be looked to, in aid of its construction. The rules of interpreting contracts ought not to be subtile -- are not an art of logic -- but are intended for persons of common understanding -- are plain reason." Gathwright v. Callaway Co., 10 Mo. 663. The terms used in a contract are to be construed according to their obvious meaning, and as generally understood in the community, and not according to their usage among a particular class of men. Pavy v. Burch, 3 Mo. 477-8. (2) The deed released to the executor every right, of whatever kind and in whatever character the widow had or might claim in the husband's estate, and it required no consideration to support it. McFarland v. Baze's Adm'r, 24 Mo. 156. Mrs. Heiss cannot impeach her deed under the issues in this case. The evidence must correspond with the issues and be confined to the point in issue. State v. Roberts, 62 Mo. 388; Buffington v. Railroad, 64 Mo. 246; Coole v. Railroad, 60 Mo. 227; Lester v. Railroad, 60 Mo. 265; Eddy v. Baldwin, 32 Mo. 369; Green v. Gallagher, 35 Mo. 226. A defendant cannot make a defence by his evidence on the trial different from that made by the pleadings. Currier v. Lowe, 32 Mo. 203. No acknowledgment was necessary. She was not a married woman, but a widow -- sui juris -- all her acts binding upon her. She said she could not read the deed, and that it was not read to her. She is flatly contradicted by the magistrate and the executor, and is unsupported by any fact or circumstance. If she were wholly uncontradicted her testimony by itself would not outweigh her acknowledgment. This point has been determined in several cases by this court even against a married woman. It is held that when the only evidence to impeach the certificate of acknowledgment is that of the grantor, the other side is not bound to produce any evidence in reply. Biggers v. St. L. Mut. N. B. Co., 9 Mo.App. 210; Riecke v. Westenhoff, 10 Mo.App. 358; Morrison v. McKee, 11 Mo.App. 594; Bohan v. Casy, 5 Mo.App. 111.
Zach. J. Mitchell for respondent.
A trial of this cause before the circuit court of St. Louis, without the intervention of a jury, resulted in a judgment for defendant, which, on appeal by plaintiff therefrom, was affirmed in the court of appeals. As no report of the opinion of that court, per Thompson, J., has been made, beyond an imperfect statement or digest thereof, which appears in the appendix to 15 Mo.App. 586 and 596, we deem it necessary and proper, in determining this appeal, taken by plaintiff from that decision, to make a fuller statement of the controlling facts in the case.
The plaintiff is the executor of the will of George Heiss, deceased, and the defendant, Mary Heiss, is the widow of said George Heiss, and the action is in the nature of ejectment. The petition states the facts, which show that the premises sued for were the homestead of the said George Heiss, on which he resided at the time of his death, and also contains the usual allegations in the ordinary action of ejectment. The answer of defendant sets up, in appropriate averments, the homestead right as her defence to the action, and it was admitted at the trial that the defendant was the widow of deceased, and was, at the time of his decease, living with him as his wife on the premises, and continues in possession thereof, and that the amount, in quantity and value of said premises, is not greater than she would be entitled to as a homestead, if, under the facts of the case, she is entitled to homestead at all. In 1873, plaintiff's said testator, George Heiss, and defendant, entered into an ante-nuptial contract, which was acknowledged and recorded, by which, in consideration of her agreement to release her claim of dower in his estate, he gives and bequeathes to his future wife, in lieu of dower, the sum of $ 1,000, to be paid to her by his executor or administrator, or legal representative, as soon as convenient after his decease, and agrees to allow her to keep all the property she then possessed, or should acquire, as her separate and individual property, free from his interference, or any claims he might have as husband.
Afterwards, said George Heiss made his will, and the first statement therein, after declaring the making and publishing thereof, is as follows: "I, and my beloved wife, Mary Heiss, have settled our affairs to our own satisfaction, as will be shown by our marriage contract." The plaintiff, Mack, was appointed executor by the will, and, after qualifying as such, advanced and paid to the defendant the sum of $ 1,000, and the defendant thereupon executed the following instrument, which bears date August 3, 1882:
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