Milligan v. Bing

• Decision Date: 30 July 1937
• Citation: 108 S.W.2d 108,341 Mo. 648
• Parties: Ruth Milligan and Cleo Leeka, Appellants, v. Fred E. Bing, Fred E. Bing, Administrator of Estate of Daisy Bing
• Court: Missouri Supreme Court

108 S.W.2d 108

341 Mo. 648

Ruth Milligan and Cleo Leeka, Appellants, v. Fred E. Bing, Fred E. Bing, Administrator of Estate of Daisy Bing

Supreme Court of Missouri

July 30, 1937

Appeal from Caldwell Circuit Court; Hon. Ira D. Beals Judge.

Affirmed.

John J. Robison for appellants.

(1) The court erred in its finding and judgment for the respondent and against the appellant for the reason that the court ignored the Married Woman Statute of Missouri and its construction, which statute and cases construing it concerns the appropriation of the separate property of a married woman without the expressed written consent of the wife, when such conversion is by the husband. R. S. 1929, sec. 3003; McMahon v. Welsh, 132 Mo.App. 593; Hurt v Cook, 151 Mo. 427; Case v. Espenscheid, 169 Mo 215; McGuinn v. Allen, 108 Mo. 403; Davis v. Duncan, 224 S.W. 111; Conqueror Trust Co. v. Craig, 218 S.W. 972. (a) And the fact that said separate funds of the wife were used in the purchase of land and the title to the land was taken jointly in the name of the husband and wife, does not destroy, nullify or render inapplicable the Married Woman Statute above referred to. Johnson v. Johnson, 173 Mo. 119; Jones v. Elkins, 143 Mo. 650; Snyder v. Elliott, 171 Mo. 373; Bointen v. Miller, 144 Mo. 687; McLloyd v. Venable, 163 Mo. 536; Moss v. Ardrey, 169 S.W. 623; Yates v. Richmond Trust Co., 220 S.W. 692; Donovan v. Griffith, 215 Mo. 166. (b) And the knowledge, oral assent, acquiescence or even oral direction on the part of the wife does not comply with, nullify or avoid the statute mentioned above. Jones v. Elkins, 143 Mo. 650; Holman v. Holman, 183 S.W. 623; Powell v. Powell, 183 S.W. 627; 39 Cyc., p. 136. (2) The court erred in basing his finding and judgment upon a presumption of an intended gift by reason of the joint deposit and joint deed, for the law is that in such instance while a gift is presumed in favor of the wife under such circumstances the presumption is exactly opposite as to any presumption in favor of the husband. Wimbush v. Danford, 238 S.W. 460; Thierry v. Thierry, 249 S.W. 946. (3) The court erred in finding against the appellants and for the respondent on the first count of appellants' petition (fraud count), in view of the fact of uncontradicted fraudulent acts on the part of the respondent. Smith v. Walker, 49 Mo. 250; Dawschroeder v. Theas, 51 Mo. 100; Bauer v. Berhenck, 6 Mo.App. 537; James v. Graff, 157 Mo. 402; Graham v. Wilson, 168 Mo.App. 185; Robinson v. Cruzey, 202 S.W. 449; Yates v. Trust Co., 220 S.W. 692; Bernsee v. Robison, 233 S.W. 173. (4) The burden of proof was upon the respondent as his only defense was a gift inter vivos. Tygard v. Fowler, 163 Mo. 672; Spencer v. Barlow, 5 S.W.2d 28; Wilkerson v. Wann, 16 S.W.2d 72. (5) The joint deposit section of the statute does not avoid the Married Woman Statute of Missouri or create a presumption, which presumption overcomes said statute, and this deposit not being in the words of the statute, does not come within the purview of the statute. R. S. 1929, sec. 5400; Miss. Valley Trust Co. v. Smith, 9 S.W.2d 58; Schnur v. Dunker, 38 S.W.2d 282; Ambruster v. Ambruster, 31 S.W.2d 37; Murphy v. Wolfe, 45 S.W.2d 1076. (6) The court erred in permitting the respondent to make denials of testimony which tended to prove the transaction between him and his wife, Daisy Bing, as his wife, Daisy Bing, then being dead, he, being the other party to the transaction, was incompetent to testify. Miller v. Slupsky, 158 Mo. 643; Gooddale v. Evans, 263 Mo. 219; Weiermueller v. Scullin, 203 Mo. 466; Smith v. Smith, 201 Mo. 547; Roberts v. Roberts, 291 S.W. 487; Herndon v. Yates, 194 S.W. 48; Dahchiger v. Stone, 210 S.W. 865; Lins v. Lenhardt, 127 Mo. 290.

Robert Frost and Moore & Moore for respondents.

(1) The act of Daisy Bing in depositing the $ 9000 draft payable to her order into the joint account of Fred Bing or Daisy Bing created an estate by the entirety in herself and husband, and was a completed gift, not inhibited by the Married Woman's Act, Section 3003, Revised Statutes 1929. Murphy v. Wolfe, 45 S.W.2d 1079, 329 Mo. 545; Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081; Yates v. Richmond Trust Co., 220 S.W. 692; Haguewood v. Britain, 199 S.W. 950, 273 Mo. 82; Grott v. Grott, 249 S.W. 55; Larrick v. Heathman, 231 S.W. 975, 288 Mo. 370; Parker v. Staley, 21 S.W.2d 200; In re McMenamy's Guardianship, 270 S.W. 672, 307 Mo. 98; Miss. Valley Trust Co. v. Smith, 9 S.W.2d 58; Roethemeier v. Veith, 69 S.W.2d 931, 334 Mo. 1030. (2) Personal property may be held by the entireties as distinguished from joint tenancy, and this is not prohibited by the Married Woman's Act. Lomax v. Cramer, 216 S.W. 575, 202 Mo.App. 365. (3) After the completed gift was made by Daisy Bing and an estate by the entirety created in herself and Fred Bing, her husband, any property into which these funds could be traced will likewise be held by the entirety. Hence, in taking title to the farm in controversy by the entirety Fred Bing did only that which was required by law. Zahner v. Voelker, 11 S.W.2d 63; Prasse v. Prasse, 77 S.W.2d 1001; Rezabek v. Rezabek, 192 S.W. 107, 196 Mo.App. 673; Ambruster v. Ambruster, 31 S.W.2d 28, 326 Mo. 51; Frost v. Frost, 200 Mo. 474, 98 S.W. 527.

OPINION

Frank, P.J.

Action by appellants, plaintiffs below, to declare a resulting trust in certain real estate, to determine title thereto and for partition thereof. The decree below was for defendant and plaintiffs appealed.

Plaintiffs are daughters and only children of defendant, Fred E. Bing, and his deceased wife, Daisy Bing. Both daughters are married and live in their own home. At the time of the trial one daughter had been married ten years, the other thirteen years. Daisy Bing died intestate in Clinton County, Missouri, on February 21, 1931. The land in question is a 210-acre farm located in Caldwell County. The farm was purchased from one Henry E. Gorrell, for $ 12,600 and title thereto was taken in the name of "Fred E. Bing and Daisy Bing, husband and wife, jointly."

Appellants contend that although the farm stood in the joint name of their father and mother, it was not an estate by the entirety for two reasons, (1) their mother, Daisy Bing, directed their father, Fred Bing, to purchase the farm and pay $ 11,000 of her separate money on the purchase price thereof and take title thereto in her name; that he did purchase the farm, using $ 11,000 of his wife's money to pay on the purchase price, but in violation of her directions fraudulently took title thereto in their joint names, (2) that he appropriated $ 11,000 of their mother's money to his own use by investing it in the farm without her written assent. For both reasons it is contended that he held the land for the use and benefit of his wife during her lifetime, and at her death it descended to her heirs at law.

Respondent contends that he and his wife held title to the land as an estate by the entirety, and at her death he was, and now is the sole owner thereof.

No point is made against the pleadings. They sufficiently present the contentions of both parties.

Numerous points are presented and discussed, but they present but one question. Did husband and wife own and hold the land as an estate by the entirety? If so, at the death of the wife the husband was the sole owner thereof. If not, a trust resulted in favor of the wife during her lifetime, and now to her heirs at law, to the extent that her part of the money furnished bears to the whole purchase price of the land. To that question we address ourselves.

Upon its face, the deed created an estate by the entirety. But regardless of that fact plaintiffs are entitled to contradict the deed by parol evidence showing that it was not the intention of the parties to create an estate by the entirety at the time the deed was made. Plaintiffs are attacking the deed, therefore, the burden of proof is upon them. They will not be permitted to overthrow the deed and establish a resulting trust in the land in favor of the heirs of the wife except upon evidence so clear and convincing as to leave no reasonable doubt in the mind of the chancellor as to the existence of the alleged trust. The rule in such cases is stated by this court in Larrick v. Heathman, 288 Mo. 370, 376, 231 S.W. 975, 976, as follows:

"Upon its face the deed from Dale created an estate by the entirety. If we were confined to that, the end of this case would be in sight. But a resulting trust may be shown by parol proof, and in the face of the deed, if the quantum of proof appears. The burden of proof is upon plaintiffs in this case, if they are allowed to overturn the deed. [Joerger v. Joerger, 193 Mo. l. c. 139, 91 S.W. 918, 5 Ann. Cas. 534; Morford v. Stephens, 178 S.W. l. c. 441.] And such proof must be of a strength that will leave no doubt as to the trust. [Morford v. Stephens, supra; Ferguson v. Robinson, 258 Mo. l. c. 133, 167 S.W. 447.] The intention of the parties at the time the deed was made is a material element in determining the question of trust or no trust; that is to say, the presumption of a trust arising from the fact of one party paying all or a part of the money may be rebutted by the testimony, as well as by the deed. The deed itself may be contradicted, so as to show a resulting trust, if the facts in evidence warrant. The question of the proof required may be gathered from the cases, supra. So in this case it but remains to measure the proof made by plaintiffs by the rule established by these cases as to quantum of proof. Many other cases might be cited, but these will suffice to illustrate the rule."

Since the burden of proof sufficient to overturn the deed is on plaintiffs, we will examine the evidence and determine whether or not t...