Moran v. Stewart

• Decision Date: 18 March 1903
• Citation: 173 Mo. 207,73 S.W. 177
• Parties: MORAN v. STEWART.
• Court: Missouri Supreme Court

73 S.W. 177

173 Mo. 207

MORAN v. STEWART.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

HUSBAND AND WIFE — ANTENUPTIAL CONTRACT — CONSIDERATION — JOINTURE — RENUNCIATION— CONDITION SUBSEQUENT.

1. Under Rev. St. 1899, § 2951, providing that, if any contract of jointure is made before marriage and during the infancy of the wife, the widow may, at her election, renounce such jointure, and have dower, an antenuptial agreement of jointure barring dower was not subject to renunciation by the widow where she was not an infant at the time of its execution.

2. Where an antenuptial contract of jointure between two persons contemplating marriage contained a provision for the intended wife's support only during widowhood, and not for life, it was insufficient, either as a legal or equitable jointure, to bar dower.

3. The limitation of a provision for the intended wife's support in an antenuptial contract to widowhood only was not a condition subsequent, so as to render the contract valid as jointure, as such condition operates only on an estate already vested.

4. Where, at the execution of an antenuptial contract between an intended husband and wife, the intended husband owned 606 acres of land, in which the wife would have been entitled, under Rev. St. 1899, § 5246, at his death, to quarantine, homestead, and dower, or in lieu of dower to a child's share, which would have been one-third of the estate, there being two children, and the wife owned no property except her personal apparel, her agreement waiving all of such rights for the control, use, rents, profits, and possession of the homestead and plantation appurtenant thereto, consisting of 106 acres, for life or widowhood, for the consideration of the right to retain her property which she then had or might thereafter acquire, was not supported by a sufficient consideration, and was, therefore, insufficient to bar her dower.

5. A widow, by remaining in the mansion house given her by an antenuptial contract in lieu of dower, which was not supported by a sufficient consideration, until her dower was assigned did not elect to accept the provisions of the contract in lieu of dower.

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

Suit by Angie Moran against Samuel Stewart. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is a suit for dower by the plaintiff, the widow of David Moran, who died March 13, 1892, testate, seised of an estate of inheritance in the land, to wit, the S. E. quarter of section 29, the S. W. quarter of section 28, the W. half of the S. E. quarter of section 28; the S. W. quarter of the N. W. quarter, and the S. W. quarter of the N. E. quarter, and the north half of the S. E. quarter of the N. E. quarter of section 28, township 60, range 34—containing 500 acres, more or less. Four thousand dollars damages for detention of dower are also claimed. The defendant is son of the deceased, adopted by deed dated April 17, 1889, which was long prior to his marriage to the plaintiff.

The defense is: That, in addition to the lands described in the petition, David Moran owned certain other lands described, amounting to 106 acres. That on February 5, 1891, being 30 years old, and David Moran being 70 years old, and they two contemplating marriage, entered into the following antenuptial contract:

"Marriage Contract.

"Article of agreement by and between David Moran, party of the first part, and Angie Fox, party of the second part, this 5th day of February, 1891. Witnesseth, that whereas, said parties contemplate entering into the marriage relation with each other. And whereas, each of said parties own property in their own right.

"Now, therefore, in consideration of the said contemplated marriage, it is mutually agreed that the said party of the second part is to retain as her absolute property free from any claim or right of her said husband, all the property, real and personal, which she now has or may hereafter acquire by inheritance or otherwise; that her said property shall not in any way become liable for her support while she shall remain the wife of the said party of the first part; that she shall have the right to sell, assign, transfer, convey or dispose of by will or otherwise of any or all of her said property as she may deem best.

"It is further mutually agreed, in consideration of said marriage that the second party waives and relinquishes all her marital rights under the laws of this state, and waives, releases, and quitclaims all her right of dower and homestead in all the property both real and personal which the party of the first part now owns or may hereafter acquire or own, and all claims for support, maintenance or dower and homestead which she would have against the estate of the said David Moran after his death in the event of her surviving him as his widow.

"It is further mutually agreed in consideration of said marriage and of the premises aforesaid, that said second party shall have the control, use, rents and profits and possession of the real estate hereinafter described, after the death of the said David Moran (if she survive him) during her life or as long as she shall remain his widow, to-wit: [Here follows a description of the 106 acres of land before referred to.]

"It is mutually agreed that said second party shall accept said interest in said real estate as full satisfaction of and in lieu of all claim for dower and homestead in any or all of the real estate of which said David Moran is now seized in law or equity, or may at any time become seized during coverture, he may have at death.

"That said David Moran shall have absolute control of all his property of every kind and description, except said 106 acre tract aforesaid, free from any claim of his said wife and sell, assign, transfer, convey and dispose of the same without her joining in any deed therefor. That he shall sell and convey the same by his separate deed or dispose of the same by will or otherwise as he may deem best. That it shall not be necessary for said second party to join in any deed, contract, or conveyance he may take to any real estate except the tract herein described. That said Angie shall pay the taxes and insurance on said real estate herein described after the death of the said David Moran (if she shall survive him) as long as she shall remain the widow of said David Moran and use said real estate under this contract, and her right to the use of said real estate shall terminate with her death or widowhood.

"Given under our hands and seals this 5th day of February, 1891.

                      "[Signed]   David Moran.   [Seal.]
                      "[Signed]   Angie Fox.     [Seal.]"
                

Which said contract was duly acknowledged.

The defendant further pleads that the plaintiff accepted the provisions of the antenuptial contract, and after the death of her husband she entered upon the possession of the land therein described, and has ever since occupied, used, and enjoyed it, and hence she is concluded and estopped from claiming dower in the land described in the petition. The defendant further pleads that the plaintiff has received $3,000, being one-third of the personal estate, and that the rents, issues, and profits of the 106 acres are reasonably worth $500 a year. The defendant further pleads that within one year after the death of her husband she elected to take one-half of the real estate, subject to the payment...