Newton v. Newton

• Decision Date: 26 March 1901
• Parties: NEWTON v. NEWTON.
• Court: Missouri Supreme Court

61 S.W. 881

162 Mo. 173

NEWTON v. NEWTON.

Supreme Court of Missouri, Division No. 2.

March 26, 1901.

APPEAL — EXCEPTION — HOMESTEAD — CONVEYANCES IN FRAUD OF MARITAL RIGHTS — DOWER — ELECTION.

1. Ruling on demurrer may be reviewed on appeal without an exception.

2. An exception recited in the record proper does not preserve the matter thus recited, which can be done by a bill of exceptions alone.

3. An ante-mortem conveyance by a husband of his homestead in order to defeat his wife of her dower right is void under Rev. St. 1898, § 3616, debarring the husband from selling, mortgaging, or alienating the homestead in any manner whatever.

4. A conveyance of land or personalty by a husband during his last sickness, and in contemplation of death, without consideration, and for the purpose of defrauding his wife of her marital rights, gives ground for equitable interference.

5. Under Rev. St. 1889, § 4518, entitling a wife to one-half the real and personal estate belonging to the husband "at the time of his death absolutely," equity will enforce the wife's interest in property sought to be conveyed by the husband before his death to defeat her marital rights, though the legal title be not in him at the time of his death.

6. Under Rev. St. 1889, § 4520, entitling the widow of a husband dying childless to elect to take her dower as provided in section 4513, to wit, a one-third interest for life in land of which the husband was seised at any time during coverture, free from debts; or as provided in section 4518, to wit, a one-half interest in all property belonging to the husband "at the time of his death absolutely," subject to debts, — by electing to take under section 4518, the wife does not ratify conveyances made by the husband with the fraudulent intent to cut down her marital rights.

7. A defect in a petition to enforce dower in failing to show that the declaration of election was filed within 12 months after grant of letters, etc., as required by Rev. St. 1889, § 4522, is cured by a statement showing that the husband died less than a year before the commencement of the suit.

Appeal from circuit court, Miller county; D. W. Shackleford, Judge.

Action by Clara Dell West Newton against George W. Newton. From a judgment for plaintiff, defendant appeals. Affirmed.

Moore & Williams and W. M. Williams, for appellant. W. S. Pope and W. M. Lumpkin, for respondent.

SHERWOOD, J.

This was a proceeding instituted in the Miller circuit court to set aside a conveyance of certain lands in Miller county. Leaving off caption of petition, and setting forth its substance and material portions, plaintiff therein states "that she was married to Samuel Newton, now deceased, before any of the dates and times mentioned in this petition, and from and after their marriage was his wife until his death, on the 22d day of December, 1896; that during their coverture, and for a long time prior to the 21st day of November, 1896, the said Samuel Newton was the owner of in fee, and seised and possessed of the following lands situate in Miller county, giving description of such lands, composing about 300 acres, as well as property situate in the town of Eldon (giving description), which lots in Eldon plaintiff and her husband during his lifetime occupied as their homestead, of all which lands and lots plaintiff's husband died seised and possessed; that on the 21st day of November, 1896, while the said Samuel Newton was in his last sickness, and not expecting to live for but a short time, and shortly before his death, he conveyed the aforesaid lands to the defendant for the purpose of defeating, as far as he could, the marital rights of the plaintiff in said property after his death, and that the defendant took and received the conveyance for said property well knowing the reason and intention of the said Samuel Newton in conveying the property aforesaid to him, and with a view to aid her said husband as far as he could in depriving her of her marital rights after his death; that the defendant paid nothing for the said land so conveyed; that there was not sufficient consideration for said conveyance, and the only real consideration was that the defendant, who was the brother of the plaintiff's husband, might take the land discharged, as far as possible, of her marital rights under the law, and that said conveyance was made by her husband and received by the defendant in fraud of plaintiff's rights, and for the purpose of defrauding her out of her marital rights after the death of her husband; that there were no children born of the marriage aforesaid, and that said Samuel Newton died leaving no children or other descendants in being capable of inheriting; that he did not owe anything at the time of his death, nor is his estate, now being administered upon in the probate court of Miller county, Mo., in any wise indebted or incumbered, nor did he owe anything on the 21st day of November, 1896, or prior thereto, or at the time of making the conveyance aforesaid to defendant; that at the time of the conveyance aforesaid her said husband was the owner of a large amount of personal property, of horses, mules, wagons, farming implements, cattle, household and kitchen furniture, money, notes, bonds, mortgages, deeds of trust, and various other kinds of property, and evidences of debt and choses in action, a particular description of which she is now unable to give, but of the value of at least $20,000; that he likewise conveyed to the defendant at the same time, without consideration, and in anticipation of soon dying, and for the purpose of depriving her of her marital rights in his estate after his death, and of defrauding her, by that device, out of the same, and to prevent her from claiming her said marital rights under the provisions of section 4518 of the Revised Statutes of Missouri, and thereby to put the whole of his property, both real, and personal, and mixed, as far beyond her reach as possible, and to impoverish her so that she would be unable to sue for and recover her rights in his property as his widow after his death; that since the death of the said Samuel Newton she has duly filed her election to take dower under the provisions of section 4518 of the Revised Statutes of Missouri of 1889, as required by section 4522 of the said Revised Statutes of the state of Missouri, and filed the same in the office of the probate court of Miller county, Mo., that being the court granting letters of administration on the estate of her husband and having jurisdiction thereof, and also filed her declaration or deed of election in the office of the recorder of deeds of Miller county, Mo., for record; that after the death of her husband, Samuel Newton, the defendant took possession of the real estate aforesaid under the aforesaid fraudulent conveyance to him, and still holds the possession thereof, and she has been by him deforced of her dower and marital rights therein; and she again here charges that the conveyance and all the acts and doings of the defendant and of her said husband in and about the same were a fraudulent contrivance on their part to prejudice her rights; that the said conveyance was made with the avowed design of depriving her of her rightful portion of her husband's estate, to which she was lawfully entitled, and was made with the intention on the part of both the defendant and her said husband of preventing her from electing to take dower in the estate of her husband under the provisions of section 4518, Rev. St. 1889; that her said husband and the defendant took counsel, before the making of said conveyance, how to cut off the plaintiff of her just share of the estate after her husband's death, and how to deprive her of her right of election as aforesaid guarantied to her under the laws of the state; that at the time of the making of said conveyance to the defendant her husband was in a very low condition, with conscious certainty of approaching death, he then having no hope of recovery; that the defendant was well aware of the facts here charged, and of each and all of them, and was a party thereto, and actively participated in all of the frauds and contrivances aforesaid; that she never at any time relinquished her dower or marital rights in said land in any way whatever, either during the lifetime of her husband or since his death. Wherefore she prays the court that it, in consideration of the above facts, adjudge and decree that the said deed aforesaid, which is recorded in the recorder's office of Miller county, Mo., in Book 10, at page 55 thereof, be declared fraudulent as to her, and in fraud of her marital rights as the widow of the said Samuel Newton, deceased; that she be adjudged the owner of a one-half interest in said lands, and that the defendant be deemed and held in law and equity to hold the said...