Ragsdale v. Achuff
| Decision Date | 07 April 1930 |
| Docket Number | No. 28405.,28405. |
| Citation | 27 S.W.2d 6 |
| Parties | MARY E. RAGSDALE, JOHN W. RAGSDALE, JAMES E. RAGSDALE, LELA SPENCER, SALLIE ELLER and BIRD SELSOR v. DAISY ACHUFF, and DAISY ACHUFF, Executrix of Estate of ED R. ACHUFF, Appellants. |
| Court | Missouri Supreme Court |
Appeal from Grundy Circuit Court. — Hon. L.B. Woods, Judge.
AFFIRMED.
L.B. Gillihan and Nat G. Cruzen for appellants.
(1) An action for an allowance of a claim for money only against an estate of a decedent in the circuit court, an issue of fact, must be tried by a jury, unless a jury be waived, in the manner prescribed by the statutes. Secs. 1398, 1400, R.S. 1919; Art. 2, Sec. 28, Constitution of Missouri; Kansas City v. Smith, 238 Mo. 323. (2) The statutory rights and allowance given a widow by Secs. 105, 106, 107, R.S. 1919, and amendments thereto, are prior and paramount to claims of creditors of every kind. Estate of Ulrici v. Johnson, 177 Mo. App. 584; Glenn v. Glenn, 88 Mo. App. 442; Parson v. Harvey, 281 Mo. 420; Brown v. Keen, 201 S.W. 621. (3) An execution cannot be issued on a judgment of a circuit court on a demand against a deceased person, but such judgment must be presented and classified by the probate court. Secs. 1629, 188, R.S. 1919; Ryans v. Boogher, 169 Mo. 673; Brown v. Woody, 64 Mo. 547; Wernike v. Wood, 58 Mo. 352; Bick v. Carter, 123 Mo. App. 311; Miller v. Doan, 19 Mo. 650; Hardin v. McCanse, 53 Mo. 260. (4) The death of a party to a deed renders the other parties to such deed incompetent to testify in an action involving such transaction or the property to which it relates. 40 Cyc. 2298, sec. 4; Gibbs v. Haughowout, 207 Mo. 389; Smith v. Smith, 201 Mo. 533; Wood v. Matthews, 73 Mo. 477; sec. 5410, R.S. 1919; Chapman v. Daugherty, 87 Mo. 617; Hughes v. Israel, 73 Mo. 538; Brown v. Patterson, 224 Mo. 648. (5) The fact that the witness Eller was not a party to the suit on trial, did not render him a competent witness. Patton v. Fox, 169 Mo. 97; Baker v. Reed, 162 Mo. 355. (6) When the wife becomes incompetent to testify by reason of the death of the other party to the contract, the husband of such incompetent wife, is also incompetent to testify in regard to such contract, or any matters relating thereto. Davis v. Wood, 161 Mo. 29; Forrister v. Sullivan, 231 Mo. 378; Tucker v. Gentry, 93 Mo. App. 656; Bieber's Admrs. v. Boeckman, 70 Mo. App. 506; 40 Cyc. 2282. (7) "Creditors cannot complain of a voluntary conveyance of a homestead as being fraudulent as to them in equity or at law." Bank of Versailles v. Guthrey, 127 Mo. 193. (8) "There may be a homestead in land in the name of the wife." Peake v. Cameron, 102 Mo. 568; Rouse v. Caton, 168 Mo. 296. (9) "A deed to the wife made by the husband in consideration of marriage is as good as if made for any other consideration." 18 C.J. 165, sec. 159; 21 C.J. 1246; 30 C.J. 631; Bank v. Read, 131 Mo. 553; Welch v. Mann, 193 Mo. 304: Wrench v. Robertson, 175 S.W. 587. (10) "A conveyance by a husband to his wife, if for a consideration, will be good as against third parties." 30 C.J. 689.
Fry & Hollingsworth, John C. Leopard and Dean H. Leopard for respondents.
(1) A person may make a valid contract to dispose of his property by will in a particular way, and such contract will be enforceable, if he has the capacity to contract, and if the contract is fair and equitable, and possesses the usual essentials of a contract. Sharkey v. McDermott, 91 Mo. 647; Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Merrill v. Thompson, 252 Mo. 714; Heron v. Teisch, 240 Mo. 22; McFall v. Hampe, 267 S.W. 54; Campbell v. McLaughlin, 205 S.W. 18. (2) The fact that a wife is incompetent to testify by reason of the death of the other party to the contract does not render her husband incompetent to testify in regard to such contract, or matters relating thereto. Laws 1921. sec. 5415, p. 392; Hughes v. Renshaw, 282 S.W. 1020; Miller v. Smith, 275 S.W. 770. (3) The witness Eller was neither a necessary nor a proper party to a contract of his wife conveying property coming to her by inheritance; and he was not, therefore, rendered incompetent as a witness to prove such contract, even though he manually signed the same, his signature to such contract having no contractual effect. Secs. 7323, 7328, R.S. 1919; Brooks v. Barker, 228 S.W. 805; O'Brien v. Trust Co., 5 S.W. (2d) 74; Farmers Bank v. Hageluken, 165 Mo. 443; Evans v. Morris, 234 Mo. 177. (4) Where written contract, executed pursuant to prior verbal agreement does not express the entire agreement or understanding of the parties, extrinsic evidence may be received with reference to the matters not provided for in the writing. Greening v. Steele, 122 Mo. 287; State v. Cunningham, 154 Mo. 161; 22 C.J. 1283. (5) Regardless of the validity of the consideration for the deeds, if defendant, prior to the execution of the deeds in June, 1923, had notice of the existence of the contracts sued on, her deed cannot prevail, plaintiff's equity being superior in point of time. She must show both a valid consideration and lack of notice. Mathews v. O'Donnell, 233 S.W. 451; McQuitty v. Steckdaub, 190 S.W. 590; 39 Cyc. 1648; Clark, Equity, secs. 302 to 304; 2 Pomeroy Eq. Jur. (4 Ed.), secs. 683, 691, 753; Young v. Schofield, 132 Mo. 650. (6) The deeds here sought to be set aside recite a nominal consideration and the burden was upon the defendant to show that there was a valuable consideration for them. Snyder v. Free, 114 Mo. 367; Bump. Fraud. Conv. (3 Ed.) 267, 277; Hoffman v. Nolte, 127 Mo. 135; Scharff v. McGaugh, 205 Mo. 344; Edmonds v. Scharff, 213 S.W. 823; Benne v. Schnecko, 100 Mo. 257. (7) The contracts in issue being admitted, the statements of Achuff made after their execution were not against his interest, but were self-serving and incompetent. 22 C.J. 235; Essey v. Bushakra, 252 S.W. 459; Peterman v. Crowley, 226 S.W. 944; Weller v. Collier, 199 S.W. 974; Hollis v. Thales, 103 Ga. 75; Tucker v. Tucker, 32 Mo. 464; Rice v, Waddell, 168 Mo. 99. (8) In order to enforce a parol antenuptial contract, or any contract within the Statute of Frauds on the ground of part performance, the proof as to the existence of a contract and acts of performance in pursuance thereof and solely referable thereto must be clear and convincing. Rogers v. Wolfe, 104 Mo. 1; 1 Story, Eq. Jur., sec. 764; Berry v. Hartzell, 91 Mo. 132, Sittone v. Shipp, 65 Mo. 297; Emmel v. Hays, 102 Mo. 186; Meegan v. Surety Co., 193 S.W. 899; Kirk v. Middlebrook, 201 Mo. 245. (9) The evidence as to sums expended by defendant in the improvement of the real estate, if any, was so vague, indefinite and so grossly inadequate in amount as to be insufficient to support the deeds. Ward v. Stutzman, 212 S.W. 65. (10) Even though the defendant did expend money in improvement, it does not support these deeds and is not the consideration therefor. Nothing is consideration that is not regarded as such by both parties. Defendant may have been motivated by a hope of securing the deeds, but there is a difference between motive and consideration. Ward v. Hartley, 178 Mo. 135; Philpot v. Gruninger, 14 Wall. (U.S.) 570. (11) The husband has no homestead estate in his wife's land, and Achuff, after the death of his first wife, not being the head of a family and no homestead estate surviving, could render the entire property subject to plaintiff's contracts. Keyte v. Perry, 25 Mo. App. 394; Chapman v. McGrath, 163 Mo. 292; Collier v. Porter, 16 S.W. (2d) 49.
By their petition in two counts, the plaintiffs seek, first, to recover the value of certain shares of stock in a corporation, and, second, to have vested in them the title to certain real estate, by virtue of certain contracts entered into by and between them and Ed R. Achuff, deceased. The suit was filed in the Circuit Court of Daviess County, and transferred to the Circuit Court of Grundy County, upon the plaintiffs' application for a change of venue. That court, sitting in equity, found for the plaintiffs on both counts of their petition and rendered judgment accordingly. The defendants have, in due course, perfected an appeal to this court.
In the first count of the petition, it is alleged that Winnie Achuff, a resident of Gallatin, in Daviess County, died childless and intestate, on the ____ day of February, 1917, leaving, as her heirs at law, Ed R. Achuff, her husband, and the plaintiffs, Mary E. Ragsdale, her mother, John W. Ragsdale and James E. Ragsdale, her brothers, and Sallie Eller, Lela Spencer and Bird Selsor, her sisters; that at the time of her death, the said Winnie Achuff owned fifteen shares of stock, of the par value of $100 each, in the Gallatin Granite & Marble Works, a corporation; that on February 21, 1917, after the death of Winnie Achuff, Ed R. Achuff entered into a written contract with the plaintiffs, whereby he agreed, for and in consideration of the transfer to him of the interests of the plaintiffs in said shares of stock, to bequeath, by will, said shares of stock to the plaintiffs, or their heirs, in equal parts, and, in the event he sold said shares of stock, to bequeath the proceeds of such sale, or other property or money of equal value, to the plaintiffs, or their heirs, in equal parts, in lieu of said shares of stock; that he executed a will, in accordance with the provisions of said contract, and delivered it to W.S. Eller, with instructions to present it for probate upon his (Achuff's) death; that, thereafter, he sold said shares of stock and converted the proceeds of such sale into other personal property; that, on January 5, 1918, he married the defendant Daisy Achuff; that, on June 4, 1925, he died, and left surviving him said defendant as his widow; that, upon his death, there was admitted to probate in the Probate Court of Daviess County a certain instrument, purporting to be his last will and testament, by which he bequeathed all of his property to his widow, for and during her natural...
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