Rice v. Waddill

• Decision Date: 04 February 1902
• Citation: 67 S.W. 605,168 Mo. 99
• Court: Missouri Supreme Court
• Parties: RICE v. WADDILL et al.<SMALL><SUP>†</SUP></SMALL>

67 S.W. 605

168 Mo. 99

RICE v. WADDILL et al.^†

Supreme Court of Missouri, Division No. 2.

February 4, 1902.

CONVEYANCE IN FRAUD OF DOWER — TESTAMENTARY DISPOSITION — EVIDENCE OF FRAUD — OBJECTIONS — COMMUNICATIONS BY HUSBAND — LETTERS — RIGHT TO EQUITABLE RELIEF.

1. Under Rev. St. 1899, § 2950, providing that, if a woman by agreement prior to marriage receive any estate expressed to be in lieu of dower, it shall bar her right of dower, the instrument conveying such estate must show on its face that the estate is in lieu of dower.

2. Deceased was over 70 years of age, had had a stroke of paralysis, was ruptured, had varicose veins, complained that pains in his head were killing him, and said that he did not expect to be alive at the end of the year. He married in February, disposed of his property in July and August, and died in October. Held, that the gifts were made by defendant "in his last sickness," and were a testamentary disposition, within the meaning of the statute reserving the wife her dower.

3. After his engagement to marry plaintiff, and just before the marriage, deceased secretly delivered deeds of all his lands to his children, excepting a small property which he gave to plaintiff, and the rents of which deceased continued to receive. Subsequently deceased went to Quincy, Ill., ostensibly for medical treatment, but during his absence went secretly to Chicago, where he disposed of his interest in an estate at that place worth $70,000 for $40,000, which he distributed among his children by mailing drafts to them from that place. Deceased had never before shown generosity to his children, and these gifts were made in the belief that he had not long to live, and he died soon thereafter. Held, that the gifts were void, as in fraud of plaintiff's dower right.

4. It was immaterial, as affecting a gift by a husband to his children by a former marriage in fraud of the dower right of his second wife, that the husband had promised the first wife to give the property to their children; such promise being without consideration and not enforceable.

5. Where defendants, forewarned by plaintiff's counsel that he would not permit plaintiff to testify unless her deposition was taken in good faith, proceeded to take her deposition, and did not file it, and did not produce it on trial, though admitting that they had it, there was a waiver of her incompetency as a witness, and the court properly permitted her to testify.

6. An objection to evidence merely as incompetent, irrelevant, and immaterial is properly overruled as not specific.

7. In an action by a surviving wife against the voluntary grantees of the deceased husband to recover property alleged to have been conveyed by the husband in fraud of plaintiff's dower right, to the knowledge of the grantees, letters of the husband to the wife containing evidence that he was clandestinely conveying his property were admissible in her behalf.

8. A petition by a surviving wife for an accounting of moneys given by the husband to his children for the alleged fraudulent purpose of defeating the wife's dower rights, and to set aside as fraudulent a conveyance of real estate to the children secretly made by the husband on eve of his marriage to plaintiff, stated a cause for equitable relief.

Appeal from circuit court, Adair county; Nat. M. Shelton, Judge.

Bill by Carrie V. Rice against Augusta Waddill and others. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit in equity by plaintiff, who is the widow of Columbus T. Rice, deceased, against the defendants, who are a son-in-law and the children and grandchildren of said Columbus T. Rice, for an accounting of the moneys given by said Columbus T. Rice to these defendants for the alleged fraudulent purpose of defeating her dower right therein, and to set aside the conveyance of certain real estate to certain of said defendants, charged to have been made by said Rice secretly, and with a view to defraud her of her dower therein, on the eve of his marriage to plaintiff, and to declare a trust therein for plaintiff, and for general relief. The answers deny the allegations of the petition, and set up a marriage contract by which said Rice was to convey certain real estate to plaintiff and give her certain moneys in lieu of her marital rights in his property. The facts developed are substantially the following: Columbus T. Rice and the plaintiff, Carrie V. Rice, were married about 6 o'clock on the evening of February 24, 1897, at Kirksville, Adair county, in this state. Plaintiff was at that time a widow of about 36 years of age. Columbus T. Rice was a widower past 70 years of age; his first wife having died in March, 1896. The defendants Charles Rice, Edward A. Rice, Mary L. Rice, and Augusta Waddill are the children of Columbus T. Rice by his first marriage. Defendant James E. Waddill is the husband of Augusta Waddill. Defendants Annie M. Rice, Catherine Rice, and Francis Rice are the children of Edward A. Rice. The plaintiff and Columbus T. Rice became engaged to marry in October, 1896. At the time of the engagement, Columbus T. Rice was reputed to own and did own real and personal property in Adair county of the value of from $12,000 to $15,000, and a fifth interest in the estate of a deceased brother in Chicago, Ill., of the value of $75,000. At the time of his death his estate inventoried property of the value of $2,319.32, $325 of which was a note on his son Edward A. Rice, who was insolvent. After their marriage plaintiff and Columbus T. Rice lived happily together until some time in May, 1897. About this time Frank Grant, a nephew of Columbus T. Rice, visited the latter, and during this visit Columbus T. Rice and said Frank Grant entered into a contract by which said Columbus T. Rice sold to said Grant his undivided one-fifth interest in the estate of his deceased brother, James H. Rice, for $40,000, $100 of which was to be paid cash, and the balance, $39,900, in 40 days from May 13, 1897; and, if not then paid, the $100 was to be forfeited by said Grant as liquidated damages. This option was afterwards by mutual consent extended for 40 days from June 22, 1897. This contract was finally executed and consummated on July 7, 1897, at Chicago, Ill. To this original option contract Charles Rice, Mary L. Rice, and Augusta Waddill, children of Columbus Rice, were witnesses, and signed the same as such; but plaintiff knew nothing of said contract or its execution, and George Rice, a brother, who owned an equal share in the estate of the deceased brother, James H. Rice, was kept in ignorance of said trade. On July 7, 1897, Columbus T. Rice received the $40,000 from Grant, $15,000 of which was paid out of money received from the executors of James H. Rice out of the share of Columbus T. Rice. On the same day Columbus T. Rice disposed of said $40,000 as follows: He gave his son Charles Rice $8,000; his daughter Mary Rice $8,000; Augusta Waddill, a daughter, $8,000; and the balance he deposited in a Chicago bank on a time deposit for one year; but on August 16, 1897, he gave his son-in-law, James Waddill, $7,531.08, and Charles Rice, his son, $8,000, out of said time deposit. All these gifts were by drafts purchased in Chicago, and sent by mail to the said donees in their own names. Columbus T. Rice, however, enjoined upon three of his children to whom he sent said drafts, to wit, Charles, Mary, and Augusta, that they should each expend $1,800 of the amount sent him or her for the benefit of his son and their brother Edward Rice. This trust they executed by purchasing for $3,960 a farm selected by Columbus T. Rice, and caused the same to be conveyed to said Edward Rice's children, but reserving the use, benefits, and profits thereof to Edward Rice during his natural life. On the 11th of August, 1897, Columbus T. Rice also gave James E. Waddill, his son-in-law, $1,722, and to his grandson Ovid Waddill $300, in bank stock. By warranty deed dated February 9, 1897, Columbus T. Rice conveyed 160 acres of land in Adair county to his grandchildren, the children of Augusta Waddill and Charles Rice, for the nominal consideration of $500 and love and affection; and on February 24, 1897, he deeded to his children Mary and Charles Rice and Augusta Waddill two lots in the city of Kirksville. These deeds were delivered to his son-in-law, James E. Waddill, a few hours before his marriage to plaintiff, on February 24, 1897, but were not recorded until July 2, 1897. His bank account in Kirksville showed a good balance until July, 1897, when it dwindled to $2.29, — the balance which passed to his administrator when he died, in October, 1897. In 1897 Columbus T. Rice was past 70 years of age. That he was weak, feeble, and slightly paralyzed, had varicose veins, and was constantly under the care of physicians, does not admit of doubt, under the evidence in this record. Mrs. Kinsel testified: "In March [1897] he said he didn't think he was going to live long. He was complaining of his head. Said it was killing him. Said he could see dark things before him all the time, and that it was a bad sign." Mr. Ringo, his banker and friend, testified: "I regarded him as a feeble old man ever since he had that stroke of paralysis. I don't think he ever did or would recover from that stroke." His son-in-law and children testified he had a stroke of paralysis, and had been ruptured, had varicose veins, and had to be assisted across the street. He was quite feeble. In July, 1897, he spoke of the death of his brother, and said two or three of the family had died within the last year, and he did not expect any of them would be alive in a year from then. About the first days of July, Columbus T. Rice went to Quincy, Ill., ostensibly for medical treatment. On July 6th he wrote to his wife, the plaintiff, from Quincy, as follows: "My Dear Wife: We arrived here safe. I have been to see the doctor. He wishes me to stay here a few days...