Roberts v. Walker

• Decision Date: 30 April 1884
• Parties: ROBERTS et al., Appellants, v. WALKER.
• Court: Missouri Supreme Court

82 Mo. 200

ROBERTS et al., Appellants,

v.WALKER.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Buchanan Circuit Court.--HON. J. P. GRUBB, Judge.

REVERSED.

Heren & Son for appellants.

The petition stated a good cause of action. Logan v. Phillips, 18 Mo. 22; Larrabee v. Van Alstyne, 1 John. 307; R. S. §§ 2201, 2202, 2203; 2 Scribner on Dower, pp. 252, 383, 400; Selleck v. Selleck, 8 Conn. 79; Self v. Cordell, 45 Mo. 345; 18 Amer. Law Reg. 202. The personal property in possession of the defendant at the time of the marriage under the uniform and well settled rule of law operated as an absolute gift to the husband of all chattels personal belonging to the wife and, also, of her chattels real, and choses in action if reduced into possession during coverture. Tiffany & Bullard on Trusts, p. 665; Woodford v. Stephens, 51 Mo. 443; Sallee v. Arnold, 32 Mo. 532; Walker v. Walker, 25 Mo. 375; Terry v. Wilson, 63 Mo. 493. The marriage took place in 1873, and our statute of 1875 relating to property of married women cannot apply.

W. W. Caldwell, and Strong & Mossman for respondent.

Under the facts stated in the first count of the petition the plaintiffs could not maintain ejectment against the defendant. “Before dower is assigned, the widow has such a possessory right in the mansion house as will defeat an action of ejectment.” Jones v. Manly, 58 Mo. 559; Miller v. Tolley, 48 Mo. 503; R. S. § 2205; Baker v. St. Louis, 75 Mo. 671. The first count did not state facts sufficient to constitute a cause of action. Clancy on Rights, pp. 205, 219; Bacon's Abridg., Title, Jointure and Dower; Maguire v. Riggin, 44 Mo. 515; Waller v. Mardees, 29 Mo. 25; Couch v. Stratton, 4 Ves. 391; Tenny v. Tenny, 3 Atk. 8; R. S. § 2510; Devorse v. Snyder, 60 Mo. 235. There is no averment in the petition which attempts to state that defendant had lost her rights to the property brought to the husband's house after the marriage. There being no estate or interest in the defendant as a dowress, no consideration moved from her to Walker to support the contract. There was no complete valid parol agreement entered into. Johnson v. Johnson, 23 Mo. 561. The estate of Walker, after his death, could only be bound by an agreement which was made and completed by Walker in his lifetime, and which was valid and binding on him. Smarr v. Masters, 35 Mo. 349; Stagg v. Linnenfelser, 59 Mo. 341; Cape Girardeau Co. v. Harbison, 58 Mo. 94; Rittenhouse v. Ammerman, 64 Mo. 200. The allegations in the petition as to the estoppel are insufficient. Bigelow on Estoppel, p. 437; Bates v. Perry, 51 Mo. 453; Com. v. Moltz, 10 Barr. 527. Plaintiffs cannot recover upon a theory adverse to that upon which the petition proceeds. Stix v. Mathews, 75 Mo. 96; Bray v. Seligman, 75 Mo. 31; Mastin B'k v. Hammerslough, 72 Mo. 274; Smith v. Culligan, 74 Mo. 387; McKnight v. Bright, 2 Mo. 110; Clement v. Yeates, 69 Mo. 625; Cox v. Esteb, 68 Mo. 110.

RAY, J.

This action was commenced in the Andrew circuit court, and afterwards, by change of venue, transferred to Buchanan circuit court, where it came on for trial at the October term, 1879. At the trial, on motion of the defendant, the court excluded all evidence offered by plaintiffs in support of the allegations in their petition, on the ground that said petition failed to state facts sufficient to constitute any cause of action against the defendant. The plaintiffs thereupon took a nonsuit with leave to move to set the same aside; and after an unsuccessful motion to that effect, duly excepted to, they appealed to this court. The action was brought by the plaintiffs, as the heirs at law of Joseph Walker, deceased, against the defendant, who was his widow, and the step-mother of the plaintiffs, to obtain a judgment and decree, estopping and barring her from setting up any claim of dower to her said husband's estate, and dispossessing her of the real estate mentioned in the petition, on the ground that a post-nuptial agreement to that effect had been made and entered into between her and the deceased, prior to his death, and fully executed and performed after his death on his part, by his heirs turning over and delivering to her and her reception of the property, moneys and effects contemplated and provided for in said agreement, and in satisfaction thereof, etc.

It appears from the petition that Walker and wife, at the time of their marriage, were well advanced in life, and each had grown-up children by a former marriage, but none by the last marriage. It, also, appears that each of them, at and prior to their marriage in October, 1873, owned and possessed a considerable amount of real and personal estate, and that the defendant upon their said marriage, removed from Clay county, where she had resided, to the home of her husband in Andrew county, bringing with her some household goods and furniture of the value of $500, or more, and, also, several head of horses and several head of cattle and one jack, all of which said Walker took possession of, had it assessed to himself and paid taxes thereon and took charge of and provided for the increase of said stock on his farm, while he lived. That said Walker never took any control, nor received any benefits or profits, in any way, from the real estate of defendant, nor of any other property of any kind, except as stated. That defendant had full control and management of her real estate and her money, sold and rented her real estate as she saw proper, and received the money and profits therefrom, and, also, loaned her money in her own name, controlled the same, collected and received the interest thereon for her own use, and for her children's benefit. That shortly after their marriage, said Walker and wife were sued on one of her debts, contracted before marriage for about $1,500, that the husband assisted her in its payment, to the amount of $500, which she never returned to him.

It further appears that in November, 1877, the husband, Joseph Walker, died intestate; that he was seized and possessed of real estate in said county to the amount of 396 acres; that at his death the defendant was still his wife and residing with him, and still resides in and has possession of the mansion house; that one of the plaintiffs, Joseph M. Walker, was duly appointed and qualified as administrator of said Joseph Walker, deceased. It, also, appears, that some time prior to the death of said Joseph Walker, the defendant and said Walker made and entered into a contract and agreement of and concerning their property, which is set out in the petition in this case, as hereinafter stated. The petition contained two counts, the first of which was in the nature of a bill in equity, by the heirs of Joseph Walker, deceased, against the defendant, Catharine Walker, his widow, the object of which, as before stated, was to compel her to surrender or release her dower interest in the estate of said Walker, deceased, or in other words, to estop her from claiming dower in said estate. This count, after reciting the facts hereinbefore stated, and describing the real estate so owned and possessed by the husband at the time of his death, proceeds as follows:

“That some time prior to the death of said Joseph Walker, the defendant (then the wife of said Walker) and said Joseph Walker made and entered into the following contract and agreement of and concerning their property, to-wit: That the defendant, at the death of said Walker (which was then anticipated from his complaint at no distant day) was to have all her household goods and furniture that she brought to said Walker's, of the value of $500 or more, together with all the personal property that was brought at their marriage to said Walker's with its increase then on the farm, of the value of $1,600 or more, together with about $250 in accounts for services of said jack, and on getting and receiving said property, the defendant contracted and agreed to and with said Joseph Walker that she would claim no interest or right in any of his other property, homestead or dower, but that all his other property, real and personal, should go to his children; that she would put up no claim to any of it. That said Joseph Walker during his last sickness, in the presence of defendant and some of the plaintiffs and other persons, talked over this contract and agreement between him and his wife (the defendant) in regard to this property, so that it was well understood. That after the death of said Joseph Walker, and the appointment of said Joseph M. Walker, administrator, that the defendant claimed the said property aforesaid, and that the said administrator turned over to the said defendant all of the said property in accordance with and under the said contract and agreement as aforesaid, and that the said defendant accepted and received the same under said contract and agreement, and now has the same; that the property so turned over and received by defendant, as aforesaid, was of the...