Rougtell v. Strode

• Decision Date: 11 June 1907
• Citation: 103 S.W. 510,126 Mo. App. 348
• Parties: ROUGTELL et al. v. STRODE, Public Adm'r.
• Court: Missouri Court of Appeals

103 S.W. 510

126 Mo. App. 348

ROUGTELL et al. v. STRODE, Public Adm'r.

St. Louis Court of Appeals. Missouri.

June 11, 1907.

1. HUSBAND AND WIFE—ANTENUPTIAL AGREEMENT.

An antenuptial contract, executed in 1870, which provides that the property which the wife owns or may acquire shall be her separate property, is not affected by Rev. St. 1899, § 111 [Ann. St. 1906, p. 375], enacted in 1895, providing that where a wife dies intestate, owning personalty, the husband shall be allowed to keep as his absolute property the property designated by sections 105-107 [Ann. St. 1906, pp. 372, 373], as the articles a widow may take as her absolute property.

2. TRUSTS—CONSTRUCTIVE TRUSTS.

An antenuptial contract stipulated that the property of the wife should remain her separate property. After her death the husband took possession thereof and managed the same as his own. Held, that he occupied the position of administrator de son tort, and must be deemed to have dealt with the property as trustee for the heirs of the wife.

Appeal from St. Louis Circuit Court Daniel D. Fisher, Judge.

Action by Robert Rougtell, administrator of Mary L. Kinsky, deceased, and another, against Garrard Strode, public administrator of George J. Kinsky, deceased. From a judgment for plaintiffs, defendant appeals. Affirmed.

Johnson, Houts, Marlatt & Hawes, for appellant. M. McKeag, for respondents.

BLAND, P. J.

George J. Kinsky and Mary Louise Baumgartner were married in May, 1870. A few days before their marriage, they executed the following antenuptial contract: "Whereas a promise of marriage exists between the undersigned, George J. Kinsky and Mary Louise Baumgartner, and which soon is to be solemnized: Now, therefore, this agreement, made and entered into by and between the said George J. Kinsky, of the one part, and the said Mary Louise Baumgartner, of the other part, both of adult age, and residents of the city and county of St. Louis, in the state of Missouri, witnesseth that, for and in consideration of the love and affection by each for the other entertained, and for and in consideration of the sum of one dollar by each to the other paid, and the receipt whereof is by them respectively acknowledged, the said parties have covenanted and agreed as follows: That the said Mary Louise, notwithstanding said intended marriage, shall of the property, real, personal and mixed, whereof she is now entitled, as well as of that she may hereafter by gift, grant, demise, purchase or otherwise become entitled, or which she may acquire, have the use enjoyment, possession, control and disposition, for herself solely; and that the said Kinsky have no estate, claim, interest or domain therein, nor that the same be in any manner subject to the claims or demands of any creditors he may now have or may hereafter have; with full power to the said Mary Louise to collect and to receive the rents, issues, profits and proceeds of said property on her own individual receipt, and with power to sell, lease, incumber by deed of trust or otherwise, or other disposition make of said property by her own separate act and deed; and that the proceeds thereof to reinvest for her own sole and separate use and benefit, and with power to the said Mary Louise to appoint trustee or trustees, and those again to revoke, and others again to appoint in place of such original trustees, and this power of revocation and appointment to be exercised by said Mary Louise so often, as often as may be her pleasure; with power also that the said Mary Louise may by writing, in the nature of a last will and testament, devise and bequeath all property of whatsoever nature, whereof she may be seized, entitled or possessed, to such person or persons, in such share or shares and with such limitations, reservations and conditions as she shall deem proper; it being the intent and meaning of these presents that the said Mary Louise, notwithstanding her said marriage, shall have, hold, occupy and enjoy her property the same as if she was a feme sole, and the powers necessary to carry out this intention, though not herein specifically set forth, are and shall be considered as included herein. And the said Kinsky covenants to and with said Mary Louise that, for the fulfillment of this contract, he will, at all times and whenever required, sign, seal, execute and deliver all necessary instruments, sealed or unsealed, acknowledging the same, if necessary before officers thereto authorized, and according to all the forms of the law. In witness whereof, the said parties of the first part have hereunto set their hands and affixed their respective seals, on this, the twelfth day of May, in the year of our Lord eighteen hundred and seventy. George J. Kinsky. [Seal.] Mary L. Baumgartner. [Seal.]"

They lived together as husband and wife until March 12, 1902, when Mary Louise died intestate. No children were born of the marriage. Plaintiff Juliet M. Truer (née Baumgartner) and Charles F. Baumgartner, niece and nephew of Mrs. Kinsky, are her only heirs at law. May 12, 1904, letters of administration on the estate of Mrs. Kinsky were first granted to Juliet M. Baumgartner. On her marriage to...