Schwind v. O'Halloran

• Decision Date: 03 July 1940
• Docket Number: 36291
• Parties: Elizabeth Schwind, Appellant, v. Anthony O'Halloran, Administrator Pendente Lite of the Estate of Charles A. Schwind, Ferdinand Schwind and Eugene Schwind, Appellants
• Court: Missouri Supreme Court

142 S.W.2d 55

346 Mo. 486

Elizabeth Schwind, Appellant, v. Anthony O'Halloran, Administrator Pendente Lite of the Estate of Charles A. Schwind, Ferdinand Schwind and Eugene Schwind, Appellants

No. 36291

Supreme Court of Missouri

July 3, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded (with directions).

William Kohn for plaintiff-appellant; Charles A Neumann for Ferdinand and Eugene Schwind.

(1) The uncontradicted evidence of the delivery of the deeds of trust in question by Mr. Schwind to his wife, the plaintiff, on or about February 11, 1935, established a gift to his wife of his interest in the deeds of trust. It is well settled that property delivered by husband to wife is presumed to be a gift. Albright v. Slater, 233 S.W. 8; In re Greenwood, 201 Mo.App. 41; Landphere v. Affeld, 99 S.W.2d 40; Dickson v. Dickson, 101 S.W.2d 775; Harvey v. Long, 260 Mo. 385; Ramsey v Otis, 133 Mo. 96; Parker v. Staley, 21 S.W.2d 200; McBride v. Mercantile-Commerce Bank & Trust Co., 48 S.W.2d 927; Townsend v. Schaden, 275 Mo. 243. (2) Under the uncontradicted and undisputed evidence the eight deeds of trust and notes, which are the subject matter of this suit, represent and are what was left of the $ 71,500 proceeds of the sale of the four parcels of real estate held by plaintiff and her husband as tenants by the entirety. Graham v. Stroh, 117 S.W.2d 258; Fullerton v. Fullerton, 132 S.W.2d 966; Roberts v. Roberts, 291 S.W. 487. These eight deeds of trust and notes, like the real property from which they originated, were held by plaintiff and her husband as tenants by the entirety, and upon the death of the husband the entirety estate terminated, and by reason of her survivorship, became the sole property of plaintiff. The proceeds of the sale of real property held by husband and wife as tenants by the entirety retains the entirety character of the property from which they were derived. Such proceeds, as well as any property into which the same may be invested, will be regarded as held in entirety, with the right of survivorship, and this is so even though the money or property is taken and held by the husband in his own name. Frost v. Frost, 200 Mo. 474, 98 S.W. 527; Hamrick v. Laskey, 107 S.W.2d 203; Rezabeck v. Rezabeck, 196 Mo.App. 673, 192 S.W. 107; Craig v. Bradley, 153 Mo.App. 591; George v. Dutton's Estate, 108 A. 515; Union & Merc. Trust Co. v. Hudson, 227 S.W. 1. (3) In an estate by the entirety the husband and wife each owns, not a part or a separable interest, but the whole; and, therefore, the death of one leaves the other still owning the whole as before, with no one to share it, and free from the claim of anyone claiming under or through the deceased. Wilson v. Frost, 186 Mo. 319; Frost v. Frost, 200 Mo. 480; Garner v. Jones, 52 Mo. 71; Lomax v. Cramer, 202 Mo.App. 366; Haguewood v. Britain, 273 Mo. 89. (4) An estate in entirety cannot be severed by the act of either the husband or the wife. The husband's appropriation, if he did appropriate, of the income from the deeds of trust did not work a severance or destruction of the estate in entirety in the principal or in the deeds of trust themselves, any more than such appropriation of the rents would have worked a severance of the estate by the entirety in the real estate. Frost v. Frost, 200 Mo. 474; Holmes v. Kansas City, 209 Mo. 531; Corinth v. Emery, 63 Vt. 505, 22 A. 618; Hartford Fire Ins. Co. v. Bleedorn, 132 S.W.2d 1072. (5) Under the Married Woman's Act (Sec. 3003, R. S. 1929) personalty acquired by the wife during coverture cannot become the husband's property, even though he purports to reduce the same to his possession, unless she assents thereto in writing. Her interest as tenant by the entirety in the $ 71,500 proceeds of the sale of the four parcels of real estate, having been acquired by plaintiff during coverture, could not have become her husband's sole property unless she assented thereto in writing, but no writing was produced. Sec. 3003, R. S. 1929; Hax v. O'Donnell, 117 S.W.2d 671; Craig v. Bradley, 153 Mo.App. 593; Roberts v. Roberts, 291 S.W. 487 (6) In Missouri it is settled law that estates in entirety may exist in personal property. Lomax v. Cramer, 202 Mo.App. 365; Rezabeck v. same, 196 Mo.App. 673; Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28, 77 A. L. R. 782.

Suelthaus & Krueger for respondent; Robert C. Powell of counsel.

(1) The theory that the deeds of trust involved were owned as tenants by the entireties is inconsistent with the theory that the same property was the subject of a gift from the deceased husband before his death. McLaughlin v. Greenwood, 208 S.W. 637; Craig v. Bradley, 134 S.W. 1082; Samuel v. Frederick, 262 S.W. 716; Stifel's Union Brewing Co. v. Saxy, 201 S.W. 69; Wilson v. Frost, 85 S.W. 377. (2) When a husband pays the consideration for property and takes title in the name of the wife, or in their joint names, the presumption that he intended the property so conveyed to be a gift or a settlement upon the wife may be overcome by evidence showing such was not the intention. Ambruster v. Ambruster, 31 S.W.2d 37; Clark v. Clark, 18 S.W.2d 81; Thierry v. Thierry, 249 S.W. 952; Price v. Kane, 20 S.W. 611; Alexander v. Alexander, 44 S.W.2d 874; Turner v. Home Ins. Co., 189 S.W. 628. (3) Even though title to real estate was held as tenants by the entireties, where there is a change in the estate, in the absence of action to revive or recreate after such change, there is no new or continuing estate by the entireties. Williams v. Safety Savs. & L. Assn., 58 S.W.2d 789; Safety Savs. & Loan Assn. v. Williams, 71 S.W.2d 850. (4) To establish an implied trust, whether it be resulting or constructive, the evidence must be so cogent, clear, convincing, unequivocal and positive as to banish any room for reasonable doubt. Little v. Mettee, 93 S.W.2d 1005; Waddle v. Frazier, 151 S.W. 91; Gaugh v. Gaugh, 11 S.W.2d 746; Williams v. Keef, 145 S.W. 427; Parker v. Blakeley, 93 S.W.2d 988; Wavrin v. Wavrin, 220 S.W. 933; Norton v. Norton, 43 S.W.2d 1031; Clay v. Walker, 6 S.W.2d 961. (5) Where, by reason of delay, evidence becomes unavailable, or important witnesses have died, and it becomes impossible to ascertain facts, then such laches will bar recovery. Snow v. Funck, 41 S.W.2d 2, l. c. 5; Price v. Boyle, 229 S.W. 210; Abernathy v. Mampe, 53 S.W.2d 1093; Morris v. Parry, 85 S.W. 623; Smalley v. Queen City Bank, 94 S.W.2d 961. (6) Where a person stands by and sees another committing an act infringing upon his rights, and fails to assert his title or right, he will be estopped to afterwards assert it. Berry v. Cobb, 20 S.W.2d 298; Norman v. Summerfield-Jones Const. Co., 18 S.W.2d 560; Zahner v. Voelker, 11 S.W.2d 64. (7) He who attempts to establish title to property through a claim of gift must support such claim by evidence which clearly establishes every element of a valid gift. Spencer v. Barlow, 5 S.W.2d 32; Lins v. Lindhardt, 29 S.W. 1030; Dunn v. German-American Bank, 18 S.W. 1141; McCune v. Daniels, 225 S.W. 1022; Grisel v. Jones, 99 S.W. 770; Williams, Public Admr., v. Peterson, 271 S.W. 1023; Huls v. Lawrence, 300 S.W. 1014; Cremer v. May, 8 S.W.2d 115; 12 R. C. L., p. 971; Newell, Public Admr., v. Edom, 242 S.W. 702. (8) Neither plaintiff nor the defendants Ferdinand Schwind and Eugene Schwind were competent witnesses. Easton v. Curtiss, 4 S.W.2d 823; Rice v. Shipley, 60 S.W. 742; Herndon v. Yates, 194 S.W. 48; Miller v. Slupsky, 59 S.W. 990; McKee v. Downing, 124 S.W. 15; Roberts v. Roberts, 291 S.W. 487; Gunn v. Thurston, 32 S.W. 654; Kille v. Gooch, 184 S.W. 1159; Danciger v. Stone, 210 S.W. 866; Supreme Council Royal Arcanum v. Bevis, 80 S.W. 740. (9) Neither the examination of witnesses in another suit, nor the offering of the interrogatories and answers filed in the probate court, were sufficient to waive the incompetency of plaintiff and the defendants Ferdinand Schwind and Eugene Schwind. Crow v. Crow, 100 S.W. 1125; Imboden v. Imboden's Estate, 86 S.W. 266; Bruner Granitoid Co. v. Glencoe Lime & Cement Co., 187 S.W. 811; Scott v. Scott, 265 S.W. 865; Rice v. Waddill, 67 S.W. 609; Ess v. Griffith, 40 S.W. 931; Soulard's Estate, 43 S.W. 620; Meffert v. Lawson, 287 S.W. 613; Trautmann v. Trautmann, 254 S.W. 289; Lang v. Wishart, 273 S.W. 770; Carmody v. Carmody, 181 S.W. 1151.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This is an action by Elizabeth Schwind, the widow of Charles A. Schwind, against Anthony A. O'Halloran, as Administrator pendente lite of the estate of Charles A Schwind, deceased, and Ferdinand Schwind and Eugene Schwind. Plaintiff seeks to establish the interests of herself (and her transferees, her sons, the codefendants Schwind) in eight certain notes of the aggregate face value of $ 40,000, secured by deeds of trust, as property held by her husband and herself during his lifetime by the entirety (as well as to payments thereon made subsequent to his death), and to restrain said Administrator from interfering with the rights of herself and her said transferees in and to said property. Plaintiff's petition alleged, as does the joint answer of defendants Ferdinand and Eugene Schwind, that plaintiff transferred said notes and deeds of trust to said defendants, subject to plaintiff's reservation of the income therefrom for life, in consideration of said defendants' agreement to support and maintain her for the remainder of her life. Defendant O'Halloran contends, briefly stated, that said notes and deeds of trust constitute part of the estate of Charles A. Schwind, deceased; that, if ever held by the entirety, laches and estoppel are fatal to plaintiff's cause; and said defendant seeks to have the same turned over to him as Administrator...