Scott v. Scott

• Decision Date: 02 April 1930
• Docket Number: 27718
• Citation: 26 S.W.2d 598,324 Mo. 1055
• Parties: B. F. Scott v. George S. Scott and R. L. Scott; George S. Scott, Appellant
• Court: Missouri Supreme Court

26 S.W.2d 598

324 Mo. 1055

B. F. Scott v. George S. Scott and R. L. Scott; George S. Scott, Appellant

No. 27718

Supreme Court of Missouri

April 2, 1930

Appeal from Pulaski Circuit Court; Hon. W. E. Barton Judge.

Affirmed.

J R. Kirkham and Lorts & Breuer for appellant.

(1) The court erred in its finding and judgment vesting the plaintiff with a fee simple title in the real estate, and that the same had been conveyed by his wife unencumbered by any rights appellant had in her property as her husband under the laws of Missouri. Sec. 1, p. 119, Laws 1921. (a) The above statute repealed by implication Sec. 324, R. S. 1919, thereby giving the husband the same rights in his deceased wife's property that she would have had in his had he predeceased her. O'Brien v. Trust Co., 5 S.W.2d 76; Thomas v. McGhee, 8 S.W.2d 71. The Act of 1919 supra, plainly extends the operation of the law to widowers, and the word "widower" does not mean a particular class of widowers, but is used throughout in a generic sense. (b) It has also been held in this State that a husband could take a half interest in his deceased wife's estate, under Sec. 320, R. S. 1919, though he had no right to curtesy. Perry v. Strawbridge, 209 Mo. 630. (c) In view of the Statute, page 119, Laws 1921, Sec. 326, R. S. 1919, must control, and that part of Sec. 7328, R. S. 1919, in conflict, is by implication necessarily repealed, leaving Section 326, and laws of 1921, in harmony; otherwise the new statute would have no force and effect. McCreary v. Lewis, 114 Mo. 582; Wyatt v. White, 192 Mo.App. 558; Grady v. McCorkle, 57 Mo. 172. (2) There was no consideration for the deed passing from the deceased wife to the respondent. The purported consideration was of respondent's individual making and to his notion, without her consent, and parol evidence on this point was admissible, to overcome to the prima-facie case of the alleged consideration. Hall v. Morgan, 79 Mo. 47; Wood v. Broadley, 76 Mo. 23. (3) The respondent, being related to the grantor as son, was not entitled to compensation for caring for his mother in the absence of a contract to that effect. Rose v. Mays, 139 Mo.App. 246; McMorrow v. Dowell, 116 Mo.App. 289; Sloan v. Dale, 90 Mo.App. 90.

OPINION

Frank, J.

Action by B. F. Scott against George S. Scott and R. L. Scott. The petition is in two counts. The first count seeks a decree vesting the title to the lands described in the petition in the plaintiff. The second count is in ejectment, and asks judgment for possession of said lands, and for damages in the sum of $ 475 for the unlawful withholding of the possession of said premises, and the sum of sixteen dollars per month until possession is restored to plaintiff.

Judgment went for plaintiff on both counts of the petition, and defendant George S. Scott appealed.

Appellant George S. Scott and one Mary J. Scott were husband and wife. Respondent B. F. Scott and defendant R. L. Scott are brothers and are children of George S. and Mary J. Scott.

The charging part of the first count of the petition is as follows:

"Plaintiff states that he is claiming the fee simple title of, in and to the following described real estate, situate in the City of Dixon, in the County of Pulaski and State of Missouri, to-wit: The North half of Lots One, Two and Three in Block One (1) of Santee's Addition to the Town of Dixon, Missouri."

"That he claims to have derived his title by, through and under Mary J. Scott, his mother, in the following manner, to-wit: That the said Mary J. Scott was the wife of George S. Scott; that she died on the 19th day of February, 1925; that before her death she was the owner of the above described land, having acquired the same on the 28th day of August, 1908, by a general warranty deed; that said deed was executed and delivered to her for a valuable consideration, moving to the grantor therein George S. Scott, Jr.; that the said purchase price so paid therefor was her separate money and means; that at the time of her death she was the wife of the said George S. Scott; that the said George S. Scott, without reasonable cause, for the space of one whole year, abandoned his said wife, and continued to live separate and apart from her for said space of more than one year next preceding her death, so as to be barred from any claim of inheritance or curtesy of, in and to said property, and after he forfeited any claim thereto as aforesaid, the said Mary J. Scott, for a good and valuable consideration, conveyed, by a general warranty deed, the above described property to this plaintiff, so that the plaintiff became vested with the fee simple title thereto, free and clear of any claim on the part of the said George S. Scott, as her former husband or otherwise; that notwithstanding the fact that the said George S. Scott never had any curtesy in said property for the reason that the same constituted her separate statutory estate and because of the desertion of the said Mary J. Scott as aforesaid, he is nevertheless claiming and asserting some interest of, in and to said property, which plaintiff is informed is an estate by curtesy; that said defendant R. L. Scott is in the actual possession of said property, claiming by, and through the said George S. Scott, but has no claim of title thereto of record."

The second count of the petition is in ejectment and is in conventional form, as heretofore indicated.

The answer of defendant George S. Scott, among other things, alleges:

"Comes now George S. Scott and for his separate answer to plaintiff's petition admits that Mary J. Scott was formerly the wife of the defendant George S. Scott, and that she departed this life on the 19th day of February, 1925, and denies generally and specifically each and every other allegation in plaintiff's petition contained.

"Further answering defendant says that he is the widower of the said Mary J. Scott, deceased, who at the time of her death was the owner of the real estate described in plaintiff's petition; that the deed under which plaintiff claims title to said lands was not the voluntary act and deed of the said Mary J. Scott, but that said deed, if made by the said Mary J. Scott, is and was the result of coercion, over-persuasion and undue influence exercised over the mind of the said Mary J. Scott by the plaintiff, B. F. Scott; that there was no consideration passed from the said B. F. Scott to the said Mary J. Scott for said deed and that said deed is therefore void as a matter of law. . . . Defendant further says that as the widower of Mary J. Scott he has a curtesy in the real estate described in plaintiff's petition and has the right to the possession and control thereof until his death."

This answer also pleads facts tending to show that defendant did not desert and abandon his wife.

The answer of defendant R. L. Scott pleads that he is the tenant of defendant George S. Scott, and is in possession of the property under a contract and agreement with said George S. Scott, who had authority to lease said real estate by reason of his curtesy therein as the widower of Mary J. Scott, deceased.

Appellant's wife acquired title to the property in 1908 by warranty deed from the then owner, and she and her husband thereafter made their home thereon. In 1922 appellant and his wife were both past eighty years of age and physically unable to live alone and care for themselves. In June, 1922, appellant went to the Soldier's Home at St. James and thereafter made his home there. In September of the same year his wife went to the home of respondent, her son, and lived with him until the date of her death in February, 1925. Prior to her death, and on March 8, 1923, she conveyed the property in question to respondent by warranty deed, in which appellant did not join.

The gist of plaintiff's petition is that defendant's wife, Mary J. Scott, acquired title in her own right to the property in question in the year 1908, and that she thereafter conveyed the property to respondent by her separate warranty deed and that he is now the owner thereof.

The answer of defendant denies that his wife conveyed the property to respondent and alleges that she was the owner thereof at the date of her death and for that reason he, as her widower, has curtesy therein and is entitled to...