Skinner v. Skinner's Ex'rs

• Decision Date: 31 October 1882
• Citation: 77 Mo. 148
• Parties: SKINNER v. SKINNER'S EXECUTORS, Appellants.
• Court: Missouri Supreme Court

77 Mo. 148

SKINNER

v.SKINNER'S EXECUTORS, Appellants.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Montgomery Circuit Court.--HON. G. PORTER, Judge.

AFFIRMED.

Forrist & Fry for appellants.

Carkener & Rosenberger for respondent.

RAY, J.

This cause originated in the probate court of Montgomery county, where the plaintiff had judgment, from which the defendants appealed to the circuit court of that county, where, on a trial anew, the plaintiff again had judgment, from which the defendants have appealed to this court.

The proceeding in the probate court was to obtain judgment and classification against the estate of Francis Skinner, deceased, of the following claim, in favor of Lucinda Skinner, the respondent, to-wit:

“$4,000.

HIGH HILL, Mo., May 6th, 1868.

I promise to pay, twelve months after my death, to Lucinda Peery $4,000, value received, with ten per cent interest from maturity, and I bind hereby my executors, administrators and assigns, to pay said $4,000 after maturity, out of any real and personal property, provided that the said Lucinda Peery is at the day of my death, living with me as my wife.

FRANCIS SKINNER.”

On the trial, in the circuit court, before the court sitting as a jury, the respondent, to support her claim, offered in evidence the said note with proof of its execution. She next read in evidence a deed of trust on certain real estate to secure the payment of said note which was executed by the testator on the 6th day of May, 1868, and duly acknowledged and recorded in the proper office. Respondent then called witness Hunt, who testified to the marriage of respondent with the testator, which took place on the 7th day of May, 1868; that she lived with him as his wife from that time till his death in April, 1877, (nursing and taking care of him in his last sickness, etc.,) and that she is the same Lucinda Peery named in the note. It also appeared that the defendants were the executors of last the will and testament of said testator, Francis Skinner, and that twelve months had elapsed since the death of said testator, and prior to the presentation of said note for allowance in the probate court. It further appeared that said respondent, prior to her marriage with said testator, had been married to a man named Peery; that said prior marriage took place in Missouri prior to 1843; that in the year last named, said Peery left the respondent and had never been heard from since by her or her friends, and that she had long considered and believed him to be dead; that no divorce had ever been sought or obtained from said Peery; that said first husband had been absent and unheard from for about twenty-five years prior to the marriage to the testator. The respondent then offered in evidence a marriage contract between the respondent and testator, made and executed on May 6th, 1868, as follows, to-wit:

“This marriage contract made and entered into, this 6th day of May, A. D. 1868, by and between Francis Skinner, of Montgomery county, and State of Missouri, party of the first part, and Lucinda Peery, of Montgomery county, and State of Missouri, party of the second part, witnesseth: That whereas, the party of the first part is seized in fee of certain real estate situated in the State of Missouri, and is the owner of other personal property, and a marriage is hereby intended to be solemnized between the aforesaid parties; therefore it is agreed between the parties that the said party of the second part shall receive after the death of the party of the first part, should she be the survivor, $4,000 in money, to be paid to the second party as her absolute property, out of the estate of the party of the first part, as speedily and as early after the death of the said first party, as circumstances will admit. It is understood that the above mentioned $4,000 shall be paid prior to any distribution of any of the estate of the party of the first part to his heirs or devisees, and the party of the second part, in consideration of the premises and in consideration of the sum of $1 to her in hand paid by the party of the first part, the receipt of which is hereby acknowledged, does for herself, her heirs and executors and administrators, covenant and agree with the party of the first part, his heirs and administrators and executors, that the above mentioned $4,000 shall be in full satisfaction of her dower in the estate of the party of the first part, whether present or future, and shall bar her from claiming any interest whatever in the personal estate of the first party, whether present or future, as heir, devisee or as his widow, if she should survive after said marriage, unless some part thereof be given her by his last will, or some act done by him subsequent to the execution of these presents. It is also covenanted and agreed that the party of the second part shall not be entitled to receive the above mentioned $4,000 in the event the parties are separated and not living together as man and wife at the time of the death of the party of the first part, and that the estate of said Mrs Peery shall vest in said testator.”

Respondent then re-called witness Hunt, who testified that said marriage contract, deed of trust and note were all made and executed on the 6th day of May, 1868; that the marriage took place on the day following; that the note was given for the same $4,000 mentioned in the marriage contract; that the note, deed of trust and marriage contract were all executed at the same time, as one entire transaction. Appellants objected to all this evidence of witness Hunt, but the court overruled their objections and they excepted. The respondent here rested, and the defendants offered a demurrer to the evidence, which the court overruled.

The defendants, on their part, then offered to read in evidence the last will and testament of said Francis Skinner, to which plaintiff objected, and the court sustained said objection, to which action of the court the defendants excepted. The defendants then stated and read out of said will the following clause or item: “2nd, It is my will and desire, that my executors hereinafter named, pay to my wife, Lucinda Skinner, the sum of $4,000, which she is to have out of my estate according to our marriage contract, executed before our marriage, and which, by the terms of said contract, is to stand in lieu of and in full satisfaction of her dower or right of dower in my estate, real or personal, and in lieu of any interest or claim in and to my estate.” And further, that...