Stone v. Stone

• Citation: 18 Mo. 389
• Parties: STONE, Plaintiff in Error, v. STONE et al., Defendants in Error.
• Decision Date: 31 July 1853
• Court: United States State Supreme Court of Missouri

18 Mo. 389

STONE, Plaintiff in Error,

v.STONE et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1853.

1. A conveyance of personal property made by a husband during his last sickness, and in expectation of death, with a view to defeat his wife's dower, is void as to her.

Error to Henry Circuit Court.

This was a suit begun by Margaret Stone, the plaintiff in error, in 1850, against Jesse F. Stone, Rebecca J. Stone, Margaret D. Stone and William S. Stone, defendants in error, to recover her dower in certain slaves which had belonged to her deceased husband, John C. Stone, in his life-time. In her petition, she alleges that her husband died on the 10th day of February, 1849, and that by his will, made and published on the 27th day of January, and admitted to probate on the 6th day of March, of that year, he had made certain provisions for her which she had renounced; that on or about the 22nd day of January, 1849, said John C. Stone being possessed of the slaves in which she claimed dower, had executed a conveyance of them to the defendant, Jesse F. Stone, in trust for the use and benefit of the other three defendants, children of said John C. Stone, by a former marriage; that said conveyance was executed by her husband in his last sickness, a few days before his death; that for a long time previous, he had been sick, and was then in a very weak state both of body and mind, and influenced by the persuasions of some of his blood relatives, had made said conveyance for the purpose of defrauding her of her marital rights.

The defendant, Jesse F. Stone, for himself, and the other defendants, by their guardian ad litem, answered, admitting the execution of the conveyance of the slaves by John C. Stone in his life-time, but denying that it was executed with a design to defraud the wife of her dower, or under any undue influence.

On the trial before the court without a jury, it appeared in evidence that John C. Stone, during his last sickness, and a short time previous to his death, in consultation with his friends, expressed a desire to secure the slaves to his children by the former marriage, through whose mother they had come to him, but feared that he could not make a conveyance which would defeat his wife's dower; that he was advised that a deed of gift to a trustee for the benefit of his children, would be effectual for that purpose, and thereupon executed the conveyance mentioned in the petition; and that, at the time of executing the same, he said he was convinced he had the consumption and could not live long. t also appeared that he executed a will about the same time, making provisions for his wife, with which she expressed herself satisfied.

The court, upon these facts, gave judgment for the defendants. The plaintiff brings the case here by writ of error.

Hicks, for appellant.

The deed of trust was a fraud upon the marital rights of Margaret Stone, having been made for the express purpose of defeating her dower, and should have been set aside. (Davis v. Davis, 5 Mo. 181; 1 Johns. Ch. 482; 2 Vernon, 612; 2 Atkyn, 62 & 377; 1 ib. 63; 5 Munf. 482; 1 Russell, 485; 1 Fonbl. 269.)

Winston and Ballou, for respondent.

No actual fraud was proved, and it is impossible to make constructive fraud out of an act which was nothing more than the performance of a moral duty. In the case of Davis v. Davis, the bill distinctly alleged fraud, and the decision was upon a demurrer. This is a different case. There is no evidence of any fraud or undue influence; and it appears that the deed was made by John C. Stone while of sound mind. The husband may dispose of his personal property as he pleases until his death. Until then the wife has no vested interest in it.

...