Straat v. O'Nell

• Decision Date: 31 October 1884
• Citation: 84 Mo. 68
• Parties: STRAAT et al., Administrators, Appellants, v. O'NELL, Executor, et al.
• Court: Missouri Supreme Court

84 Mo. 68

STRAAT et al., Administrators, Appellants,

v.O'NELL, Executor, et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

J. N. Straat and C. S. Hayden for appellants.

The demurrer to the petition was improperly sustained. Davis v. Davis, 5 Mo. 183; Stone v. Stone, 18 Mo. 389; Tucker v. Tucker, 29 Mo. 350; G. S. 1865, p. 528, sec. 1, and p. 520, sec. 4; Turner v. Jennings, 2 Vern. Ch. 611 and 684; Smith v. Fellows, 2 Atkyns 620; Goddard v. Snow, 1 Russell's Ch. 485; Fonblanques' Eq. 269; 5 John. ch. 482; Littleton v. Littleton, 1 Dev. and Bat. (N. C.) 327; Cranson v. Cranson, 4 Mich. 230; Killinger v. Reidenhauer, 6 S. & R. 531.

James and Chas. S. Taussig for respondents.

(1) The demurrer was properly sustained. When a husband, in view of approaching death, has given away a portion of personal estate with the fraudulent intent of depriving his widow of her dower or child's share therein, she is not entitled to have paid to her, out of the general estate in the hands of the administrator, the sum of which she has been deprived through the fraudulent donations of her husband. She may follow the property so disposed of and may obtain her dower out of it. Davis v. Davis, 5 Mo. 183; Stone v. Stone, 18 Mo. 389; Tucker v. Tucker, 29 Mo. 350; Crecelius v. Horst, 4 Mo. App. 419; same case, 11 Mo. App. But she cannot claim out of the general estate her dower or a child's share of property which never came to the hands of the executor or administrator of the estate. (2) Appellant's claim is barred by the statute of limitation. This is not a suit for admeasurement of dower, because the property out of which the widow claims dower is gone. If this is “an action for relief on the ground of fraud” it should have been brought within five years after the cause of action arose. R. S., sec. 3230, p. 547; Rogers v. Brown, 61 Mo. 181. If this is an action to recover, out of the general assets of the estate, damages sustained by Jane Doyle through the fraud of her husband, it is clearly barred. (3) There is a fatal defect of parties defendant. The trustees for the residuary legatees and the residuary legatees should have been made parties. Their estate is sought to be diminished. The debts being all paid, the administrator or executor stands in the attitude of a trustee of an express trust for the residuary legatees, who in such case should be made parties. Green, Adm'r, v. Bell, 3 Mo. App. 293; Dillon, Adm'r, v. Bates, 39 Mo. 289, 301. The will in terms makes the executor or administrator a trustee of an express trust, and, therefore, the beneficiaries were necessary parties. Joseph O'Neil was not a proper party defendant. The petition shows that he was not then executor of the estate. (4) The circuit court has no jurisdiction. If the plaintiffs were entitled to have dower admeasured in the funds remaining in the hands of the administrator, the probate court was the proper tribunal and not the circuit court.

NORTON, J.

This case is before the court on plaintiff's appeal from the judgment of the St. Louis court of appeals, affirming the action of the circuit court in sustaining a demurrer to plaintiff's petition, and rendering judgment thereon, and the only question involved is the sufficiency of the petition.

The petition in substance alleges that John Doyle, in December, 1866, in his last will, made a number of specific charitable bequests, and provided that in case he should pay off such bequests during his lifetime, such payments should be treated by his executors as full satisfaction of the same; that said Doyle died in September, 1867, and between the time of making his will and his death, he made payments of certain of these specific bequests, amounting in the aggregate to $52,000. It is further alleged that these bequests and payments were made for the purpose of defrauding his widow out of her dower or child's part in the sum so paid out. It further appears from the petition that the estate of said Doyle was worth about $200,000 over and above the said $52,000; that he died leaving his widow and four children; that he made no provision in his will for his widow, giving as a reason therefor that the laws of the state, made ample provision for her in his estate. It is also alleged that the estate is not yet fully administered, and there still remains in the hands of the administrator $20,000, in real and personal estate unadministered, and that plaintiffs, as administrators, representatives of the widow, are entitled to have her dower therein, to the extent of $10,400, which would have been her dower or child's part in the $52,000 given away by her husband in satisfaction of the specific bequests in his will.

It was said in the case of McLaughlin v. McLaughlin, 16 Mo. 242, “that our statute only endows the widow of personalty, belonging to the husband at the time of his death. Hence any disposition he may make of his chattels during his life, a gift or any disposition to prevent the wife's dower attaching, if made during his life, will defeat the dower.” And in the case of Stone v. Stone, 18 Mo. 389, the opinion being delivered by Judge Scott, who also delivered the opinion in the case of McLaughlin v. McLaughlin, it is said: “Although dower is given in personal estate by our statute, yet it was not thereby intended to restrain the...