Teckenbrock v. McLaughlin

• Decision Date: 10 December 1912
• Citation: 246 Mo. 711,152 S.W. 38
• Parties: TECKENBROCK et al. v. McLAUGHLIN et al.
• Court: Missouri Supreme Court

152 S.W. 38

246 Mo. 711

TECKENBROCK et al. v. McLAUGHLIN et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1912.

Rehearing Denied December 21, 1912.

1. CURTESY (§ 12) — NATURE OF ESTATE — COMMON LAW.

At common law a husband, after issue born, was seised in his own right of an estate for life in the fee-simple lands of his wife, entitling him to possess and enjoy the property, and his curtesy right was vendible and subject to sale under execution against him, even during the wife's lifetime.

2. HUSBAND AND WIFE (§ 136) — WIFE'S SEPARATE ESTATE — NATURE.

Under Rev. St. 1909, § 8304, declaring a wife a feme sole for certain purposes, and section 8309, defining her separate property rights, her right to the present possession of realty is as full and complete as the husband's right to the possession of realty the title to which is in him.

3. CURTESY (§ 12) — STATUTORY MODIFICATIONS — CURTESY INITIATE.

Since Rev. St. 1909, §§ 8304, 8309, declaring a wife a feme sole for certain purposes and defining her separate property rights in real estate acquired by gift, descent, etc., the husband's right, or curtesy initiate, though a vested interest, entitles him to no present enjoyment or possession during the life of the wife, who alone can sue therefor, and the contingency upon which he takes as tenant by the curtesy consummate is his survival of his wife.

4. DOWER (§ 29) — "INCHOATE RIGHT OF DOWER" — NATURE OF INTEREST.

At common law the inchoate right of dower is a contingent right, the value of which depends wholly upon the death of the husband.

5. COVENANTS (§ 96) — ACTION FOR BREACH OF COVENANT AGAINST DOWER — VALUATION.

At common law the impossibility of valuing a wife's inchoate right of dower prevented an award of substantial damages in an action for breach of covenant against dower until the death of the husband made such right an actual interest.

6. WILLS (§ 220) — PROBATE — PERSONS WHO MAY CONTEST — INTEREST.

Under Rev. St. 1909, § 555, which makes an interest in the probate of a will necessary to contest it, a direct pecuniary interest at the time of probate is generally necessary; but heirs, devisees, legatees, executors, and judgment creditors have such direct and immediate interests upon devolution of the estate as to contest the will.

7. WILLS (§ 432) — CONTESTS — PERSONS CONCLUDED — HUSBAND AND WIFE — CURTESY INITIATE.

Rev. St. 1909, §§ 8304, 8309, empowers a wife to contest a will as if a feme sole, and makes lands acquired by gift, descent, etc., her separate property, with the right of immediate possession and enjoyment, subject only to her husband's curtesy initiate, consummated upon his survival, and Rev. St. 1909, § 555, makes an interest in the probate of a will necessary to contest it. A married woman contested her mother's will, excluding her and devising lands to her other children, on the ground of undue influence, and on appeal to the Supreme Court the cause was remanded with direction to sustain the will; and thereafter the husband, on the ground that issue had been born of the marriage, joined the wife in a second contest of the will. Held, that the wife, who litigated her right to the property of her mother actively and in good faith in the former proceeding therein, represented the whole fee, including her husband's interest upon his survival; and hence that such former contest was conclusive upon the husband.

8. WILLS (§ 432) — CONTEST — JUDGMENT — MATTERS CONCLUDED — IDENTITY OF ISSUES.

A will contest on the ground of undue influence by several is conclusive as against a subsequent contest on the ground that several conspired to unduly influence testatrix, since the issues in the two proceedings were identical.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Will contest by Bridget Teckenbrock and Theodore H. Teckenbrock, her husband, against Anna McLaughlin and others. Judgment for contestees, and contestants appeal. Affirmed.

Hugh D. McCorkle, of St. Louis, for appellants. Schnurmacher & Rassieur, of St. Louis, for respondents.

BLAIR, C.

This is a contest of a will.

Appellants are husband and wife, and appellant Bridget is the daughter of Mary McLaughlin, who died November 3, 1903, seised of certain realty which, by the terms of the will now assailed, she devised to three other daughters, respondents in this case. This is the second proceeding of the kind. February 8, 1904, Bridget Teckenbrock instituted in her own name a like action to contest the same will, making her three sisters defendants. Undue influence was alleged. That case resulted in a verdict and judgment sustaining the will, which judgment the trial court set aside on motion, and, on appeal, this court reversed that order, and remanded the cause, with directions to reinstate the verdict and re-enter the judgment. Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46. Subsequently, October 26, 1908, this proceeding was begun in the circuit court of the city of St. Louis, in which court the previous case had been heard, and again undue influence is relied upon. The answer avers, among other things, the rendition of judgment in the former case. Prior to Mary McLaughlin's death, issue had been born of the marriage between contestants. On the plea of res judicata and the issue as to the sufficiency of H. Teckenbrock's interest to support a contest, separately submitted by agreement, judgment was given for contestees. The statute (section 555, R. S. 1909) provides that "any person interested in the probate of any will" may contest its validity in the manner and within the time therein prescribed. In this case the right of H. Teckenbrock to contest is asserted to arise out of the fact he is the husband of a daughter of testatrix, and, issue having been born of the marriage, entitled to curtesy in his wife's share in the estate in case of judgment against the will. Any interest Bridget Teckenbrock would have taken in 1903 by descent would have become her separate property by force of the statute then and now in force. Whether a husband's curtesy in such property of his wife is more than an estate for his life after her death contingent upon her failure to sell is a question not definitely settled in this state (Bank v. Hageluken et al., 165 Mo. 443, 65 S. W. 728, 88 Am. St. Rep. 434; Myers v. Hansbrough, 202 Mo. 495, 100 S. W. 1137), and, in the view we take, not essential to the decision in this case. Let it be assumed, for present purposes, that the wife's separate conveyance of her statutory separate estate does not affect the husband's curtesy in case it would otherwise exist.

The wife's right to the possession and enjoyment of her property acquired by descent since 1889 is well established, and the only possessory interest the tenant by the curtesy can take is one for his life after the wife's death. In this state the resemblance between the husband's curtesy and the widow's dower is somewhat closer than at common law. At the common law, after issue born, the husband was seised in his own right of an estate for his life in the fee-simple lands of...