Walker's Adm'r v. Walker

• Decision Date: 31 July 1857
• Citation: 25 Mo. 367
• Parties: WALKER'S ADMINISTRATOR, Plaintiff in Error, v. WALKER, Defendant in Error.
• Court: Missouri Supreme Court

25 Mo. 367

WALKER'S ADMINISTRATOR, Plaintiff in Error,

v.WALKER, Defendant in Error.

Supreme Court of Missouri.

July Term, 1857.

1. Equitable relief cannot be given in a suit asserting a legal right and seeking its enforcement.

2. At law, the husband cannot make a gift direct to the wife; and though equity, where the intent is clear that she shall enjoy the property granted to her separate use, will, in such case, interfere, and constitute the husband a trustee, and compel him to execute the trust, yet the proof of the trust must be clear and unequivocal.

3. If personal property, other than choses in action, be in such a situation that the husband may, if he will, lawfully take it into his hands at any moment, this is a sufficient reduction into possession, although he should not actually take it into his custody.

4. Where a husband is in possession of personal property bequeathed to his wife by a former husband, as administrator of such former husband, and he makes a final settlement, and it is ordered by the court that he and his wife retain all the estate of the deceased in their hands; held, that the husband's possession as administrator ceases, and his possession jure mariti commences, at the date of such order; this would not, however, be a reduction into possession by him of a bond or note for the wife's money taken by him as administrator.

Error to Cooper Circuit Court.

This is a suit by the plaintiff, the public administrator of Cooper county, as administrator of the estate of Mary Walker, deceased, against Henry R. Walker, her surviving husband. Plaintiff asserts in his petition that defendant is in possession of sixteen thousand dollars in money, notes and accounts, belonging to his, plaintiff's, intestate, which he refuses to pay or deliver to plaintiff; that he is also in possession of certain slaves, jennies, jacks, horses, and other personal property, enumerating it, belonging to said estate, which he also refuses to deliver. Plaintiff asked “judgment for the value of said money, notes and accounts, slaves and other property, in defendant's possession, belonging to said estate, and to the plaintiff as such administrator, with damages for the wrongful detention thereof.”

The defendant answered, admitting the possession alleged, but asserting absolute title in himself.

Upon the trial of the cause evidence was adduced showing, and tending to show, that Mary Walker, plaintiff's intestate, was, at the time of her death, the wife of defendant, Henry R. Walker; that she intermarried with defendant in the year 1851; that at the time of her marriage with defendant she was the widow of Isaac Maston, deceased, who died in 1850, possessed of a large estate, consisting of lands, slaves, horses, mules, jacks, cattle, etc., also notes and bonds for money at interest; that Maston left a will by which, after making several small bequests to his relatives, he devised and bequeathed all the residue of his estate, real and personal, to his wife, Mary, absolutely, and appointed her and Anthony S. Walker executrix and executor; that they took out letters testamentary and took charge of Maston's estate; that in December, 1851, the defendant, Henry R. Walker, married said Mary Maston; that in July, 1852, said Henry R. Walker was appointed administrator, with the will annexed, of the estate of said Maston; that he administered upon the same, and made a final settlement at the April term, 1854, of the Cooper Probate Court, when an order was made directing that the residue of the estate be retained by said Walker and wife, she being the residuary legatee, and the defendant was discharged from making further annual settlements. Plaintiff's intestate died in April, 1856. It appeared in evidence that the personal property belonging to the estate of Maston was assessed for the years 1852, 1853 and 1854, in the name of plaintiff's intestate, with the assent of defendant; that for the years 1855 and 1856 it was assesed in the name of defendant, while the real estate was assessed throughout all those years in the name of plaintiff's intestate; that at the date of the marriage of defendant with plaintiff's intestate he, defendant, owned a farm in the immediate vicinity of the Maston farm; that after the marriage the defendant resided at the Maston farm; that the negroes of the Maston estate were kept separate from those of defendant's farm; that they were worked separately, living upon the respective farms as before the marriage; that Mrs. Walker, plaintiff's intestate, directed and controlled the affairs of the Maston farm; that the negroes and stock on said farm were familiarly known as hers; that separate accounts were kept of moneys, etc.

The plaintiff asked the court to instruct the jury as follows: “1. If the jury believe from the evidence that at the time of the commencement of this suit the defendant had in his possession money, notes, accounts, slaves and other personal property, of the description stated in the petition, belonging to the estate of Mary Walker, deceased, they must find for the plaintiff, and may allow interest on such aggregate value at six per cent. from the commencement of this action. 2. Although the husband, by virtue of the marriage, is entitled to the personal property of the wife, yet he must reduce it to his possession as husband during the marriage, and if he does not it goes to the wife's legal representatives. If, therefore, the jury believe from the evidence that the defendant did not so reduce his wife's personal property before marriage to his possession during the marriage, but that the wife, from her marriage to her death, had the separate control of it in her own right, independent of her husband, they must find for the plaintiff. 3. Although, in the absence of evidence, the possession of personal property by the wife is the possession of the husband, yet if the jury believe from the evidence that Mrs. Walker, from her marriage to her death, had the separate possession and control of the property she had before marriage in her own right, independent of her husband, such possession was not the possession of the husband, and they must, in such case, find for the plaintiff. 4. Even though the defendant had taken possession of the property as Maston's administrator, yet if he held the possession as administrator merely, and the wife took the separate possession and control of property in her own right, independent of her husband, from the close of the administration until her death, such possession could not pass the property to the defendant as husband. 5. Even though the jury may believe from the evidence that the defendant during the marriage took control of the property his wife had at the marriage, yet, if they further believe from the evidence that he did not so take control of it as husband in his own right, but in right of his wife, recognizing her separate right to and separate control of it, such control by defendant was not such possession as passed the property to him as husband. 6. A gift from husband to the wife of her own property after marriage, if a reasonable provision for her, the husband's fortune and circumstances considered, and not prejudicial to creditors, accompanied by the separate possession, use and control of it by the wife, passes the title to her as her separate property; and such a gift need not be expressly proved, but may be implied from the acts and declarations of the husband. If, therefore, the jury believe from the evidence that Mrs. Walker had the possession and control of her own property, and that defendant permitted her so to possess and control it, upon a mutual understanding between them that he was to set up no right to it as husband, and that she was to have it as her own separate property, such control and possession were sufficient to pass the property to the wife as a gift, and the defendant could not, in such case, resume possession and again divest his wife of her property.” The first of these instructions was given. The court refused the others.

The court, at the instance of the defendant, gave the following instruction: “1. If the jury believe from the evidence that the property, etc., in controversy, was derived from the estate of Isaac Maston, deceased, as a legacy bequeathed to plaintiff's intestate, Mary Walker, late Mary Maston; and if the jury further find that whilst the said Mary was so entitled to said legacy, and before the close of the administration of Maston's estate, the defendant intermarried with said Mary, and that afterwards, in July, 1852, before the close of the administration, he became administrator de bonis non of said Maston's estate, and that as such administrator he administered the estate until April, 1854, when he made a final settlement in the Probate Court of Cooper county, and that on such final settlement being made the court ordered that the said property, etc., be retained by him and his said wife, Mary, as legatee as aforesaid, then said legacy and property etc., aforesaid vested absolutely in the defendant as husband of the said Mary, and the plaintiff is not entitled to recover the same, or any part thereof, from the defendant, and the jury must find their verdict accordingly.”

Thereupon the plaintiff took a non-suit, with leave to move to set the same aside.Gardenhire, Parsons and Hening, for plaintiff in error.

I. The question as to whether the defendant had reduced the property in controversy into his possession as husband was a material question in the cause. The second instruction asked by plaintiff should have been given; for, unless the husband did reduce the property of the wife to possession during coverture, he acquired no title, and at her death it passed to her heirs. His possession as administrator was not such a possession as gave him the absolute property. (In the matter of the estate of George Singer, 2 Ashm. 462; 1 Ashm. 331; 12 Vesey, 496; Elms v. Hughes, 3 Dessaus. Ch. 155.) For...