Wilson v. Craig

• Decision Date: 09 June 1903
• Citation: 175 Mo. 362,75 S.W. 419
• Parties: WILSON v. CRAIG et al.
• Court: Missouri Supreme Court

75 S.W. 419

175 Mo. 362.

WILSON v. CRAIG et al.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

MARRIAGE—ABANDONMENT BY WIFE—SUBSEQUENT MARRIAGE—ADULTERY—DOWER.

1. Plaintiff refused to accompany her husband from Ireland to the United States on the ground of ill health. She received letters from him after his arrival, and subsequently came to the United States; but, after being informed by her husband that by reason of a difficulty with her parents he was going to the territories, she made no effort to live with him again until more than seven years had elapsed, when, on erroneous information that he was dead, under the advice of certain clergymen, she married another. Her husband also remarried without divorce, and died, leaving his property to his children by his second wife, without having communicated with plaintiff or without her making any effort to ascertain his whereabouts or communicate with him. Held, that plaintiff had voluntarily abandoned her husband, and was not, therefore, entitled to dower in his estate, under Rev. St. 1889, § 4532, providing that if a wife voluntarily leave her husband, and go away and continue with an adulterer, she will be forever barred from dower, unless her husband be voluntarily reconciled to her and suffer her to dwell with him.

Appeal from St. Louis Circuit Court; P. R. Flitcraft, Judge.

Action by Margaret Wilson, alias Craig, against Mary Louise Craig and others, for partition. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

L. Frank Ottofy, for appellant. A. R. Taylor, for respondents.

FOX, J.

This is an action for partition of real estate described in the petition. That we may fully appreciate the issues determined by the trial court, we will here quote substantially the pleadings in this cause:

The amended petition alleges: That on the 24th day of March, 1897, James Craig died intestate and seised of an estate of inheritance in certain real estate described in the petition, situated in the city of St. Louis, Mo., which is agreed by the parties to have been correctly described. That upon one of said parcels of ground, being lot 24 of Nicholson Place, a deed of trust to secure the payment of a note for the sum of $2,500 was executed by the deceased, conveying the same to defendant Wade as trustee, and that defendant Bofinger was the owner and holder of said note. That said James Craig left as his sole heirs the plaintiff, who is his lawful widow, and the defendant William John Craig, his lawful child and the only issue of his marriage with plaintiff. That on or about the 8th day of May, 1897, the plaintiff elected to be endowed absolutely in a share of said parcels and tracts of land equal to the share of a child, as will appear from her election to be so endowed absolutely, pursuant to sections 4523 and 4524 of the Revised Statutes of Missouri for 1889, which election was duly filed for record in the recorder's office of the city of St. Louis, Mo., on May 14, 1897, and is recorded in Book 1410, at page 7. That the parties hereto have title to said real estate as follows: The plaintiff is entitled to the one-half part of said estate; and the defendant William John Craig is entitled to and claims the other one-half part; but the defendants Mary Louise Craig and Emma Craig also claim a life interest in the said property by virtue of the will of said James Craig, deceased, dated December 11, 1893, and probated in the probate court of the city of St. Louis on April 5, 1897. That defendant Wade is interested as such trustee, and defendant Bofinger as cestui que trust, and that by the provisions of said will the brothers and sisters of said deceased would be entitled to a remainder therein, contingent upon the death of said defendants Mary Louise Craig and Emma Craig without issue; but that plaintiff is unable to state whether or not any brothers or sisters of said James Craig are in being, and, if dead, of whom their heirs consist, and hence she is unable to make them parties hereto, and that she does not know what interest said parties do or would have in the property aforesaid, and cannot, therefore, enumerate the same. Wherefore plaintiff prays that partition of said real estate may be made between the parties plaintiff and defendant according with their respective interests therein, and that, if partition in kind cannot be made without great prejudice to the owners, the said real estate may be ordered to be sold and the proceeds appropriated according to the respective rights and interest of the said parties. The said petition was filed June 11, 1897.

The original answer of Mary Louise and Emma Craig was filed June 16, 1897, and admitted that James Craig made his last will and testament, and thereby bequeathed property to them, but denied every other allegation of the petition.

The amended answer of defendants Mary Louise and Emma Craig was filed on the 18th day of October, 1897, and is as follows: "Now come Mary Louise Craig and Emma Craig, and by leave of court file this their separate amended answer to the amended petition, and state that it is true that James Craig made his last will and testament, and that it was admitted to probate on the 5th day of April, 1897. And, further answering, these defendants deny the allegations of the amended petition, except as herein specifically admitted. And these defendants say that they admit that Craig was married to the plaintiff on or about the year 1833, at Garvagh, Ireland. And they further state that after said marriage said James Craig, with the knowledge and consent of the plaintiff, came to the United States of America, and made his home in St. Louis, Missouri; that after said separation between said James Craig and the plaintiff, the plaintiff, well knowing the home and place of abode of said James Craig, did voluntarily abandon and separate herself from him, and did refuse to live with him as his wife, to wit, on or about the year 1836; that afterwards, in the year 1836, the plaintiff, well knowing the residence and abode of said James Craig to be the city of St. Louis and state of Missouri, did come to the state of Pennsylvania, did thereafter continue to live in said state, well knowing the residence and abode of said James Craig to be St. Louis, Missouri, and did voluntarily live apart from and separate herself from said James Craig; that thereafter the plaintiff, after such separation, and well knowing the residence of said James Craig to be St. Louis, Missouri, did voluntarily separate herself from said James Craig, and did intermarry with one Thomas Wilson, to wit, at Philadelphia, on or about the year 1843, and thereafter, with full knowledge that James Craig was residing at the city of St. Louis, unmarried, continue to live and cohabit with said Thomas Wilson as his wife, and did bear children to him. And these defendants aver that by reason of the foregoing facts the plaintiff forever forfeited all claim as the wife or widow of James Craig. And these defendants aver that James Craig, well knowing of the marriage of the plaintiff to said Wilson, did in the year 1856, thirteen years after the marriage of the plaintiff to said Wilson, lawfully marry the mother of these defendants, who were born of said marriage. And these defendants say by reason of the premises the plaintiff is not entitled to any interest whatever in the estate of said James Craig, but is forever barred therefrom. Wherefore they pray judgment for their costs."

The plaintiff's reply to said amended answer was filed on the 1st day of November, 1897, and is as follows: "And now comes the said plaintiff, and for her reply to the separate amended answer of the defendants Mary Louise Craig and Emma Craig herein denies each and every allegation of new matter therein contained. And for further reply to the said separate amended answer plaintiff says that the said James Craig did against her objection, to-wit, about the year 1835, leave her in Ireland when her son, defendant Wm. John Craig was an infant about four months old, and while she was in delicate health, unable to endure the hardships of ocean travel, and was advised by her attending physician that a journey across the ocean would imperil her life, and that he then promised to return to her, or to send for her, and not forsake her for more than two years; that said deceased thereupon came to the United States, and became a resident of the city of Philadelphia, in the state of Pennsylvania, where he resided for about 12 months thereafter, and, unmindful of his marital obligations to the plaintiff herein, did then and there attempt to contract matrimony with one Miss Woodburn, and that because of his former marriage to plaintiff, then not, nor never since, dissolved, he was apprehended, and fled to the state of Missouri, which was then difficult of access and could only be reached by river and overland by stage; that just prior to his leaving Philadelphia as aforesaid he by letter informed plaintiff that he was `going to the territories, where no one could touch him'; that thereupon plaintiff continued to abide with her parents in Ireland, and did within a short time, to wit, two years, after the receipt of said information from said James, herself come to the United States, taking up her place of abode with one Robert Craig, a brother of said James, at Summit Hill and Philadelphia, Pennsylvania; that said James Craig well knew all the time that the plaintiff's place of abode was in said Philadelphia with his brother as aforesaid, but that he never communicated with her thereafter, or in any wise apprised her of his desire to live with plaintiff again as her husband; that about the year 1840 the said James Craig went to said Philadelphia without plaintiff's knowledge; that he well knew at the time that plaintiff was then abiding in said Philadelphia or in its vicinity; that he then visited his said brother Robert, but that he did not in any wise...