Winn v. Riley

• Citation: 151 Mo. 61,52 S.W. 27
• Parties: WINN v. RILEY et al.
• Decision Date: 19 June 1899
• Court: United States State Supreme Court of Missouri

52 S.W. 27

151 Mo. 61

WINN v. RILEY et al.

Supreme Court of Missouri.

June 19, 1899.

HUSBAND AND WIFE — MARRIED WOMAN'S ACT — TRUST — PROBATE COURT.

1. Though the married woman's act of 1875 (Rev. St. 1879, § 3296; Rev. St. 1889, § 6869), giving a wife the right to the separate use of her property, did not deprive a husband marrying her before the passage of the act of his common-law right to reduce her property to his possession, yet such right did not apply to property acquired by gift from her father after the passage of the act.

2. Under Rev. St. 1879, § 3296 (Rev. St. 1889, § 6869), giving the wife the right to her separate property unless she, by writing, give her husband authority to dispose of it for his own use, in the absence of such consent, the husband's use thereof did not transfer it to him, but he held it in trust for her.

3. She could treat it as a trust fund or as a debt, and, having elected to treat it as a debt against his estate, it became a money demand against it, over which the probate court had jurisdiction.

In banc. Appeal from circuit court, Clinton county; W. S. Herndon, Judge.

Action by Julia A. Winn against O. P. Riley and others, administrators of the estate of James N. Winn, deceased. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Joel Funkhouser, M. B. Riley, and E. C. Hall, for appellants. Thos. W. Walker and Turney & Goodrich, for respondent.

BRACE, J.

This is an appeal from a judgment of the circuit court of Clinton county allowing a demand for $7,814.53 in favor of the plaintiff, Julia A. Winn, widow of James N. Winn, deceased, against his estate, on appeal from the probate court of said county. The demand allowed is as follows:

The Estate of James N. Winn, Deceased, to Julia A. Winn, Dr.

To cash received by deceased at the time and in the sums as following, the same being separate estate of plaintiff, to wit:

                May 15th, 1875. To cash.................. $   200 00
                 "    "     "     "......................     400 00
                Feb. 28, 1877. To cash paid in part
                 satisfaction of note owing by deceased
                 to George P. Dorris at request
                 of deceased.............................   1,000 00
                March 1, 1878. To cash paid on said
                 note at request of deceased.............     830 00
                March 1, 1879. To cash paid on said
                 note at request of deceased.............     830 00
                July, 1881. To cash......................     500 00
                May, 1883. To cash.......................   1,500 00
                April 9, 1888. To cash, and land converted
                 into cash by deceased....................  1,919 53
                May 1, 1894. To cash......................  1,000 00
                                                            ________
                  Total debit ............................ $8,179 53
                                Same, Cr
                May 15, 1875. By furniture....... $ 200 00
                May 1, 1894. By carriage            165 00
                                                  _________
                    Total credit.......................... $  365 00
                                                           _________
                    Balance due plaintiff................. $7,814 53
                

The evidence tended to prove, and under proper instructions the jury found, that the several items of money charged in the demand were given to the said Julia A. Winn at the dates therein stated by her father, Berryman Shaver, and charged to her by him as advancements; that they came into the hands of her husband, and were used by him in his business. The several objections urged to the judgment may be answered without setting them out specifically. The married woman's act of 1875 went into effect on the 25th of March, 1875 (Sess. Acts 1875, p. 61). The plaintiff and the deceased were married prior to that date. Prior to the passage of this act, the husband, by the marriage, acquired title to the personal property of the wife in possession, and the right to reduce to his possession for his own use and benefit her choses in action. In Hart v. Leete, 104 Mo. 315, 15 S. W. 976, it was held that the right of the husband to so reduce his wife's choses in action into his possession was not a vested right, and that the act of 1875 applied to all cases where the husband had not theretofore possessed himself of his wife's personal property. In the subsequent case of Leete v. Bank, 115 Mo. 184, 21 S. W. 788, this ruling was disapproved, and it was therein held that the husband's right to acquire title for himself to the wife's property by reducing it to his possession was a vested right, of which the act of 1875 could not and did not deprive him; consequently, that as to such right acquired by a marriage prior to its passage that act did not apply. In the able and exhaustive opinion of Sherwood, J., delivered in that case, the language of Edwards, J., in Westervelt v. Gregg, 12 N. Y. 202, is quoted with approval, aptly and tersely stating the principle as follows: "A right to reduce a chose in action to possession is one thing, and a right to the property which is the result of the process by which the chose in action has been...