Wormington v. Wormington

• Decision Date: 04 February 1932
• Citation: 47 S.W.2d 172,226 Mo.App. 195
• Parties: DOCIA WORMINGTON, APPELLANT, v. SANFORD WORMINGTON, ADMINISTRATOR OF ESTATE OF RICHMOND WORMINGTON, DECEASED, RESPONDENT
• Court: Missouri Court of Appeals

47 S.W.2d 172

226 Mo.App. 195

DOCIA WORMINGTON, APPELLANT, v. SANFORD WORMINGTON, ADMINISTRATOR OF ESTATE OF RICHMOND WORMINGTON, DECEASED, RESPONDENT

Court of Appeals of Missouri, Springfield

February 4, 1932

Appeal from Jasper County Circuit Court.--Hon. R. H. Davis, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Leo H Johnson, Rex McPherson and Rufe Scott for appellants.

(1) A separation agreement and property settlement between husband and wife, is avoided by a resumption of the marital relationship and the wife is thereby endowed with all the rights of a wife and in event she survive her husband, is entitled to the provisions of the statutes of Missouri including dower, homestead, child's share in the personal estate, widow's allowance of $ 400 and an allowance in lieu of provisions for the first year. In the case of Roberts v. Hardy, 89 Mo.App. 86, the Kansas City Court of Appeals, so far as plaintiff can discover, decided this question for the first time in this State. Harrison v. Harrison, 201 Mo.App. 465, 211 S.W. 708; Seaman v. Illgenfritz, 15 S.W.2d 912; Fisher v. Clopton Admr., 110 Mo.App. 663; Johns v. Johns, 222 S.W. 492; In re Means Estate, 284 S.W. 186; Carter et al. v. Younger, 185 S.W. 435; Ahrens v. Ahrens, 169 P. 486; Hoskins v. Hoskins, 256 S.W. 1; Sherman v. Sherman (Ark.), 252 S.W. 27; Allen v. Allen (Kan.), 196 P. 1075; Coe v Waldrop (Ky.), 265 S.W. 274; Dillon v. Dillon (Nebr.), 171 N.W. 917; Rose v. Rogers (Tex.), 264 S.W. 954. (2) Property acquired by a wife under contract for separation and property settlement upon reconciliation remains her sole property. Roberts v. Hardy, 89 Mo.App. 86; Harrison v. Harrison, 201 Mo.App. 465, 211 S.W. 708; Knapp v. Knapp, 95 Mich. 474; Kehr v. Smith, 20 Wall 31. (3) The appellate courts of this State hold that the civil contract of marriage by an insane person, in order to be valid, requires only sufficient mind and memory by the contracting parties to understand and comprehend the nature of the relationship. Chapline v. Stone, 77 Mo.App. 523. The marriage contract or resumption thereof by an insane person is voidable but not void, and only subject to attack during the lives of the contracting parties and never after one of them has become deceased. Henderson v. Henderson, 265 Mo. 718; Doty v. Mumma (Mo.), 264 S.W. 656; In re Guthery Estate (Mo.), 226 S.W. 626. (4) The judgment of the probate court finding a person of unsound mind is not conclusive so far as contracts pertaining to the marital relationship are concerned. Payne v. Burdette, 84 Mo.App. 332; King v. Gilson, 191 Mo. 307; Gross v. Gross, 96 Mo.App. 486; Prine v. Prine, 34 L.R.A. 87.

J. T. Burgess, James E. Sater and E. C. Medlin for respondent.

BAILEY, J. Cox, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

Plaintiff filed her application in the probate court of Barry county, Missouri, under date of September 10, 1929, for her statutory allowances as the widow of Richmond Wormington, deceased, such claims being, respectively for $ 400 as absoute property and $ 2000 in lieu of a year's provisions. The claims were contested by defendant administrator, who filed an answer to the claim in the probate court, and upon due trial in that court plaintiff's right to such allowances was denied. In due time she took an appeal to the circuit court of the county and, thereafter, the cause was transferred by change of venue, first to Stone county, and then to the Jasper county circuit court.

In circuit court defendant filed an amended answer setting up in greater detail the same defenses pleaded in probate court. This answer alleges, that, on the day of March, 1928, an affidavit was filed in probate court of Barry county, charging that Mr. Wormington was a person of unsound mind and incapable of managing his business affairs; that upon due trial under said affidavit he was, on March 2, 1928, duly adjudged to be insane and incapable of managing his affairs and Sanford Wormington was thereupon appointed his guardian and curator and continued to act as such until his death; that after Sanford Wormington was adjudged insane, plaintiff instituted a suit in the Barry county court, the nature of which was, "to ascertain, determine, settle and set over to her as her individual property all the right she then had or might thereafter have in and to the property of Richmond Wormington;" (it appears this was in fact a suit for separate maintenance). It was further alleged that, with the authority and approval of the probate court of Barry county, this litigation was settled for the sum of $ 8000; that thereupon a written contract was entered into which, among other things, provided that, "the said Dosia Wormington, for and in consideration of the sum of eight thousand ($ 8000) dollars, the receipt of which is hereby acknowledged, does hereby release and settle all her rights, interest, claims, demands, privileges, dower and statutory allowances that now exist or may hereafter exist in and to any and all of the property both real and personal of the said Richmond Wormington which he now owns or which he may in the future acquire.

"'It being the intention of the said Dosia Wormington in accepting the eight thousand ($ 8000) dollars to forever settle, discharge and waive all rights, interests, claims, demands, privileges, statutory allowances and dower that she might have, by reason of being the wife of said Richmond Wormington if he should precede her in death; and that she nor her heirs nor any person or persons for her, or in her name or behalf, shall or will hereinafter claim or demand any right, title or interest, dower, or statutory allowances in any of the property, either personal or real of the said Richmond Wormington if the said Richmond Wormington should depart this life before the said Dosia Wormington.'"

It is further alleged that the $ 8000 was paid plaintiff and her receipt therefore duly executed; that, "from and after the date of the adjudging of the said Richmond Wormington to be a person of unsound mind he continued under said judgment as a person of unsound mind and under guardianship up to and including the time of his death.

"'Defendant further states that the plaintiff since receiving the $ 8000 as aforesaid has at all times recognized the validity of this contract and has kept and retained the $ 8000 and has not tendered it into court and has not offered in any way to return the $ 8000 so received from said contract entered into between the said parties.'

"Defendant further answering states that plaintiff having entered in to the agreement as aforesaid, and received the said sum of eight thousand dollars as aforesaid, is now barred and precluded and in all good conscience is and should be estopped from recovering the allowances asked for in her said petitions against the estate of the said Richmond Wormington, deceased."

Plaintiff filed a demurrer to the amended answer and also a motion to strike defendant's plea in bar, both of which, were overruled. Plaintiff thereupon filed a reply to defendant's amended answer the material part of which reads as follows: "For further reply, this plaintiff does say that in fact the said Richmond Wormington was adjudged to be of unsound mind by the probate court of Barry county on or about the day of March, 1928, and incapable of managing his business affairs. That at such time the said Richmond Wormington was living with this plaintiff as her husband, and continued to so live for a considerable time, after which she instituted suit for separate maintenance under which suit the settlement alleged by defendant was made by him with plaintiff, defendant acting for her said husband. That following such settlement and separation, the said Richmond Wormington lived with his son Sanford Wormington, his guardian for a time, and then returned to this plaintiff and became reconciled to her, and lived with her until his death, excepting for a short period of time when said defendant by force took her said husband to the asylum at Nevada, Missouri, on or about the 28th day of October, 1928, and kept him there until December 6, 1928, at which time he was released from such institution by the authorities thereof. That at the time of such reconciliation her said husband Richmond Wormington was not insane, and in fact had not been insane for a considerable time, if at all, his temporary incapacity being produced by diabetes, and hardening of the arteries, from which diseases, together with an attack of the flu, he was suffering at the time of such adjudication by the probate court of Barry county.

"That the said Richmond Wormington offered to and did become reconciled to plaintiff as hereinabove alleged prior to being taken to the said insane asylum at Nevada, and did abrogate and annual such separation agreement and settlement, and continued thereafter to live with plaintiff as her husband until his death as aforesaid on or about the day of June, 1929."

Upon the issues thus drawn trial was had to the court without a jury, resulting in a judgment for defendant. Plaintiff has appealed in due form.

At the trial plaintiff made a prima-facie case, whereupon defendant introduced court records and other evidence tending to prove the allegations of the answer. In fact there is no controversy as to the truth of the allegations contained in the answer, but there is a controversy as to the legal effect of the adjudication of insanity in the probate court and as to the settlement of plaintiff's suit for separate maintenance. The trial court took the view that the adjudication of insanity was final and binding and refused to permit plaintiff to introduce depositions and other testimony tending to prove Richmond Wormington was in fact sane during the period h...