Armstrong v. Johnson, 93 Mo. App. 492

Armstrong v. Johnson

93 Mo. App. 492 | Mo. Ct. App. | 1902

BLAND, P. J.

I. The two certificates of deposit and the two notes being made payable to P. J. and Margaret Stumm, the law presumes that they were the joint owners of them in equal shares. State ex rel. Toebben v. Brady, 53 Mo. App. 202; Tisdale, Ex’r v. Maxwell, 58 Ala. 40; Tiedeman on Commercial Paper, sec. 18. There is no substantial evidence in the record tending to overthrow this presumption as to either of the two promissory notes, and substantially none, except the testimony of Allen, tending to show that the consideration for the two certificates of deposit was not equally furnished by P. J. and Margaret Stumm. The evidence of *500Allen was objected to on the ground that tlie statements, testified by him to have been made by P. J. Stumm at the time of the transaction, were inadmissible for the reason that they were made in the absence of Margaret Stumm, the other party in interest. On the theory that one-half of the money was furnished by Margaret it is clear that P. J.. Stumm could not prejudice that interest by any declaration he might make concerning the fund to a third party in her absence, and in determining the admissibility of this evidence we should not, therefore, lose sight of the fact that the certificates were made payable to both P. J. and Margaret Stumm and the legal inference to be drawn therefrom, i. e., that each furnished one-half of the money. If we infer, as we are bound to do, from the wording of the certificates and from the transaction, that Margaret and P. J. Stumm furnished the money in equal parts with the understanding that P. J. should deposit the money in the bank and take certificates of deposit therefor payable to them jointly, it is clear that in a suit between them, if living, concerning Margaret’s interest in the certificates, declarations by P. J. made at the time of making the deposits, to the effect that the whole of the money was liis, would not be res gestae but self-serving statements and wholly inadmissible as evidence. No more is this character of evidence admissible in a suit between the administrator of Margaret Stumm and the executor of the estate of Peter Stumm.

II. Since the enactment of sections 4339 and 4340, Revised Statutes 1899, the earnings of the wife and money derived from the sale or rent of her separate real estate, is her separate property. Brown v. Brown, 324 Mo. 79; Bartlett v. Umfried, 94 Mo. 530; Gilliland v. Gilliland, 96 Mo. 522; Schmalhorst v. Peebles, 71 Mo. App. 219. As to such personal property rights she is a feme sole. Leete v. The State Bank of St. Louis, 115 Mo. 184. In this state of the statutory law, the common-law rule of survivorship as applied to husband and wife is inapplicable, because inconsistent with *501the statutes. Toebben v. Brady, supra; Robinson’s Appeal, 30 L. R. A. 331, and note.

As the judgment must be reversed for the admission of illegal testimony over the objection of the plaintiff, we deem it unnecessary to notice the other assignments of error made by the plaintiff as they may not occur on a retrial of the cause.

The judgment is reversed and the cause remanded.

Barclay and Goode, JJ.3 concur.