Broughton v. Brand

| Mo. | Oct 15, 1887

Brace, J.

This is a suit in equity whereby the plaintiffs seek to have the defendant, in whom is vested the legal title to a lot in the city of Moberly, declared a trustee of such title for the benefit of the plaintiffs, and to divest him thereof, and have the same vested in plaintiffs. In May, 1883, the defendant, L. C. Brand, married Lulu M. Broughton, daughter of the plaintiffs, B. B. Broughton and his wife, Ann W. Broughton, and sister •of plaintiff, Mary C. Blackford. In the month of October following, tlm said Lulu died without children, leaving plaintiffs her only heirs-at-law. In August, 1883, her father, the plaintiff, B. B. Broughton, who lived with his family in Paris, Missouri, drew a check on the .bank at that jjlace for one thousand dollars, payable to L. C. Brand, or bearer, and gave it to Ms wife, directing her to write to their daughter, Lulu, who, with her husband, lived in Moberly, and send her the check ; which she accordingly did. Lulu received the check, handed it to her husband, who deposited it in the bank to his-own credit, and soon afterwards invested eight hundred and seventy-five dollars of the money in the property in. controversy and took the deed therefor in his own name. On the trial, the plaintiffs introduced evidence tending to prove that the one thousand dollar check was a gift from the father to his daughter, Lulu, and the defendant-that it was a gift to him; this issue of fact the trial court-found for the plaintiffs, and rendered a decree in their favor, as prayed for.

As is our duty in equity cases, we have carefully reviewed the evidence in this case, and while it is the invariable practice of this court in such cases to defer somewhat to the finding of fact of the chancellor, where there is a conflict of evidence, yet in this case we find it unnecessary to invoke this rule, for, excluding from our consideration that part of the plaintiff B. B. Broughton’s testimony in which he says: “I intended this money for my daughter and gave it to her,” which of all the-evidence was alone objected to, we think the conclusion reached by the circuit court is sustained by the weight-of the evidence.

This conclusion leaves for consideration the only question of law arising in the case. It is contended for the appellant that, although the money which he invested in the real estate in question may have been received by his wife during coverture as a gift from her' father, yet she having transferred the possession thereof to her husband, and he having invested it in said real estate, and taken a deed therefor in his own name with her knowledge and consent, she thereby made a gift of the money to her husband, it became his money, was so invested for his own use and benefit with her assent, and 310 trust resulted in lier favor in the legal title to the premises thus purchased ; and that the effect of section :3296, Revised Statutes, 1879, is to convert all the personal property of a married woman into a separate estate; that as to such estate a married woman is to be regarded as a femme sole, with power to sell, dispose of, or give it to her husband, or, if she sees proper, to permit him to invest it in his own name for his own benefit. In other words, that she has the same power over this statutory ■separate estate that she would have over her technical separate estate, as recognized and upheld by courts of ■equity. This, doubtless, would be true if the statute ■did nothing more than create a separate estate in the wife; in which case her jus disponendi would be absolute in any manner she might see proper to exercise it.

But the married woman’s act in this state does one ■thing more than simply to create a separate estate in the wife in her personal property. It limits the disposition of that property to her husband by prescribing the manner in which such disposition can alone be made and evidenced. And while, by the provisions of the act, the husband may, with the assent of the wife, reduce her personal property to possession for his own use and benefit, yet he shall not be deemed to have done so; “but ■the same shall remain her separate property, unless by the terms of said assent, in writing, full authority shall 'have been given by the wife to the husband to sell, encumber, or otherwise dispose of, the same for his own use and benefit.” R. S., 1879, sec. 3296. This restrictive clause constitutes the only difference between this statutory separate estate and that cognizable by a court of equity. Blair v. Railroad, 89 Mo. 383" court="Mo." date_filed="1886-04-15" href="https://app.midpage.ai/document/blair-v-chicago--alton-railroad-8008739?utm_source=webapp" opinion_id="8008739">89 Mo. 383. “To put an end to all investigations, the law plainly requires the assent of the wife to be in writing.” Rodgers v. Bank, 69 Mo. 561. “ The act was designed * * * to afford protection * * * against the effect of the husband’s reducing the property to possession, by providing that

no such reduction should be effectual which was not evidenced by writing signed by her.” McCoy v. Hyatt, 80 Mo. 130" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/mccoy-v-hyatt-8007662?utm_source=webapp" opinion_id="8007662">80 Mo. 130. There having been no such assent in writing signed by the wife in this case, her money, the gift of her father coming to her during coverture, invested by the appellant, her husband, in the real estate in controversy, was her separate property, was so invested withr out her assent, and the legal title thereto taken by appellant in his own name he holds in trust for her heirs, -as he did for her during her lifetime, and the plaintiffs, her heirs-at-law, under the law and the facts in the case, are entitled to the relief prayed for in their petition and to the decree rendered in their favor in the circuit court, which is, therefore, affirmed.

All concur, except Ray, J., absent.