Cason v. Cason, 28 Mo. 47

Cason v. Cason

28 Mo. 47 | Mo. | 1859

Scott, Judge,

delivered the opinion of the court.

We are of the opinion that the facts found by the court do not warrant the judgment. The question involved in this controversy is not, whether the land in part sought to be divided is the separate property of the wife, or whether the *49money witb which it was purchased was given for her separate use as against purchasers and creditors according to the general principles of law regulating the marital rights of husband and wife; but the case involves the construction of the third section of the act concerning dower of the code of 1845. If a father give his daughter money, though not to her separate use, with which property is purchased by her husband, from the spirit of the section under consideration a use results to the surviving wife, although, as against purchasers and creditors, that property would not be regarded as belonging to her. We regard the section under consideration as intending to give the wife the property which came to the husband by means or in virtue of the marriage. The father never would have given the money but for the marriage. The wife was the meritorious cause of the acquisition of the property. In this sense it may be said that the property came to the husband, in right of the marriage. The object of the statute was to restore to the widow the property undisposed of, which came from her side or family, as there was no issue of the marriage. The plaintiffs here are collateral relations of the husband and have no claim founded in reason or in nature to property acquired by means of his wife, who is a stranger to them. The act of 1849 concerning married women exempted from the payment of the husband’s debts property acquired by the wife during the marriage, and which, according to general principles, belonged to the husband. So in the construction of the fourth section of the dower act, it has been twice held by this court that where a female slave is given to the wife, thereby by operation of law becoming the property of the husband, and issue is born of that slave during the marriage, such issue is property coming to the husband in right of his wife by means of the marriage, and the wife will be entitled to the same as dower under that section.

There is no principle on which the argument can be supported that the trust resulted to the father of the defendant as he advanced the money. So soon as the money was receiv*50ed it was clothed with a trust for the benefit of the wife. As the husband received the money as a gift to his wife, it became hers under the equity of the dower law ; and if he invested it in other property, a trust would result to her. Nothing is better settled than that resulting trusts are not within the statute of frauds or perjuries.

Reversed and remanded;

Judge Richardson concurs. Judge Napton absent.