*1 сonvincing satisfy mind of the chan- as to so clear and evidence beyond cellor a reasonable doubt.” beyond doubt that satisfy us a reasonable
The evidence does not gave understand, encouraged plaintiff believe, Ruf daughter. suggested It is his home as a not she had been taken into plaintiff kept between relationship, assumed, if was a secret that such Ruf why Ruf Edward Ruf; if did not Mrs. not, something Surely plaintiff’s know of it? she would mother urging* her com- confided it to her When her mother was mother. plete equip herself to earn her her education and that means thing livelihood, own natural for her to have it would have been the heir; my duty said, adopted “Uncle Frank me his has me made nothing kind, is to him.” either then or at But she said simply other time. Her mother lived them the testified: “She simply same as Ned Ruf lived with them. She was a member of ’’ any adoption. I family, and household. she was never heard appears it a And should the mother be said record figure, standing above others of the hеroic head shoulders personae questions pro- dramatis in this lawsuit. Her answers to the concise, pounded crisp clear, to her on the stand are so witness partisan import tinge, and so devoid of as to all absolute bias but verity. imbued with plaintiff It is could have been inconceivable adopted the belief child that she was the of the Rufs without disclos- ing it to her mother. had such belief is belied her own That she guidance parental needed, conduct: when real advice or was she sought making her mother and not the Rufs. Her her home with and Aunt, case, Uncle under the circumstances of this no adoption preferred evidence them: it well be that she could petted to be a luxury favorite a home of and wealth rather than facing struggles making toiler way incident to own one’s in the world. pleasure While that home she contributed to the happiness of master, adequate its but she from him received re- equity turn. findWe no in the case. judgment concur, еxcept the circuit court is affirmed. All
Frank, J., sitting. not J. H. Appellant, v. Charles E. Porter et al. 16 S. W.
(2d) 49. One,
Division March
R. P. Harry Kay appellant. Stone and H. *4 respondent.
Irwin & Bushman for SEDDON, deceased, Plaintiff, the widower of Emma C. brought action, seeking a widower’s share the real estate of under,, of, deceased wife 320 and virtue Sections under, Revised of, Statutes act virtue *5 Assembly General which approved 29, 1921, was March which on and operative 20, 1921, page became and on June of effective [Laws being petition counts, The the first one cast in count two lands, owned ascertain and determine certain described the title possessed by Miller
and her death, wife and the deceased at situate of Missouri; partition being one County, and the count second conventional separate petition lands. of are same The counts in form. Collier,
The defendants Emma de- the brothers and sisters of are except defendant, All default, ceased. of the defendants made E. Porter, ad- ivho answered. The answer of said defеndant marriage mits plaintiff Emma Collier or about Novem- 1916; 1925, 1, ber March, that Collier said Emma died testate surviving heirs- issue, leaving surviving without as her her, at-law, her defendants, sisters, plaintiff, her brothers and husband; possessed that Collier of all the Emma died seized and lands plaintiff described in petition; filed a renunciation that of the will of Emma Collier within her six months after death. answer denies plaintiff any right, that has in and title, or interest among the lands petition, avers, described other mat- ters, day “on September, 1917, deceased, that the 8th Emma Collier, she, made and executed her last and testament wherein bequeathed the said Emma H. Collier, devised and her husband, J. dollar; Collier, the sum of one she further be- that devised and queathed to her sisters, Erkson, Rosa Ellis and Nettie each sum dollar, one brothers, her E. B. A. B. Porter and each the sum one dollar, property, and all the balance of her both real and personal, which of her she death, she owned at the time bequeathed to defеndant, copy this E. Porter; of which will is hereto A, part attached and marked Exhibit and made a petition. says
“Defendant property that all of of which the said possessed Collier died acquired seized property was her through inheritance separate means of her own labor, was possessed by marriage prior owned plain- to her tiff, J. H. Collier, acquired and that property no of said joint labor of said J. H. Collier and the- said deceased, 1916; after intermarriage year their about the that said property, and separate each all thereof, remained of the said Emma Collier at time of her death. says “Defendant that, at the time the death said Emma Collier, she was sixty years age, more than and that she had been previously occasions; married two former first husband long died a number years ago, and she thereafter intermarried year 1903, second husband about the and resided with him until year about died; time said second husband Emma Collier thereafter remained a widow until her intermarriage plaintiff year about the after her marriage plaintiff with the mis- Collier *6 excuse, her just treated and left abandoned her without cause and but because Emma the said Collier refused to her to deed plaintiff; inhuman, that his treatment toward was cruel and her although and was she sick and needed attention often the care and physician totally of a yet and blind, was almost said Collier failed charge to taking administer her to wants and for her to would her doctor, living separate and that he abandoned had and was from the said death; Emma Collier time of at the her said abandon- ment been year had continuous for more than one next before the death of the Collier. said Emma says that,
“Defendant further Collier, while the said Emma de- ceased, was with husband, intermarried her second said husband was sick and afflicted with during tuberculosis all time of said mar- riage, great charge and was Collier; a upon and care said Emma that she and her said second upon, husband lived and were the a farm, owners of physical but because of his neither condition said Emma Collier land, nor her husband able farm said was to and physical because of his condition the was said Emma Collier upon unable required to wait her said husband and he care and person wants; long attention of some other administer to his prior marriage her of the Emma with said Collier second husband, during widowhood, and her this defendant worked for the Collier, said upon wants, Emma her her waited and administered to husband, and that, during the of the said second life this defendant husband, for worked the said Emma Collier her attended their crops upon farm, wood, fences, and hauled cut. their built upon did farm; and, besides, fact all the their he work said long nursed the husband of said Emma a number Collier for years during tuberculosis; that, with of his his affliction because physical condition, given attention the care and this defendant request to the husband of the at Collier, said Emma sister, very great benefit of upon him a was arduous and entailed during burden, and of this defendant himself had time family undertaking and was himself, that, to farm for order to administer request husband, to the wants of his sister and her and at the deprived
of the him- husband, said Emma Collier and her he enjoyment society family, self of the of the of his own and left wife work farm, their own while went of his he to the aid said sister and her husband cultivated farm waited their them; that, nursed after death the said husband herein marriage Collier, referred until her with H. the said J. she re- widow, during mained a such widowhood this defendant con- Collier, sickness, during tinued work for Emma nurse her said lands, her improvements prop- cultivate to make such erty requested, as she for all of which neither -the said paid nor her husband, them, ever to this defendant nor services, labor was for his work and but said anything whatever agreement understanding'between this de- performed Collier and fendant, and said Emma serv- husband, that, if this defendant did continue to render second long as husband, her said so to the said ices survivor, live, death should them either compensation all for his said services receive defendant *7 personal every and real, kind both character, and property the possessed. should die seized and which such survivor mixed, of says contract was made between himself that said “This defendant long prior the mar- and her former husband to said sister and the Collier, plaintiff, H. Emma Collier J. the said and the riage between agreed Collier, Emma she and understood that the said if it was and husband, husband, referred to as the second said herein survived her to convey property or before her death the defendant all her at would by deed, proper services, either or such of said in consideration effectually legally convey property said to conveyance as would intermarriage defendant; that, said Emma Col- after the poor Collier, J. H-. the said Emma Collier was with said lier neglected nearly blind; greatly she was and was health and by H. con- Collier, said J. this defendant abandoned often carry agreement so as aforesaid to for to out his made care tinued upon, waited for live, should nursed cared long her so as she property, sister, upon such and worked her continued his said Collier; that said serv- to the death the said Emma services down knowledge Collier, J. H. were with the of the said ices rendered says, alleges be, that, prior fact to defendant to this marriage they H. with the said Emma of the said J. Collier prenuptial whereby of them was to retain into a contract each entered lands, tenements, goods 'and separate property all of the as their marriage; they possessed of their which each at the time chattels procured possession H. the said con- J. thereafter the said Collier produced. now destroyed same, and it cannot tract and says property that all of which the said “Defendant from, long prior diеd seized she second husband Collier inherited marriage IT. much property with J. and that of said through defendant, the work and labor of this for was accumulated whatever; compensation that, pursuance which he has received no fully performed upon made, agreement heretofore said part convey defendant, Emma Collier undertook to of this the said by will, of a to this said execution herein defendant petition; A Exhibit a of this referred to marked and made executed will, time Collier said she conveyance separate property it as a of her said in accord- executed agreement, carry in an effort ance with the of said out terms defendant, into entered agreement long before in con- by sideration of said services so rendered him.” prays The. answer judgment court, declaring defendant, and decree of the Porter, E. owner, Charles to be the sole and simple, absolute in fee general equitable of the petition, prays lands described relief. generally
Plaintiff demurred, specially, answer of de- fendant, E. Porter, which demurrer was overruled trial court. Thereupon, plaintiff require filed motion the de- fendant, upon Charles E. elect which Porter, of the several de- up fenses set go trial, his answer would he motion to elect was plaintiff likewise Thereafter, overruled the trial court. filed reply, joining issue the several averments of the answer.
The action equitable joined was tried issues raised and pleadings, jury, without the aid of a and the trial resulted in a finding, judgment decree and in favor defendant, against plaintiff. unsuccessfully moving After a new trial and for judgment, plaintiff arrest of the was allowed appeal to judgment this court from the decree and nisi.
It was admitted on respective parties plaintiff the trial *8 and Collier November, 1916, they were married in and that were husband and wife at Collier, the death of Emma which occurred 1925; in March, being by that Emma Collier died without survived a child, descendant, being; or other in Emma Collier died own- that ing, possessed of, petition; seized and in the lands described the and that said purchased separate lands were with the funds of Emma Collier, deceased. The evidence further discloses that Emma Collier testate, died and probate her will that was to in the Probate admitted Court of County April Miller 16, on will Collier The of Emma was by duly subscribed September testatrix 8, 1917, the and was by attested By directing two will, witnesses. testatrix, said the after payment the just of all her expenses, bequeathed debts and funeral to her sisters, Bosa brothers, Ellis and Erkson, Nettie and to Porter, E. B. Porter and each, Albert the sum of one dollar to and husband, bequeathed to her Collier, plaintiff appellant J. H. the and herein, provides: the sum of one dollar. The further all “And my property, the balance of personal, both real and I at death, my give bequeath I my and brother, Porter, to E. Charles of hereby Eldon, I appoint my Mo. Ida Porter executrix without bond.” testamentary granted Letters were and to Porter, issued Ida of wife respondent, Porter, Charles E. executrix of estate, testatrix’s the County, upon probating Probate of Miller Court said will. of 30, 1925, April On days probating fourteen after the of testatrix’s granting testamentary will and the of letters her estate, the plaintiff appellant herein, Collier, testatrix, J. H. the widower of filed written renunciation of will, 16, 1925, and on testatrix’s June granting testamentary two months after of letters testa- election his written filed appellant also plaintiff estate, trix’s of personal property and estate of the real and one-half take debts subject possessed, died seized said Emma Collier 1919, Statutes 321, Revised provided Section deceased, as of said approved on Assembly General provided by act and as declarations, written page 29, 1921. March [Laws statute, so electing take under renouncing will, the acknowledged by the duly were appellаnt, plaintiff filed Miller in and for notary public before a plaintiff, J. H. County, Missouri. Porter, tends to E. respondent, on behalf
The evidence brothers and respondent youngest that said show was the his home and made sisters of Emma had resided he age years or eleven with Emma Collier from the time he was ten year reached marriage Ida, until with in when he had age thirty home for him- years, which time he established a marriage wife; prior 1906, respondent, in that, self and his to his services, performed about Porter, chores, other like (then place Yates), Mrs. and assisted home his sister Emma in husband, Yates, the care of his John who was af- sister’s then aged in man, flicted and who died tuberculosis spring marriage year 1916; that, 1906, respondent after his looking continued to work place, at times about the Yates home after live-stock, helping gather crops, building fences, cutting firewood; gathering during John the life of Yates, declared, husband, Yates, Collier’s former had presence respondent’s (Yates), of certain witnesses, that he wife, Emma, and his respondent, were Charles E. indebted for work and respondent services performed had for them caring for Yates, looking John and in place after the home of John wife, Emma; Yates and his it was intention John wife, Emma, repay Yates and his respondent, reimburse *9 the work and respondent, services rendered prop- with whatever erty John Yates wife, Emma, might have; and his Emma that and Collier, during the life of husband, her former John Yates, and there- after, frequently persons had stated to various that she was under obligation brother, to her Porter, Charles E. for all that he had done for and her, husband, for her former Yates, John and that she could only repay him property, with her and purposed that she in- and tended to possessed leave whatever she owned and to her brother, respondent Porter, herein, Charles repay.him for the services so rendered. plaintiff-appellant
The evidence' behalf of the was to the effect that, marriage plaintiff after and Emma formerly Mrs. Yates, during and husband, the life of Emma’s former John Yates, “kept up” Emma brother, Porter, by had her Charles supplying family; clothing for him Charles Porter and and that provisions quarrels indolent, domestic friction and and was the canse of some was Yates, John and husband, former Emma Collier her between and John Yates and both plaintiff; Emma Collier and the between brother, plaintiff objected supplying against and had family, clothing and provisions for himself Porter, Charles with and appears to be undis- had It and remonstrated with Emma therefor. Emma, lived plaintiff wife, herein and his puted record during marriage relation, the wife at apart at and that times against which plaintiff, action for one time commenced an divorce seemingly action, however, abandoned divorce was prosecuted final decree or or, least, action to a the divorce was not judgment. seemingly Emma Collier was The аforementioned periods during made and of those of domestic subscribed one difficulty wife, plain- separation plaintiff between knowledge will, tiff until that he had information or of said denied after the death of his wife. alleged testimony respecting making of the oral con-
tract, alleged respecting the terms conditions of oral contract, pursuance which contract the furtherance respondent, E. Porter, claims the will of Emma Collier was made, given by respondent, Ida the wife of the E. Porter. testified, She as follows:
‘‘Q. Now then, you Mrs. ever Porter, did conversation Mr. regard Charley with Yates pay and his wife with (respondent) get Well, up A. was to for his labor? were there we visiting, sitting cookstove, and we all around were inside and Mr. said, getting awfully going Yates ‘We we feeble, are are old stay us, thing to have someone and the best we could do would to let these children live on farm two here—move the old ’ them; then, house—and then what leave we have to after there said, you was the farm ‘I there, over east believe had he better ’ money, this farm they sell them and leave and so sold that farm Barnett, bought they little house lot would call us Q. they present Charley (respondent) whenever us. wanted Was you Q. Yes, say? at that conversation related? A. sir. did What he A. He said him it made feel for bad them sit and talk us that agreed way, and he and I both we would take of them all care days Q. you carry their Did pursuance life. that out in to this Yes, agreement? Q. you frequently A. sir. Did them talk to after sir, about it? A. and Mr. Yates has Yes. often said he wished they enough pay would have for what us we had done them. Q. your Q. Was presence that in husband? A. Yes, sir. Was (Charles Porter) he help ever called that he didn’t them? Q. every they you A. He went for him. go, time called Did too? *10 sir; Yes, A. I every they for went time called him.”
708
I. At the of appeal, outset our of we con consideration this are respondent, fronted with appeal, a motion to filed dismiss Charles E. ground оriginal printed of Porter, upon brief that the fil assignment After the
appelant of errors. contains no before the ing appeal, but of said motion dismiss our docket was set down day upon the cause supple appellant herein a submission, filed argument origi printed respects which is with brief, in all identical mental except printed brief, supplemental appellant nal that brief of sets separately, upon appropriate out an page, additional under an “Assignment heading, or Respondent, title an of Errors.” filed herein a sup has motion to strike the amended and plemental appellant files, upon brief of ground from the that supplemental appellant time, amended and brief of was filed out of compliance in and was not filed with Rule this court. Both of of respondent’s with motions as submitted were court taken required, ruling case, the main proceeding and hence a before motions appeal. ruling
to a and decision of the merits of provides appellant 15 of shall Rule this court “the brief for distinctly court, and allege the trial shall the errors committed (1) contain statement of the addition thereto: a fair concise argument; law, or reiteration, facts of the without case statements (2) statement, order, points on, a of the relied with numerical permitted citation of reference thereunder, authorities and no argument argument, specified; (3) printed at the to errors not a appellant’s original brief if desired.” discloses printed Reference to (1) facts that the same contains: a fair and concise statement “brief,” case; (2) order, statement, a numerical of the points by appellant, appropriate citation relied on authori- argument. (3) original thereunder; printed ties “While separate “assign- formal appellant brief does not contain entirety, brief, in its yet of the errors,” ment examination out) (and “distinсtly alleges points discloses such brief ’’ finding, namely, decree court, the trial that the errors committed wrong party, judgment of the trial was for the court evidence, contract proof, was insufficient to establish the respondent and respondent’s made between answer to have been husband, John Yates. former sister, by appellant’s respondent be misled nor this could Neither court by appel- original court relied brief to the errors of the trial grounds judgment decree and lant as for a reversal respondent aforesaid, not are motions, trial chancellor. The two and denied. therefore overruled grounded, well both motions are Co., Empire v. Mo. Trust [Amick
709 II. Appellant insists that a wife defeat, by will, cannot testa ment, the statutory rights marital of her prop husband in the real erty by owned wife, the if and, attempted the wife has statutory rights defeat such marital of her hus by will,
band such will or the is testament of wife subject statutory rights husband, marital of her of beneficiaries take the devised real subject statutory rights marital of husband. property belonging in real rights of a husband
The marital statute, by pro- her death and the time of are fixed his wife at the in by surviving husband, steps taken and followed cedural to be prescribed are likewise rights, himself of such marital order to avail appellant’s prior wife, of by 1921, In to the death statute. approved which Assembly act, was enacted
Collier, the General operative on effective and 1921, which became 29, on March reading as follows: 1921, 20, June his of in real estate may which widower have
“The estate hereby abolished, hy curtesy,’ 'tenancy is wife, known as deceased in real share shall have the same lieu the widower and in thereof widow provided by law of deceased wife estate rights of husband, with the same in the her deceased real estate nothing thereto,- provided con- election and the same limitations any by the estate act shall be so construed as defeat tained taking effect of curtesy prior to the date shall have which vested 1921, page this act.” [Laws of this by this division 1921 construed The aforesaid Act of (2d) Co., 5 S. W. Sedalia of O’Brien v. Trust court in the recent case repealed, 1921 the said Act of held we ruled and 74, wherein gave to 1919, Statutes by implication, 320, Revised Section any child, dying without wife widower, in the of his event inheriting, one-half of the descendants, being, capable other subject payment absolutely, wife, personal estate real and under, ruled, furthermore, we debts, and wherein of the wife’s share widows widowers and of, 1921, both by said Act virtue statutes, same under the consorts of their deceased in-the real estate deceased con- will of the surviving if renounces the and, consort by 329, Revised Section prescribed sort, in and time as the manner one-half of take election to 1919, and files an Statutes and makes provided as time manner and estate, in the real deceased consort’s 1921, by Missouri 1919, and Laws 323, Revised Statutes Section surviving such 1919), then (enacting R. S. 325, page new Sec. to, under, pursuant widower, takes widow or consort, whether Sec- 1919. The said 321, Revised Statutes provisions Section (or husband “When provides: 1919, tion Revised Statutes wife) shall die without child or other descendants being, capable of (or, widower) widow inheriting, shall entitled: . . . second, to one-half of personal the real and belonging estate wife) (or, husband the time her) his (or, death, abso- lutely, subject to payment wife’s) (or, husband’s debts.” interpolated parenthetical [We clauses to conform to our construction of Section 321, Revised Statutes affected the Act of 1921, as announced O’Brien case, supra.] It has repeatedly been ruled this court wife that a cannot defeat by will given the interest the husband Section Stat- *12 320, Revised utes 1919, in the real estate belonging her to his at time of wife the death, and that surviving may will of the husband renounce deceased wife and disclaim thereunder, tаke one-half interest of the estate, subject debts, testatrix’s as payment of testatrix’s provided in 320, Section 169 Ash, Revised Statutes 1919. v. [O’Brien 283; Mo. 166; Spurlock Waters v. 178 183 Herboth, Burnett, Mo. v. 524; Gilroy Brady, 205; Mo. Miller, v. 195 Mo. 299 Hafner v. Mo. 214.] supra, in Trust held, Co.,
While court has O’Brien v. Sedalia (Laws 1921, 1921 that the effect of the enactment of the Act of 119) page by implication, Section repeal, 320, was to Revised Stat in 1919, and, thereafter, utes that both widowers and widows share statutes, the real estate their consorts under the same so deceased 321, now takes Statutes that the widower under Section Revised 1919, rights, which section instead un declaratory is a widow’s 1919, der 320, formerly, Section Revised Statutes and then as pursuant pur will wife to renunciation of the of the deceased required such cases under suant to of the widow in election, as is held, also, nevertheless we that Sec statute, said section of the have 1919, 320 and Revised Statutes are twin sections and 321, tions stand by lawmakers, to form law together, and were so intended one establishing rights of husband and wife in the the relative placing thereby of each conditions, other under the same Herboth, 178 equal footing. husband and wife v. [Waters 171; 531; Gilroy v. Spurlock Burnett, 524, 183 Mo. 166, Mo. v. 401; 245 209; Frazier, 391, 195 Mo. v. Mo. Head 205, Waddle Brady, ington By analogy, the 963, 214 W. (Mo.), v. Woodward S. Revised of Section cases, cited, 320, ruled under construction above are rule, decided, of law therein 1919, principle, Statutes notwith 321, 1919, Statutes equally applicable to Revised Section Statutes 320, Section Revised standing repeal, by implication, of 143 held, Lilly Menke, v. 1919, Moreover, aforesaid. we as rights by will defeat the dower cannot 137, Mo. that a husband 321, Revised Statutes surviving his widow under Section parties was it admitted herein The record discloses of his appellant the trial written renunciation filed a accept provision made refusing wife, deceased time, within will, manner, him form and for in the appellant 1919, prescribed by 329, Statutes and that Section Revised real electing filеd his written declaration take one-half of the also personal time belonging Emma Collier estate to the said time, pre- death, manner, and within of her in the form and 325, (known Sec. page of Missouri as new 1921, scribed Laws sufficient 1919). appellant’s action R. S. Such in con- lands him, absolutely, title to one-half of the to vest subject deceased troversy payment herein, the debts unless 1919, wife, provided Section Revised Statutes under, rights statutory and allowances appellant be barred from his 1919, which section of, virtue Section Revised Statutes provides: go away wife and con- “And if husband leave his reasonable cause with an abandon her without adulteress, tinue space separate apart and continue to live from year preceding death, or dwell with another one whole next adultery continuously, woman in a shall be forever barred state of he curtesy al- homestead, statutory inheritance, jointure, from personal his wife' wife, real аnd unless lowances estate voluntarily with her.” him suffer him dwell reconciled to it respondent, While in the answer of living separate appellant from “had abandoned and was *13 her abandon- death, Collier of said Emma at the time and that year before ment been continuous for than next had more one evidence Collier,” there is some death the said Emma and while apart in and had lived appellant before that his wife record us such not during marriage relation, yet evidence is times weight appellant sufficiency or fact that character, as establish con- a reasonable cause and had had abandoned wife without separate space of one whole apart live and from her for the tinued to year guilty of preceding appellant her had been death, next or that prescribed Sec- any of and mentioned in said the other derelictions Nor establish the 333, tion does the evidence Revised Statutes рrescribed appellant guilty any if that, fact had been “voluntarily appellant’s recon- derelictions, wife was not-thereafter fact, her.” ciled to him” and did not “suffer him to dwell with In respondent separa- last on behalf of discloses that the the evidence or some two appellant tion between his wife occurred and years Collier, thereafter prior to of Emma and that three the death together appellant house, and his dwelt the same wife together less, about or before dwelling month, so until continued the wife’s death. that, the mar any “prior evidence
Neither is there substantial en riage Collier, they J. with the the said H. Collier tered in a prenuptial whereby contract of them was each to retain
as their her) (his, or, separate property lands, all of the goods tenements, possessed (they) chattels which each at the marriage; time of their H. the said J. procured possession thereafter Collier of the said contract and de alleged stroyed same,” answer respondent, any attempt by respondent E. Porter. Nor was made to show antenuptial substance, content, provisions or such terms con tract, agreement by if such a had been contract ever entered into appellant proof between and his wife. Not must the show beyond a antenuptial such an reasonable doubt that contract made, proof but it appear must also from such the terms of unequivocal; contract clear, and, were absent definite such char of proof, acter find of such court cannot the existence an ante- nuptial alleged much contract, give antenuptial more to such contract any application. force, Miller, 214, 229, effect or v. Mo. [Hafner and cases there cited.]
III. by The respondent, claims, however, Charles E. Porter, (Secs. virtue of the 7323-7328, Married Women’s of 1889 R. S. Act (we 1919), Co., w'hieh act intimated in O’Brien v. Trust Sedaliа supra) repealed was not of 1921 affected the Act (Law's p. abolishing 119), curtesy, decedent, right separate has ^íe respecting to contract her property, personal, real and such contract so by Emma enforceable, made Collier is either before or after death; that, while, although, Porter, respondent, Charles E. controversy does claim under, not the real virtue (as of, such) of Emma the will of Emma nevertheless Collier respondent per evidences indebtedness services by him, formed pay and her intention to for the services rendered performed pursuant respondent, alleged respondent oral contract entered into and between although Emma Collier, attempted, evidences an furthermore performance ineffectual, oral contract *14 the theory said Emma Collier. In words, other it seems to be the and claim of respondent, E. will Porter, that the' of per deceased, evidеnces the intention of Collier to on form, part, alleged the oral contract between Emma Collier and respondent; will, such convey, a contract to or to to the promisee the of promisor, the in consideration of made serv ices promisor to be fully per rendered to promisee, the the promisee equitable formed the part, on in creates trust the property of promisor; the that, promisor, death of the the without having promise effectually or out, performed, or the carried sought promisee contract, part, be lands to devised the
713 attempted performance of such in an promisor, will of the the trust; equitable where- impressed with an promise contract, or are property, and devised hold of the equity take fore, a court of promisor deceased which the done, to equity do, in and order be promised agreed do. had conceding inasmuch hand, appellant, on other while
The the take and elected to wife will of his deceased as he has renounced the personal estate real and (under 1919) one-half of 321, R. S. Sec. death, he of her belonging Collier, at the time wife, Emma to his strenu- payment debts, property subject takes such wife’s of to es- wholly insufficient ously herein is contends evidence that the agreement, or be- alleged contract, oral making tablish the of the' Nates, and husband, John tween Emma Collier her former on the indebtedness respondent, Porter, Charles E. to establish Such contention part respondent. of Emma Collier to the said respecting appellant of the evidence leads to a consideration us respondent, upon by making relied alleged oral contract subject- respecting terms, provisions, and full, in our alleged quoted matter of oral in contract. We have evidentiary all evidence case, statement of the facts of the which which bеaring thereon, we find the record evidence testimony respondent’s of the Such evi- wife, Ida Porter. dence, sufficiency and considered thereof, must be viewed light adjudicated of the cases. Hayworth 26, In v. 236 this of this Hayworth, 28, S. W. division court, speaking alleged of an claimed oral contract similar to one Ragland (then Judge been Commis herein, through have made sioner), said: character of the “The enforcement of contracts exception equity one here involved en- is an courts of grafted upon exception The the Statute of Frauds. is one that pro sparingly exercised, and then within well-defined rules (1) alleged Among following: cedure. rules The oral those are the definite; (2) proven must clear, explicit, contract must be it be pleaded; (3) proof pleaded as must as of the as be such contract to leave chancellor that the no of the reasonable doubt the mind alleged performance has was in fact made that full contract constituting had; (4) been performance work must be such sought as is referable solelv enforced. to the contract be [Walker Bohannan, 119, 1024; 136, Moreau, v. 243 199 Berg Mo. 147 v. S. W. (N. S.) 9 Mo. S. evidence should W. L. R. A. light reviewed of these tests.” Speaking sufficiency proof similar respecting land, Graves, J., speaking oral convey P. contract devise court, Bohannan, this Mo. division of in Walker v. (perpetrated 136: letter “To the strict under obviate these frauds exception application stat- Frauds), the Statute *15 714 but (of frauds) adopted equity, by courts
ute here invoked procedure-rules, which not rules of like without well-defined perpetration of safeguard against itself, as statute would be a (1) alleged con- phases; oral many frauds. rules cover i. e.: The The as proven must explicit definite; (2) tract be it be clear, must pleaded; (3) by conversations such cannot be established contract upon either or casual one-hand, ancient on or too loose too other; (4) un- alleged must be fair and oral contract itself not conscionable; (5) pleaded proof contract must be such of the as as to chancellor leave no doubt in the mind reasonable of the performance, the full contract, alleged, as was in fact made and that had; parties so far perform, as has been lies of the hands (6) constituting performance as referable the work such is must be solely might such sought to and not enforced, the contract be reasonably (7) be contract; other and different referable to some upon legal the contract must adequate be one based considera- tion, performance upon so hand, upon that its the one but not other, advantage bespeak wrong, would de- an unconscionable good (8) manding equity; proof relief in of mere conscience disposition by convey by by way gift, devise will or or as deed a services, sufficient, reward for not must shown a but be real there convey contract to devise acts deed, will or made before the performance only relied were had. ... It is where very justice of thing clear, refusal of would is so that the relief deep-seated wrong itself amount to a and fraud party, equity courts of act, right. and as said this is fickle- before The ness of land titles should averted. be The wholesale enforcement such bring wrongs would than contracts more absolute the absolute denial of in all relief such dis- cases. It should therefore be cerning eye and ear appealed proceed. that the chancellor to should single The purpose prevention should a fraud, be real rather imaginary than an protect one. His decree should substance, rather than shadow, support and the point evidence his decree should a real outgrowth and actual fraud as the of a failure to a enforce certain, speсific clear, By reasonable and contract. this we mean not parties, contract betiveen the parties contract made gathered together loose declarations has after death sealed lips.” applicable procedure rules of respecting which the evidence such together oral contracts tested, is to measured and with the juristic jurisdictions authorities of other this and supporting the application of procedure, exhaustively those rules of are discussed Middlebrook, the earlier cases of Rosenwald v. 188 58, Mo. Grantham v. Gossett, Mo. prescribed by foregoing several
When the tests established rules procedure applied (above are herein quoted) evidence respecting making contract, oral respecting *16 apparent and alleged contract, it of such and conditions the terms wholly Porter, E. has indisputable, respondent, that Charles think, we alleged in his answer. prove to the contract as failed and establish agreement, alleges respondent contract, the oral The answer that defendant, understanding this and made “between and was had husband” second E. Emma Collier and her Porter, and said (John himself Yates), was made between and “that contract (John (Emma Collier) her former husband and said sister and the Collier Yates) long prior marriage said Emma to between the Porter, respondent, Charles E. plaintiff.” and wife of Ida testify to the Porter, was the who undertook to witness this making content, its and contract, oral and as to by death, also long lips after of John had been sealed and Yates respondent is, after The himself the death of Collier. Emma (See. 5410, course, disqualified, and under the statute incompetent, opposite R. 1919), testify respecting alleged contract, S. to party, being Respondent’s that parties, or dead. wife testified thereto (Emma husband) getting John Yates former “We are Collier’s said: awfully gоing stay with old and someone feeble, and we are to have us, two children best would to thing we could do let these live on farm then what old house—and leave here—move them;” you “I (referring we have to to farm), another believe money.” most, had better sell farm At them the leave given foregoing by Ida Yates, conversation of John if as related directory Porter, appear suggestive merely would to have been on part, testimony his nothing in of Ida Porter and there is indicate, Yates, would or to that Mrs. after- show, tend whatsoever suggestions, ward Emma or that she Collier, Mr. Yates’ assented to acquiesced agreed thereby. or Nor therein, to be bound does identify farms referred to conversation John Yates the two controversy, which, said conversation with ing accord- the lands here purchased parties trial, “were admissions separate Collier, with uncon- funds of Emma deceased.” The Yates, troverted John the former evidence herein tends to show that nothing respondent, death, husband of Emma left Collier, property personal Charles E. and estate but that the real passed otherwise, death, of John or to his will, Yates Yates, Collier; surviving widow, afterward Emma respondent claim filed no uncontroverted shows evidence further demand, against Yates, or John performed, services the estate of deceased, claim, title, asserted no or interest belonging respondent’s John Yates his death. several of While witnesses husband, testified former John Yates, frequently they had stated and declared that were indebted they respondent performed him, for Avorkand services purposed him for such repay and intended reward services property they,
with whatever either pos- of them, might have and such sess, statements, expressions, of gratitude, and of an intention reward, do not of themselves evidence a contract. v. Har- [Collins rell, 219 309; Mo. 279, Hayworth Hayworth v. (Mo.), 236 S. W. finding of the trial chancellor, incorporated as a judgment nisi, decree “long prior is that death of Emma prior marriage Collier and to her plaintiff, with the J. H. she made agreement and entered into a contract terms which she agreed contracted and defendant, Porter, that if he, the defendant, would care for her and nurse during sickness, cultivate her lands and do such other work for *17 her as may necessary during be for and her natural life, then, and in that event, she, the said Collier, would to leave the said defendant, Porter, compensation Charles E. as for his as services aforesaid, property every all real, per- kind and description, both sonal and mixed, of which she should die seized possessed; court further finds that faithfully said Charles E. Porter per- formed all of his contract with the said Emma Collier, and that the said in fulfillment of her contract, executed her last testament, which she be- devised and queathed all of to the said Charles E. Porter, save and except Sum of onе dollar husband and dollar one each to remaining defendants; the court further finds that the said agreement contract and between the said Emma Collier and Charles E. Porter was in prior full at, force effect to, the time of marriage of the said Collier; Emma Collier with the said J. H. the court further finds from that, the evidence reason of the fact the property of charged Emma Collier was with the contract made with the said Charles E. aforesaid, as prior marriage plaintiff said Emma Collier herein, with the the said precedence rights took plain- contract over the marital of the tiff, J. H. Collier, and that plaintiff for reason right, has no title, claim or any interest of or in any kind nature of the real estate hereinbefore described.” respondent urges that this court findings should defer to the chancellor, oppor conclusions the trial who, because
tunity to view respective parties, witnesses, and their while
testifying greater advantage trial bеlow, on the a has than judge credibility this court to of the of the witnesses and testimony. equity causes, of their It is true in where conflicting testimony evenly is balanced, and rather is predicate there substantial evidence which findings disposed decree of chancellor, the trial we defer somewhat are findings; the chancellor’s such deference to but we accord findings appear findings chancellor’s such cor- where to be rect, court, equity causes, in is never concluded finding- Handly (Mo.), Bank facts the court below. v. [Farmers’ (2d) 891; S. W. As 880, Schnecko, 250, Benne v. 100 Mo. we said, the evidence herein is insufficient establish equitable oral contract relief respondent relies for the prayed findings in his trial chancellor are answer, and the therefore evidence. incorrect, unsupported by any substantial are Appellant interest,
IV. in an undivided one-half claims, addition to in a simple, fee in in is entitled to controversy, the lands that he life, remaining thereof, during homestead in the one-half for and appellant to a during The claim of or widowerhood. denied. controversy must lands in homestead record here first find no evidence place, In the we any part thereof, were used and controversy, or lands or wife, husband and and Emma Collier occupied by J. H. right of place, In second a homestead. them, by either by Chap statutory prescribed wholly right, a purely homestead 1919, 5857, Revised Statutes 1919. Section Statutes 44, Revised ter housekeeper such provides: “If Statute, Homestead surviving a or minor Mm widow leave family shall die and head of pass in such widow . shall to and vest . . his homestead children, children,” etc. to such widow both, ifor there be children, pro Homestead Statute, Statutes Revised Section family, die, head of a being housekeeper or widow, “If a vides: *18 her surviving children, homestead, minor child or and leave vest pass . . . shall to and by , her death. owned the lands our children,” italics are or etc. in such minor child own.] [Above provision Homestead Statute is there In no section of the surviving in the widower of a homestead law for the continuation gen may though have owned land even the wife wife, a deceased appellate a homestead. The courts occupied the same as eral title and has succession repeatedly held homestead of this State positive law, and that uphold force of. statute nothing to it but the limited right homestead is of, the to, succession continuation persons prescribed by the statutory provisions, and to the [Keyte App. 394; 25 v. Peery, Mo. Richter v. Homestead Statute. 516; 588; Chapman 159 v. Gray, 144 Casler v. Mo. Bohnsack, Mo. (Laws page 119), of 1921 McGrath, 163 The Act Mo. 292.] nothing Statute, did abolishing Homestead or curtesy, added Statute; hence,, operate an amendment the Homestead that act as surviving of a deceased no gave of 1921 widower wife the Act belonging though lands, thereof, right, homestead even homestead. occupied used as her death, to the wife at her were E. respondent, appears improbable Inasmuch as it of a evidence, proof, additional Porter, to furnish be able sufficiently substantial character to establish the oral contract al- leged prescribed or to answer, procedural meet the tests adjudicated announced in judg- rules similar cases court, reversed, ment nisi should be and the cause should be remanded with judgment to enter a petition, directions the first count of the adjudging plaintiff, J. H. title, simple, to have fee abso- lutely, to an undivided one-half of lands, adjudg- the described ing defendant, simple have title fee remaining lands; proceed undivided one-half of the described and to partition of said described lands under second count petition. CC., Lindsay Ellison, It is so ordered. concur. foregoing opinion by adopted
PER Seddon, C., CURIAM: The opinion judges All of except the court. concur, Frank, J., sitting. not Fleming W. and Francis
Nellie Fred M. Re Fowlkes v. Wilson, Railways City ceivers of Kansas Appellants. Company, S. (2d)W. 511. One, Division March