153 Mo. App. 586 | Mo. Ct. App. | 1911
William E. Bradley and Julia A. Bradley were husband and wife, without children. They lived to an old age and died a few days apart, he on the 16th and she on the 29th of March, 1909. He left a will whereby he gave to Julia A. all of his personal property during her life. Defendant was appointed administrator of the estate. Upon Julia’s death plaintiff, as public administrator, was put in charge of her estate, and he then brought this action to recover the following personal property claimed by defendant to belong to him as administrator of her deceased husband:
One note for $2500 payable to William E. Bradley and Julia A. Bradley or either of them, interest paid to January 4th, 1909, $200 paid on principal.
Deposit in the Farmers and Commercial Bank in" the name of William E. and' Julia A. Bradley, $309.36.
Deposit in the Bank of Holden in the name of William E. and Julia A. Bradley, $181.10.
The action is based on the claim that the property thus held by these parties was an estate in the entirety and as such, upon the death of William, it became the sole property of Julia.
The evidence showed the note for $3600 was given as purchase price of a tract of realty owned by William and Julia as an estate by the entirety. That the note for $2500 was given to them for borrowed money and of that sum Julia contributed $1083.75, which was drawn by her from the bank out of her separate account, the remainder, $1416.25, was drawn by William by check on their joint account. The evidence further showed that the deposits which constituted the joint account were made by William and all checks on that account were drawn by him, with one exception when Julia drew $25.
The trial court found that plaintiff was entitled to the note for $3600, on the theory that besides being made payable to both, it was the proceeds of the sale of real estate held by entirety, and, as such, was the property of the surviving wife. The court further found that the note for $2500 was not held in entirety, but that plaintiff was entitled to $1083.75 of it on the ground that that was the sum Julia put in it. The court found for defendant as to the balance of that note, and also for both bank accounts. There were some other findings not necessary to notice, not being in dispute. Both parties appealed.
Defendant claims that while formerly there could, be estates in entirety in personal property, such estates have been, in effect, abolished by the married woman’s statutes Avhich have been enacted in this state in recent years, Avhich, in a property sense, disunite husband and wife. So that his full claim is that while the estate in entirety in lands has been preserved to husband and Avife, such estate has been destroyed as to them in all personal property. The latter part of this claim is in direct conflict with the views of the Supreme Court. [Frost v. Frost, 200 Mo. 474; Bains v. Bullock, 129 Mo. 117.] In the latter case it was said that while the statute abolished the legal unity betAveen husband and wife, which gave rise to estates by the entirety, it left the estate itself intact. In the former case it is said that the Married Woman’s Statute did not have estates by entirety in view and did not intend any interference therewith, md that such estates had not been altered in any respect. And to the same effect, considering similar statutes, are- the cases of Boland v. McRowen, 189 Mass. 563, and Pray v. Stebbins, 141 Mass. 219. Therefore estates by the entirety still existing as at common bw, the case should be determined unaffected by the Married Woman’s Statute.
The note for $3600 Avas not only payable to William and Julia, which alone was sufficient, but it arose from the sale of lands held by them in entirety. Undoubtedly it was an estate in entirety, and the trial court properly ruled that upon his death the full title remained in her.
We consider that the evidence and circumstances .surrounding these persons, in connection with the presumption just stated, leave no doubt that it was the intention of the husband, and indeed the wife’s also, that the survivor was to have the whole of the accounts. The case of Platt v. Grubb, 41 Hun 447, is much like the one _ before us, and it was there held that upon the death of the husband the wife took the whole account as survivor.
We have given much consideration to’ the note for $2500. We think it is not improper, ordinarily, in an estate of this kind to test one party’s right by the right of the other. May we not say, by way of illustration, that a test of plaintiff’s right, as representing the wife in the capacity of administrator of her estate, is the right the husband would have had in that note had he survived her? For the right to claim by reason of survivorship should be mutual; the right of each depends upon a corresponding right of the other; for, to be an estate by the entirety each must have an ownership in the whole of the estate. Therefore, if the husband could not rightly have claimed the whole of the note, had he survived his wife, she cannot claim it as his survivor. The ground stated as the reason why the husband could not have claimed it as an estate by the entirety, is that to allow such claim would be to annul the statute protecting the separate property
But we think the husband made no effort to reduce to possession the wife’s money which made up a part of that note. The facts show it to be a transaction of the wife’s. She invested her money in the note in conjunction with her husband’s money, and she, as well as he, had the note taken in the name of both so as to become an estate by the entirety. This, undoubtedly, she could legally do; for the statutory emancipation of married women, as regards their rights of property, enable them to deal with such property as though they were unmarried. Would the statute, therefore, have stood in- the way of the husband’s claim of an estate in the entirety had he survived the wife? Do not the facts disclosed in the record leave the statute without application? We do not intend to intimate a decision of a case not before us and only indulge in these suggestions by way of illustration.
But we conclude that, at léast as to the wife’s claim, which is here involved, the note was held as an estate by the entirety; and when William died, Julia remained the owner of the whole of it, and plaintiff, as her administrator, is now entitled to it.
There have been other grounds suggested to the effect that where the wife has advanced a part of the money for which a note is given to her and her husband, it is unjust to allow him the whole of it in case he outlives her. The same suggestion could, of course,, be made were the positions of the parties reversed. Under the law, it seems there ought not to be given any weight to this suggestion. We cannot see how heed can be given to it without destroying estates by the entirety except in .cases of devises or gifts. For if the considera
The only ground where it can be said that the wife, or her heirs, could reach the estate claimed to be held by the entirety, for the amount of her money that went into it, would be in the supposition spoken of above, where the husband used' her money for the purchase without her consent in writing as provided by the statute to which we have already referred. But, as we have seen, no such case is presented.
It is insisted that the case of Johnston v. Johnston, 173 Mo. 91, stands in the way of the views above expressed. There are some statements in the opinion in that case which cannot be reconciled with the case of Frost v. Frost, supra, and in all points of difference we must follow the latter. That case refused to allow an estate by the entirety in favor of the surviving husband in a note taken by him in name of himself and
It must, however, be admitted that the learned judge, in discussing the law of the case, shows that his view is that where either husband or wife advance unequal portions of the consideration for a note, or purchase money of land, an estate by the entirety will not be created, but each will be separately interested in the deed or note to the amount contributed. This, it is stated, results from a growing aversion, or unfriendliness, of the courts to such estates. In proof of this, extended reference is made to many well known and highly respected authors. But on reading these it will be seen that they are discussing estates in joint tenancy and have no reference at all to estates by the entirety. There is no question but the text writers and opinions of judges have shown a disposition to avoid giving effect to joint tenancies on account of the frequent injustice of survivorship, and when the parties advanced unequal portions of the consideration, they were held not to have intended-a joint tenancy with survivorship;
. Besides, as we have already intimated,- the two estates are so fundamentally . different in so many respects, that what is said of one ought not to be applied
But. the law was the same (so far as estates by the entirety are concerned) before that exception was added; for it had been held that the statute abolishing joint tenancies did not apply to estates by entirety. [Gibson v. Zimmerman, 12 Mo. 385.] And in Hall v. Stephens, 65 Mo. 670, it was said the statute in adding the exception of husband and wife, only enacted what was already the law without its aid, and so the same was said of a similar condition in New York. [Bertles v. Nunan, 92 N. Y. 152, 157.]
As already shown, the antipathy to joint tenancies, grew out of the resulting incident of survivorship; but, correctly speaking, there is no survivorship in estates by the entirety. ‘The surviving party only remains pos-. sessed of the title he.had from’ the beginning. Owners of the estate by entirety take per tout et non per mi. [Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Bertles v. Nunan, 92 N. Y. 152; Stelz v. Shreck, 128 N. Y. 263; Barber v. Harris, 15 Wend. 615.]
The true nature of estates by the entirety and the distinction between them and joint tenancies, is, pointed out by Judge Valliant in Frost v. Frost, supra, and the statement is made that the case of Johnston v. Johnston, supra, is regarded as of that class where a husband uses his wife’s money to purchase land, taking the title to himself; that being a fraud against which the law will grant relief.
The judgment will be reversed and the cause remanded that judgment may be entered for the plaintiff.