79 Mo. 53 | Mo. | 1883
This is a proceeding begun in 1878, in the probate court of Cole county, by the administrator of the estate of Wm. H. Eans, against the widow of said Eans, to recover certain assets of the estate, and is based on the following sections of Wagner’s Statutes, page 85:
Section 7. If the executor or administrator, or other person interested in any estate, file an affidavit in the proper court, stating that the affiant has good cause to believe and does believe, that any person has concealed or embezzled any goods, chattels, money, papers or evidences of debt of the deceased, and has them in his possession or under his
Section 8. If any person interested in any estate file a like affidavit, against an executor or administrator, the court shall have the same power to cite him and compel his appearance and examination, as in case of other persons.
Section 9. If any such person refuse to answer proper interrogatories, the court may commit him to jail until he answer or be discharged by law.
Section 10' If any person charged and cited as aforesaid, shall appear and in his answer to the interrogatories,, deny the truth of the facts alleged in the affidavit, the issue shall be tried by a jury, or, if neither party require a jury, by the court in a summary manner, and judgment shall be rendered according to the finding and for costs.
Section 11. If any person be convicted of unlawfully detaining such goods, money, chattels or effects, books, papers or evidences of debt, the court may compel the delivery thereof by attachment, or in case the person convicted be the executor or administrator, shall compel him to inventory, and have the same appraised as the property of the estate.
The affidavit provided for in the 7th section of the statute, was duly filed by the administrator in this cause, and charges that the defendant had concealed and embezzled various goods, chattels, wares, merchandise, notes, accounts, books, certificates of deposit issued by the National Exchange Bank of Jefferson City, Missouri, and the Eirst National Bank of Jefferson City, Missouri, and various other evidences of debt and choses in action of the deceased, amounting in the aggregate to about $12,500, and constituting the whole of his personal property, and that she had them in her possession and under her control, and refused to deliver them up to said administrator on demand, etc. The defendant being duly cited, appeared in the probate
On a trial of the issues before the probate court — a jury having been waived — the court after hearing the evidence and arguments in the 'cause, found that the defendant had in her possession, and refused to surrender, a large amount of goods, chattels and effects of the deceased, of the description mentioned in' the affidavit and enumerated in the finding, consisting mostly of promissory notes on various parties, and certificates of deposit in certain banks, for large sums of money, and certificates of shares of stock in a certain bank, some articles of personal property, title papers to real estate, some money and other evidences of debt payable to the deceased, and also the household and kitchen furniture and other property possessed by the deceased, at his death, as alleged in the complaint; and thereupon ordered that the defendant deliver up said effects to said administrator forthwith, and that plaintiff recover his costs, etc. From this finding and judgment of the probate court, the defendant, in due time, appealed this cause to the circuit court, where, at the May term, 1879, the cause was again heard de novo, by the court, a jury having been waived, and Henry Flanagan, Esq., acting as special judge, by stipulation of the parties, the Hon. E. L. Edwards, judge of said court, having been of counsel in the cause. At this hearing before the circuit court, as appears from the bill of exceptions, a large amount of evidence was taken ; but for the purpose of properly disposing of this case, it will be sufficient to state its substance generally.
It appears that plaintiff’s intestate died in September, 1879 ; that for the last ten or twelve years of his life he had been engaged principally, in merchandising in Russellville, Cole county, Missouri. The business was conducted in his name, the bills and invoices were made in his name, the notes and accounts were taken and entered in the same manner. At the time of his death, there was on hand, in the store, where the business was conducted, a general as
It also further appears that the intestate, ~W. H. Eans, and the defendant intermarried in 1848, and lived together as husband and wife, from that date, to the time of his death in 1878, a period of thirty years ; that at the time of
It likewise further appears, that just before the marriage, and in contemplation thereof, the defendant and the intestate, for the purpose of preserving said property of the wife, with its rents, profits and proceeds to the sole and separate use of the wife, or to such use as she might think fit to appoint; and to protect the same from all liability to the payment of his debts, and also to exclude therefrom all right, title or control of said intended husband, his executor, administrator or assignees, duly made and entered into the following marriage contract, to-wit:
“An indenture made and entered into between "William H. Eans, of the first part, and Maria Louisa Scruggs, of the second part. Whereas, the said M. L. Scruggs is seized in fee of the undivided half of the following described real estate, (describing it,) and whereas, also, the said M. L. Scruggs is possessed in her own right absolutely, of the following described personal estate, that is to say: (certain slaves, cattle, etc); and whereas, a marriage is intended shortly to be solemnized between the said Eans and the said Scruggs upon the contract of which said marriage the said Eans has agreed, if the same shall take effect, then notwithstanding the said marriage, he and the said Eans, his executors, administrators or assigns shall not and will not inter-meddle with or have any right, title or interest either in law or in equity in or to any part of the rents, profits or issues of any of the above described property, whether real
"Upon the marriage, which followed this contract, the husband and wife lived on the old homestead of the wife, until 1858, when they sold out, and moved to what was afterwards called the “ Hemstreet farm,” where they resided until 1865, when they again sold, and moved to Russellville, where they remained until the husband’s death in 1878. The husband upon the marriage took the possession and management of his wife’s property; and during the
There was evidence tending to show that the husband Eans, when in good health, was an active business man, in the conduct and management of his affairs, and that what he said was law about the place. There was also evidence tending to show that, for some considerable time, his health was not good, and that he did but little work. It also appeared that, for a time, he was insane and at the asylum in Eulton some five months, and that he was considered insane after he left Eulton. There was some evidence tending to show, also, that the wife did much and nearly all the man
It may be added, also,“that while the evidence shows tha the wife had knowledge that the husband was conducting and managing all the business operations in his own name, yet it fails to show any express assent or dissent on her part from this mode of managing and conducting the same; nor does it show any express claim by the husband, that the property in question was his, and not that of his wife. It also further appears that all the original property, owned by the wife at the time of the marriage, had long been sold and converted into other property, and that all the various enterprises of the husband, during this period of thirty years, had been based, (with the exception herein-before stated,) upon the capital originally owned and possessed by the wife; or upon the profits, increase and proceeds thereof, coupled with the personal labor, oversight
At the conclusion of the testimony, upon this state of facts, the plaintiff asked the following declarations oí law, which the court refused, and the plaintiff' excepted, to-wit:
1. The court declares the law to be that if G-. 'W. A. Gordon is administrator of the estate of "W". H. Eans, deceased, then he, in this action, is entitled to a judgment for the delivery to him of all shares of bank stock issued in favor of the said "W. H. Eans in his lifetime, all certificates of deposit in banks made payable to the said "W". H. Eans, or order, all notes, bonds and evidences of debt made payable to the said "W. H. Eans, or order, also all books of account used by him in business transacted in his own name, and all other evidences of indebtedness to him, or evidences of title to real or personal property, provided the same are now and at the commencement of this action were in the possession or under the control of the defendant and by her detained from the possession of said administrator.
2. Plaintiff is entitled to recover all goods, wares, merchandise, etc., in the store-house in which deceased did business in his own name before his death, that there remained at the time of his death, provided that the same now is, and at the time of the commencement of this action were, in the possession and under the control of the defendant and by her detained.
3. Although it may appear to the court that by the terms of an antenuptial contract entered into between the defendant and W. H. Eans in 1848, defendant reserved a sole and separate estate in the land and personal property she then owned; that between then and 1857 the same was sold and the proceeds collected by ~W. H. Eans with knowledge and without objection on the part of defendant; that afterward the said proceeds were invested in a farm conveyed to W. IT. Eans, upon which the said Eans and defendant lived as man and wife from 1857 to 1865 ; that the said farm was then sold and the purchase money paid over
4. The plaintiff is entitled to recover all personal property to which Eans, in his lifetime, was possessed and had the legal title, provided the same is now and at the commencement of this suit was in defendant’s possession and by her detained.
5. Although from the evidence in this case it may appear that defendant, in a suit in equity, might charge W. H. Eans’ estate with a part or the whole of her separate estate by him received, still in this proceeding the plaintiff is entitled to recover if the legal title was in Eans at the time of his death, accompanied with a claim thereto and had so been for more than ten years.
6. If the legal title to the property sought to be recovered in this action was in ~W. H. Eans at the time of his death, and it had so been for more than ten years, with the knowledge and assent of defendant, then plaintiff ought to recover, although defendant in equity' may be entitled to the whole or some part thereof.
At the instance of defendant, the court, over the objection of plaintiff, gave the following declarations of law, which were excepted to by plaintiff, to-wit:
4. - It is necessary in this case for the plaintiff to prove that the defendant has embezzled or concealed the property of W. H. Eans, deceased, charged in the affidavit, and an open and notorious possession of the property under claim of ownership is neither embezzlement nor concealment,
5. Under the pleadings and the evidence in the cause the plaintiff cannot recover.
The court thereupon, on its own motion, gave the following additional declaration of law, to which the plaintiff objected and excepted at the time, to-wit:
If the court find from the evidence that the property alleged by the plaintiff to be concealed and embezzled by the defendant, Mrs. Eans, is held by her under claim or color of right as her separate estate, and that to settle the respective rights of the administrator and the defendant to the property, an action at law or suit in equity is necessary, then the county court, as a court of probate, had no jurisdiction to entertain this proceeding, and the complaint ought to be dismissed.
Whereupon the court found accordingly, and thereupon dismissed the complaint for the want of jurisdiction in the probate court, to entertain and try the same. Erom this judgment of the circuit court, the plaintiff' has appealed to this court.
This, we think, is not the law. Sections 7, 10 and 11
In these proceedings the question is necessarily averred in the affidavit, and when its allegations are denied, as in this ease, necessarily involved in the issues to be tried. Without title in the intestate, the administrator clearly has. no standing in court; and when the defendant is the real owner, he or she certainly ought to be allowed to show that, fact, to defeat a recovery or conviction.
In the case at bar, the question between the administrator and the defendant was as to the ownership of the property in controversy. The plaintiff, on the one hand, claimed that permitting the husband to sell said property, receive the money therefor, and use the same in his business during the period of time and in the manner indicated by the facts in the evidence, was of itself, an appointment and disposition of the property, by the wife, in favor of the husband, within the meaning of the marriage contract itself. The .defendant, on the other hand, denies this proposition, and.
Whether the property has been thus appointed or disposed of, or still remains the separate property of the wife, as contemplated by the marriage contract, is, at most, a question of intent and fact, to be found by the jury, or the court, accordingly as the same is tried, under all the facts and circumstances in evidence, in connection with the marriage contract itself. Under the statute in question, we think the probate court had jurisdiction to hoar and decide these questions and others properly arising in the case, in the summary manner pointed out; and that it was error in the circuit court, on appeal, to dismiss the complaint for want of jurisdiction; and that it should have proceeded to hear and decide the question, under proper instructions or declarations of law applicable to the case made by the facts, as they shall appear in evidence at the trial. If any error should arise on the trial, we think it better to undertake to> correct it hereafter, than to anticipate, with more particularity, what those instructions or declarations should bo. They necessarily must depend upon the facts and circumstances as they may appear upon the trial.
Eor these reasons the judgment of the circuit court is