117 Mo. App. 629 | Mo. Ct. App. | 1906
In contemplation of marriage, Emily Smith and George W. Evans, on October 8, 1903,. entered into the following contract in writing:
“Article of Agreement.
“By and between G. W. Evans, party of the first part, of the county of Greene and the State of Missouri, and Emily Smith, of the county and State aforesaid. In consideration of their agreement to marry, said party of the first part agrees and binds himself to' not control or claim any of her property, real estate, money or personal property, during her life or after her death. The said Emily Smith to control and buy, sell or loan the same as if no marriage had taken place. And the said G. W. Evans also agrees, to sign any papers necessary for the said Emily Smith to transact her business. That if said marriage shall take effect, the said Emily Smith have full control of her property the same as a single woman henceforth and forever.
“Emily Smith,
“George W. Evans.”
After executing the contract, the parties were thereafter married, in Green county, and continued to live together in said county until about M'ay 29, 1905, when Emily Evans, formerly Emily Smith, died intestate. On January 2, 1905, George W. Evans made an application to the probate court of Greene county for letters of administration on the estate of his deceased wife. The application is as follows (omitting caption) :
“George W. Evans, being duly sworn, upon his oath says that Emily Evans, late of Greene county, died at Springfield, in said county, on or about the twenty-ninth day of May, 1905, intestate, and the following are the names and places of residence of the heirs of the de
“That he will make a perfect inventory of and faithfully administer all the estate of the deceased and pay the debts as far as the assets will extend and the law direct and account for and pay all assets which shall come to his possession or knowledge.
“George W. Evans.
“Subscribed and sworn to before me this second day of June, 1905. “Lottie Dalrvmple,
“Probate Clerk.”
Theodore Crandall, a brother and the only heir at law of Emily Evans, appeared and opposed the granting of letters to George Evans and filed the antenuptial contract with the court. The probate court refused to grant letters to Evans and thereafter granted letters to H. B. McDaniel. Evans appealed, from the order refusing to grant him letters, to the circuit court, where on a hearing anew the circuit court held that by the antenuptial agreement, Evans had waived his statutory right to administer and denied his application and affirmed the judgment of the probate court. After unavailing motion for new trial, Evans appealed to this court.
After hearing the evidence, the circuit court made the following finding of facts, which it is admitted is true and correct, to-wit:
“It is admitted that G. W. Evans and Emily Evans, the deceased, were husband and wife at the time of her death, and that he applied for letters of administration on her estate, and same wTas overruled, and that H. B. McDaniel was appointed administrator.
“Defendant offered in evidence the antenuptial contract between George W. Evans and Emily Smith, which
“It is further admitted by the parties hereto that said parties were able to contract at the time of making said antenuptial agreement and that Emily Smith had then reached such an age as to render issue impossible, and that they afterwards married with said contract in existence.
“Said George W. Evans, by his attorney, thereupon offered to prove that after said marriage said Evans was attending to her business as her agent, loaning her money and transacting all her business matters in reference toiler property, both before and after their marriage as her agent.
“Defendant objected to the foregoing offer of proof because irrelevant and incompetent, which objections were by the court sustained, to which ruling the plaintiff then and there duly excepted at the time.
“It is also admitted that during the pendency of the trial in the probate court this antenuptial contract was exhibited to the court and was afterwards left with him and returned by him with the papers in this case to-this court, and bears his filing mark of the same date that the appeal ivas granted.
“That plaintiff asked the court to declare the law7 to be that plaintiff was under the evidence entitled to be appointed administrator of the estate of Emily Evans, deceased, and the court refused the same, to which ruling-plaintiff then and there excepted.”