Hafner v. MillerHafner v. Miller
- Reporters:
- , ,
- Before:
- Davis, Railey, Higbee (per curiam)
2. ELECTION: Renunciation of Will: Antenuptial Contract: Common-law Marriage: Substantial Evidence. The childless testatrix by her will gave her husband one-third of her cash and securities. After her death the husband renounced the will in due time and elected to take one-half of her estate, some of which was real estate. Testatrix‘s sister and father sought to bar his right to make such election by pleading an antenuptial oral contract, made on
3. ——: Antenuptial Contract: Proof. The evidence to prove that the childless testatrix and her husband on the day of and before their ceremonial marriage entered into an oral agreement by which he agreed to take, in lieu of all other interests in her estate, one-third of her cash and securities, must be strong, clear, cogent and convincing and of such a character as to leave no reasonable doubt in the mind of the chancellor that the contract was made, and made substantially in the terms stated, and was based upon an adequate and legal consideration; otherwise, it cannot be excepted from the operation of the Statute of Frauds requiring it to be in writing. Testimony that testatrix said to respondent just before a license was obtained “if I marry you will you be satisfied with one-third of my cash and securities” and that he replied “yes,” and that after the will was written she said to him that “I thought the cash would suit you better than any one else, so I made you one-third cash and securities” and that he replied, “I am satisfied with whatever you do,” being only such language as ordinarily might be used by one contemplating the making of a will, and in discussing with a beneficiary the disposition made of property, was not sufficient to establish an antenuptial contract on the part of respondent to have a ceremonial marriage performed, nor was there such a contract as prevented him from renouncing the will and electing to take one-half of her estate under the statute.
Appeal from St. Louis City Circuit Court.—Hon. Franklin Ferriss, Judge.
Albert C. Davis and Lew R. Thomason for appellants.
(1) Marriage is a civil contract by which a man and woman reciprocally engaged to live with each other during their joint lives, and to discharge the duties towards each other imposed by law on the relation of husband and wife. It does not mean a temporary agreement to dwell together for a time for the gratification of sexual desires, but it is essential that the contract be entered into with a view of its continuance through life. Banks v. Gailbreath, 149 Mo. 529. The presumption of a common-law marriage from the contract of the parties is a rebuttable presumption, and an instruction which ignores a written contract in which they both hold themselves out as unmarried, making the presumption conclusive, is erroneous. Passgile v. Wood, 63 Mo. 513; Adair v. Mitte, 156 Mo. 499. To establish a valid common-law marriage there must be not only reputation and cohabitation as a sequence thereof, but a present contract through words by which the man agrees to take the woman as his wife and the woman agrees to take the man as her husband. Tooper v. Percy, 197 Mo. 532; Bishop v. Brittain Inv. Co., 229 Mo. 700. The presumption of a common-law marriage is overcome when it is established that the relation was in its inception illicit. Imboden v. Trust Co., 111 Mo. App. 235; Williams v. Williams, 46 Wis. 464; Reading First Ins. Co.‘s Appeal, 113 Pa. St. 104; Hesseltin v. McLaughlin, 4 Wash. 570; Klippel v. Klippel, 41 Col. 40. While a subsequent ceremonial marriage is not inconsistent with a prior common-law marriage, still the solemnization of a marriage ceremony is strong admission against the alleged prior marriage. Commonwealth v. Stump, 53 Pa. St. 132; Imboden v. Trust Co., 111 Mo. App. 234; Bishop v. Brittain Inv. Co., 229 Mo. 731. (2) No particular form of words is required to constitute an antenuptial agree
James F. Conran for respondent.
(1) Respondent, being the widower of testatrix, under the laws had a right to elect to take statutory dower in her estate, she having died without any child or other descendant in being capable of inheriting, and the wife, by her will, could not preclude him from such dower.
RAILEY, C.—The two causes above mentioned were by mutual consent consolidated in the Circuit Court of the City of St. Louis, and tried as one case; and occupy the same position in this court. The first of these two cases was brought by Mary A. Hafner to quiet title to certain real estate located in the city of St. Louis, and said George D. Miller was made defendant therein. This suit was brought for the February term, 1921, of said circuit court. At the April term, 1921, said George D. Miller, as plaintiff, brought, in said circuit court, against said Mary A. Hafner et al., as defendants, the second above case, which had for its purpose the partition of the same real estate described in the first case supra.
Frances Fitzgibbons Miller was the fee-simple owner of said real estate, and was the common source of title. She died on September 18, 1920, in the city of St. Louis aforesaid. Her will was duly probated in said city and, by the terms of same, she bequeathed to her husband, George D. Miller, one-third of her cash and securities. She gave to one nephew and two nieces, each five dollars, and divided the remainder of the personal property equally between Mary A. Hafner, her sister, and George W. Hardesty, her father. The real estate in controversy was devised to appellant Mary A. Hafner, on condition that she care for her father, George W. Hardesty, during his life. The testatrix left no child or other descendant in being capable of inheriting.
To preclude respondent Miller from electing to take statutory dower, appellants plead an alleged antenuptial contract, between said George D. Miller and testatrix, as follows:
“That said bequest to said George D. Miller, in her last will and testament as aforesaid, was made under and by virtue of an antenuptial contract entered into between said Frances Fitzgibbons Miller and the said George D. Miller prior to the marriage between them, and in consideration of said Frances Fitzgibbons Miller marrying the said defendant George D. Miller, he, the defendant George D. Miller, agreed to take as his interest in the estate of his wife to be one-third of the cash and securities of which she might be seized.”
The appellants allege performance on the part of Frances Fitzgibbons Miller, as follows:
“That the said Frances Fitzgibbons Miller when on her death bed carried out all the terms and agreements as aforesaid which she made with the said defendant George D. Miller, and thereafter, on the 14th day of September, 1920, married him, and by her last will and testament, made on the same day, bequeathed the said defendant George D. Miller the amount of cash and securities agreed upon between the defendant George D. Miller and said Frances Fitzgibbons Miller prior to the marriage aforesaid, and prior to the execution aforesaid.”
The respondent denies in toto the existence of any such antenuptial contract between his wife and himself.
To prove the alleged antenuptial contract, the respondents offered Mary A. Hafner, the chief beneficiary, who testified as follows: That on Saturday, September 11, she heard Mrs. Fitzgibbons say to Mr. Miller: “If we get married will you be satisfied with one-third of my cash and securities?” and Mr. Miller said, “Yes;” that on September 14, Mrs. Miller sent her and Mr. Miller for a marriage license and for Cooper to write a will; that after Miss Cooper had taken the notes for the will Mr. Miller asked Miss Cooper, how it was written up, and she explained it to him, and Mrs. Miller said: “George I thought the cash would suit you better than anyone else, so I made you one-third cash and securities,” and he said, “I am satisfied with whatever you do.”
On cross-examination, Mrs. Hafner said she overheard the first conversation from an adjoining room, where Mrs. Miller was lying on the bed and Miller sitting thereon, where they could not see her, and no one else was present. She said that the first she learned of any intention of marriage between Mr. and Mrs. Miller was when Mrs. Miller asked her to go for a license September 14th; that she knew Mrs. Miller had never said that she would marry Miller.
Beneficiary George W. Hardesty testified that at some time, he didn‘t know when, probably ten days be
On this evidence the appellants hang their contract. The Statute of Frauds was interposed as a defense, and objection made to oral evidence to prove any contract in consideration of marriage, or any oral contract, and objection was made to any evidence to prove any contract in consideration of marriage, not in writing and signed as required by the statute. The court received this evidence over respondent‘s objection, subject to a later ruling, and at the close of the evidence ruled in favor of its admission, to which ruling respondent duly excepted.
Respondent then, having denied the existence of this alleged antenuptial contract, introduced evidence to prove a common-law marriage between himself and Frances Fitzgibbons, as having existed since 1910, when he and she went to live together as man and wife on Cote Brilliante Avenue; that they had lived together as man and wife ever since that date even to the time of the death of Frances Fitzgibbons Miller; that they had introduced each other as man and wife; had occupied the same home during all said time, and the same room and bed; that they were received into his family as man and wife, and his nephew called her “Aunt Fanny;” that she so signed herself when sending presents to his nephew and niece; that each took out one or more insurance policies in favor of the other, respondent designating her as his wife, and she designating him as her husband, as early as 1912 and 1913; that they had lived most of this time in the lower part of the city, where Mrs. Miller kept roomers a part of the time; that respondent worked all the time, either in delivering ice or in delivering papers; that the ceremonial marriage was the wish of Mrs. Miller to be married as other people were.
Appellants, being father and sister of the deceased, sought to wring from respondent‘s witnesses an admis
Respondent‘s sister and the many friends of both George D. Miller and Frances Fitzgibbons Miller bore testimony to the marital relation of the couple; to the high esteem in which they were held, and of their good reputation.
Even appellants did not deny that Frances Fitzgibbons Miller was a good woman.
The court, having decided in favor of appellants, later upon reading the evidence, was convinced that it had committed error, and that the legal evidence would not sustain the findings. Accordingly, a new trial was granted respondent in both cases, on the ground that the finding was against the evidence.
I. In the case brought by Mary A. Hafner, et al. v. George D. Miller, under
In view of the foregoing, it was the province of the trial court to pass upon the weight of the evidence adduced at the trial, and if an erroneous or improper conclusion was reached by the court in passing upon the facts, it had the legal right to correct the error thus made, and grant a new trial to the party against whom such error had been committed. [Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226; State ex rel. v. Ellison, 268 Mo. l. c. 231 and following.] Unless we can hold as a matter of law, that plaintiff was entitled to recover on the facts disclosed in the record, the trial court committed no error in granting a new trial on the ground, that the conclusion reached by it was contrary to the weight of the evidence.
II. After reading and considering all the evidence, we are of the opinion, that respondent produced at the trial substantial evidence tending to show a common-law marriage between himself and testatrix, Frances Fitzgibbons Miller. [State v. Cooper, 103 Mo. l. c. 270; State v. Harris, 283 Mo. l. c. 109, 222 S. W. l. c. 422; McIntyre v. Frisco Ry. Co., 286 Mo. l. c. 246-7-8, 227 S. W. l. c. 1050.]
One of the clearest statements of the law on this subject will be found in State v. Cooper, supra, where Thomas, J., speaking for this court, said:
“The fact that a man and woman live together for a long time publicly, pass and introduce each other and cohabit as husband and wife and say they are married, is evidence tending to prove a marriage, and may even raise a presumption that the parties were in fact married, but this presumption is one of fact and not of law. It is the province of the jury and not the court to determine what probative force these facts have in a given case.”
The fact that respondent and his wife had been engaged in the disreputable business of conducting a baw
If, on a re-trial of the case the court should find that a valid common-law marriage had taken place between the testatrix and respondent, before the date of the alleged second marriage, then respondent was entitled, under the law, to disclaim any interest under the will and take one-half of testatrix‘s estate, as provided in
It is manifest from reading the above authorities, that if respondent and testatrix had, under the common law, become husband and wife, his inchoate dower interest could not thereafter be taken from him, except by a voluntary contract—based upon a valid consideration—which could be enforced in court.
III. Was the trial court justified in granting respondent a new trial on the ground that the finding of the court was against the weight of the evidence in respect to the alleged antenuptial contract pleaded and relied on by appellants? If the evidence of appellants offered in support of their contention that a valid antenuptial contract was made as alleged, be held insufficient to establish the same, it is plain that they have no standing in court, as respondent was undoubtedly married to testatrix, and elected in a proper manner to take one-half of his wife‘s property, subject to the payment of her debts, in lieu of that which she gave him in the will.
The other testimony relied on by appellants to prove said contract was that given by appellant, Hardesty, who is directly interested in the result of this litigation, and who also claims to have overheard, while in the adjoining room, a conversation between respondent and testatrix, in which the latter said: “George, if I marry you and give you one-third of my cash and securities will you be satisfied?” and Miller said, “Yes.”
It is obvious from the most casual reading of the record that respondent was not soliciting testatrix to have a ceremonial marriage performed. On the contrary, it was performed to gratify testatrix, who was then very sick and died a few days thereafter. The above language is just what ordinarily might take place where the owner of property contemplated making a will, and discussed, with the prospective beneficiary, the disposition which she anticipated making of her property in the will. We are of the opinion that the above conversations, aside from the Statute of Frauds, constituted no
In Burt v. McKibbin, 188 S. W. l. c. 191, we said:
“The proof of the making of the alleged contract must be ‘so strong, cogent, and convincing as to remove and exclude every doubt that the decedent made the contract.’ [Steele v. Steele, 161 Mo. l. c. 575, 61 S. W. 817.] In Wales v. Holden, 209 Mo. 552, 108 S. W. 89, it was said that the proof must be ‘overwhelming.’ [See, also, Oliver v. Johnson, 238 Mo. 359, 142 S. W. 274, and Walker v. Bohannan, 243 Mo. 136.]”
“Not only must the proof show beyond a reasonable doubt that a contract was made, but it must appear from such proof that the terms of the contract were ‘clear, definite, and unequivocal.’ [Rogers v. Wolfe, 104 Mo. 1, 14 S. W. 805.] It is there said: ‘If the terms are uncertain or ambiguous, or not made out by satisfactory proofs, a specific performance will not (as indeed upon principle it should not) be decreed.‘”
The law in relation to this matter has been very clearly and forcefully stated by Graves, J., in the well considered case of Walker v. Bohannan, 243 Mo. l. c. 135 and following, where it is said:
“The enforcement of contracts of the character here involved is an exception which courts of equity have engrafted upon the Statute of Frauds. The exception is one that is sparingly exercised, and rightfully so. Title to real estate should not slumber in oral contracts to convey.”
“The very conscience of the court must be touched by the facts of the particular case before the exception of the statute will be called into play. The Statute of Frauds had its origin in the dangers which developed in permitting the title to real estate and contracts as to other weighty matters to rest in parol. Court weighing evidence by the usual rules were constantly enforcing
contracts, which were thought to have been proven by false and perjured testimony. The statutes were not only a boon to property interests, but to the courts as well. Not only so, but it removed from society the temptation to acquire property and property rights through fraud and perjury.” “With the acquired experience the courts had gained before the passage of the original Statutes of Frauds and perjuries, they were slow to engraft thereon any exception to the iron-clad rule of the statute. Later, however, it became apparent to courts of conscience that frauds were being perpetrated under the strict letter of the statute.”
“To obviate these frauds the exceptions to the statute here invoked was adopted by courts of equity, but not without well defined rules of procedure—rules, which like the statute itself, would be a safeguard as against the perpetration of frauds.”
“The rules cover many phases; i. e.: (1) The alleged oral contract must be clear, explicit and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged, was in fact made and that the full performance, so far as lies in the hands of the parties to perform, has been had; (6) the work constituting performance must be such as is referable solely to the contract sought to be enforced, and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand but not upon the other would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; and (8) proof of mere disposition to devise by will or convey
by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed, made before the acts of performance relied upon were had.” “There may be other phases of the rule adhered to by the courts in cases of this character, but the foregoing are clearly within a long line of Missouri cases. The more recent ones are: Forrister v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Kirk v. Middlebrook, 201 Mo. 245. Other cases of like tenor are found cited and discussed in the foregoing. Suffice it to say that they all indicate that the courts are slow to enforce contracts of the character we have here.”
“It is only where the very justice of the thing is so clear, that the refusal of relief would itself amount to a deep seated wrong and fraud upon the party, that courts of equity will act, and as said before, this is right. The fickleness of land titles should be averted. The wholesale enforcement of such contracts would bring more absolute wrongs than the absolute denial of relief in all such cases. It should therefore be with discerning eye and ear that the chancellor appealed to should proceed. The single purpose should be the prevention of a real fraud, rather than an imaginary one. His decree should protect substance, rather than shadow, and the evidence to support his decree should point to a real and actual fraud as the outgrowth of a failure to enforce a clear, certain, reasonable and specific contract. By this we mean a contract between the parties, not a contract made for parties by loose declarations gathered together after death has sealed the lips.”
“Measured by these rules the plaintiffs’ case must fail, as we shall undertake to show.”
The respondent is relying upon the fact that he was the husband of testatrix and elected to take that which the law gave him at her death. The appellants are relying upon an alleged contract, which was never reduced
The trial court was right in granting respondent a new trial in both the above cases. We accordingly remand the same for further proceedings. Higbee, C., concurs.
PER CURIAM: The foregoing opinion of RAILEY, C., is adopted as the opinion of the court. All of the judges concur.