84 Mo. 332 | Mo. | 1884
This cause was begun In the probate court of Moniteau county in November, 1878, for the allowance of a demand against the estate of Mark Renfrow, de
Estate of Mark Renfrow to Wm. U. Hammons, ' Dr. To money received by Mark Renfrow in trust for William H. Hammons, Charles P. Hammons and Burtie Hammons, loan to W. Renfrow, April 3,1867, at 10 per cent, compound interest..................................$ 960.00
Interest on same to February 19, 1876 ....... 778.00
$1,738.00
CREDITS.
February 19, 1876, by amount paid Wm. H. Hammons and Charles P. Hammons.......$ 536.18
$1,201.82
Interest to December, 1878.................... 363.80
$1,565.62
On a trial in the probate court said account was allowed, in the sum of four hundred and eighty-three dollars, from which defendants appealed to the circuit court, where, upon a trial anew, the plaintiff had an allowance for the sum of $1,300, from which the cause is brought here by writ of error by the defendants.
The material facts appearing in evidence are, in substance, as follows : In 1866, Mark Renfrow, the deceased, married Mrs. Hammons, the mother of the plaintiff. At the date of the marriage Mrs. Hammons was a widow with three children, all boys: Wm. H., the plaintiff,- Chas. E. and Asa Burt Hammons. There were, also, one half brother, and two half sisters, of the Hammons boys, the children of her first husband by a former marriage. Asa Burt Hammons died in the lifetime of his mother, and Charles after her death; both unmarried and- without issue. The half brother, John C. Hammons, also died unmarried and without issue ; the half sisters, Mrs. Graves and Mrs. Rector, are still living. At the
Brizindine, a witness for plaintiff, testified that after Mark Renfrow was married to Mrs. Hammons, plaintiff’s .motker, he desired to borrow some money and went to 'Mr, Renfrow to borrow it; he said he had some money, ■and said he had a note, drawn up for compound interest. “I told him I didn’t want to borrow it and give such a •note ; then he told me the reason why he had the note (drawn that way was because the money he proposed to Joan .belonged to the Hammons heirs, the children of his
The record further shows that Renfrow, in loaning said money, took the notes payable to himself and secured by mortgage in his own name, and that he annually collected the interest thereon. There were two of said notes, one of date April 3, 1867, by J. P. Renfrow for five hundred dollars, at ten per cent., and the other by Thos. Pate, February 18, 1870, for five hundred dollars at ten per cent.
Pate testified, that in 1874 or 1875, after the death-of Mrs. Renfrow and her son, Asa B. Hammons, the plaintiff, William Hammons, and his brother, Charles, went with him to see Renfrow about this money, when he made a payment of interest on said note, and that the following conversation and negotiations, in substance,
Holt testified that he had a conversation with Mark Renfrow, in his lifetime, about borrowing some money, and that Renfrow, after speaking of the sale of his wife’s land in Cooper county and the amount realized therefrom, said that his wife was sick two years and he had to pay her doctor’s bills ; then John Hammons, her stepson, got sick and died, and he had his doctor’s bills and expenses to pay; then Burtie Hammons, her son, got hurt and died, and he had his doctor’s bills and funeral expenses to pay, and so there was very little, if anything left for his part. John Hammons was about a grown man, and cooked for Renfrow the year before he died ; the other boys, William and Charles, stayed with Mr. Renfrow and worked like neighbors’ boys, plowing, etc. There was other testimony, tending to show that the two oldest of the Hammons boys, Charles and William, were old enough to work and earned their living.
James P. Renfrow, a witness, testified: “Mark Renfrow was my uncle; I borrowed five hundred dollars
The witness, Pate, whose testimony in chief is given above, and who is the father-in-law of the plaintiff, on his cross-examination, said: “In the conversation referred to, Renfrow said he should pay the boys the five hundred dollars, if they would give him a clear receipt in full of all demands against him; I think Renfrow transferred my note to the boys on March 8, 1876.” Then it was, as we gather from the evidence, that the Hammons boys, who, as the evidence shows, were then minors, under twenty-one years of age, gave to Renfrow the following receipt, which was read in evidence at the trial:
“Received February 21, 1876, of Mark Renfrow, Sr., the sum of ($536.18) five hundred and thirty-six dollars and eighteen cents, in full of all claims or demands, whatsoever, which we have against him on account of our mother’s property or effects.
“William H. Hammons,
“ Challes E. Hammons.
*{Attest: H. H. Hudson.”
We have thus stated the testimony, at large, in order that we might have the facts of the whole case properly before us. It is here insisted by plaintiff in error, first, that the probate court had no jurisdiction of the cause ; second, that by the law in force at the date of this transaction, the proceeds of the sale of the wife’s land, so soon as they came to the hands of the wife, or those of the husband, became eo instcmbi the absolute property of the husband, and plaintiff has no title thereto or right of action therefor; third, that if it should be held that the husband’s common law marital rights did
The first position of plaintiff in error, we think, under the facts and law of the case, is not well taken. The theory of this objection is that this action is in the-nature of a “ chancery proceeding,” to enforce an alleged trust against said estate, upon the theory that the intestate acquired, held, and invested said property as a trustee for the wife’s said children, etc. Section six of the act establishing the probate court of Moniteau county (Laws of 1849, page 432), if that act is to govern, provides that said court shall have exclusive original jurisdiction, among other things, “to hear and determine all suits and other proceedings, instituted against executors and administrators, upon any demand against the estate of the testator or intestate, subject to appeal in all cases, to the circuit court,” etc. If the seventh section of the fourth article of 1 Wagner’s Statutes, 1872, p. 440, is to-govern, then it is provided thereby that the several county courts shall, when not otherwise provided by law, have
These sections, or either of them, seem ample enough to confer jurisdiction upon the probate court, whatever may be the nature of the demand in this particular, whether equitable or legal. Such, we think, has been the current of adjudications in this state, upon questions of this sort. 47 Mo. 285; 47 Mo. 289; 58 Mo. 593; 59 Mo. 271; 66 Mo. 283; 68 Mo. 282; 69 Mo. 153; 76 Mo. 249. The case at bar is unlike and distinguishable from the case of First Baptist Church v. Robinson, 71 Mo. 326, and that of Butler v. Lawson, 72 Mo. 227. The plain and simple facts of this case do not, in our opinion, Tender them “matters of purely equitable cognizance,” . within the rule laid down in those cases and. governable hy the doctrines there expressed. Those cases, upon inspection, will be found to be' widely different, in their scope and comprehension, from the simple account filed in this case as the basis of plaintiff’s demand, or the •evidence offered in support thereof. This case is, we think, more in the nature of an action at law, for money had and received on the part of the intestate, for the use and benefit of said children, than an action or bill in ehancery, for matters of purely equitable cognizance, such as are contemplated in the 71st and 72d Mo. Repts., supra. 1 Story’s Eq. Jur. (11th Ed.) sec. 60; 24 Wend. 505, 514; 41 N. H. 185, 187, et seq., and cases cited; R. S. 1879, sec. 3839; 2 Perry on Trusts, secs. 492, 843.
As to the second point, it may be conceded that the general doctrine as there stated may be true ; but while this is so, it is not denied but that a husband may, by
In reference to the third point, it is sufficient for the-present, at least, to say that evidence was not wanting tending to show very clearly, that the contemplated gift of the property to the wife’s boys, was, by the acts and conduct of husband and wife in reference thereto, so far consummated, as to vest in them the right and title to-’ the fund, upon attaining their majority. Of this, however, we may have occasion to speak further hereafter.
As to the fourth and last point we deem necessary to-notice, we will defer all discussion in reference thereto to a subsequent part of this opinion.
Returning, however, to the second and third points-made by plaintiff in error, we think a glance at the testimony above set out shows very clearly, if not beyond question: First, that, at the date of the marriage, between Renfrow and wife, she was seized in fee of the-eighty acre farm in Cooper county ; that shortly after the marriage the husband persuaded the wife that it would be better to sell her land and put the proceeds out at interest, than to rent the place till the boys, her children, became of age ; that, at the sale, the husband, without
In view of such testimony, and other evidence of a like character, tending to the same result, we are not prepared to say that the trial court (or if it is to be treated as a chancellor) was not warranted by the evidence in making the finding and rendering the judgment complained of, and we do not feel called upon, on that account, to reverse said judgment so appealed from. We think, therefore, that the second and third points made by plaintiffs in error are not well taken.
As to the fourth point, it is insisted for plaintiff that it is clearly shown by the testimony in the cause, as well as by the acts and conduct of the parties, that the agreement and understanding between the husband and wife in reference to the subject matter of this suit was, that the real estate of the wife should be converted into money and loaned out at interest for the use and benefit of the boys of the wife, to the exclusion of the husband, the half-sisters, and everybody else, until the boys should become twenty-one years of age ; that the two youngest of the boys died in their minority, unmarried, and without issue, and that the plaintiff alone within the contemplation of the parties and their agreement in reference thereto, upon attaining his majority, was entitled to the whole fund, so set apart, for the boys of the wife. The facts were all before the court. The cause was submitted for trial without the intervention of a jury. No instructions or declarations of law were asked or given; nor
It is not shown by the record that the defendant, at any time, or in any manner, either before • or during the progress of the trial, made any objection whatever that there was a defect of parties plaintiff, or otherwise, to said action. The tenor of all our adjudications is to the effect that all objections and exceptions must be seasonably and timely made and saved, otherwise they will be deemed to have been waived. The first time this objection appears on the record is in the motion of defendant for a new trial, and from aught that appears to the contrary said motion was for that reason overruled.
Under the circumstances, we are not prepared to hold that the trial court erred in so ruling, and its judgment is, therefore, affirmed.