*1
457
Bespondent,
For the reasons stated, heretofore under first count of the remanded, should reversed and and the judgment under the second count be reversed outright. should It is so All ordered. concur.
Virginiа McGonigle B. Appellant, v. S. Jones, David Leona
M. Hill, Will Executors of Last F. Jones; Ben Board of Park College, College, Manter, Trustees Park Clara Maggie James L. Mayer, Jones, Jones, Thelma Charles Cava Hill Tetley, Hill Arline naugh, McGhee, Clara Un Emma Marshall. known Heirs Mattie Green (2d) S. 892. W. One,
Division March 1931.* filed; rehearing mo January 5, Motion Opinion 1931: filed *NOTE: 31, 1931. tion overruled'March *3 Bruce Barnett appellant. and Josiah Barnett for Graves <& Ltocas, Landon Johnson, College; Park for c&Orr Griffin executors. M. Smith Dioight
46Í FERGUSON, C.—This and annul is a suit to set aside agreement antenuptial whereby plaintiff, appellant here, a- greed accept certain “in real estate lieu of dower or other legatees marital interest All real estate.” and devisees Jones, deceased, the will of Ben F. and all the heirs at law Jones, the said Ben F. deceased, are defendants.
Defendants filed demurrers to the first amended . plead were sustained. Plaintiff declined to further, defendants, was entered for from which appeals. peti- alleges tion lawfully and Ben F. Jones were married August 1923; on the said Ben F. Jones in Jackson died County, Missouri, on day 1925; pur- 9th of December, that a ported will of Ben Jonеs, deceased, day Sep- F. dated the 17th tember, 1925, presented Coun- Probate Court of Jackson ty day on December, the 12th and was found and declared by said court deceased; the last will of Jones, the said Ben F. purported will, bequeathed said $1,000 decedent the sum of defendants, each of the Clara L. Manter, Maggie James Jones and Jones certain personal enumerated items of property to de- Mayer, fendant Thelma and that it is purported stated in said will that “said Virginia decedent wills and devisеs property no B. Jones, plaintiff, this will containing said prior the statement entering marriage Virginia into a relation with said Jones, B. plaintiff, prenuptial contract was entered into and a said settlement was made between testator plaintiff;” and this College residuary the defendant Park was made legatee devisee!and *5 will; purported Jones, in Ben F. deceased, said that has no lineal parties heirs at law descendants and all his are defendants; died, of Ben F. Jones seized real that estate situatе in Jackson which is described. County, Missouri Continuing, states: plaintiff August 22, this on was lawfully “That married Jones; prior on and day Ben F. that to said said and to continuously ' C3co he was owner up his death
thereafter since of and to the time at all of and absolutely all above described the real estate $50,000; on the said times value in the same was of a excess and celebration day marriage the hour said and before signed an F. Jones Ben plaintiff thereof and solemnization this said in substance that said writing whereby in was instrument recited in convey plaintiff a certain interest Ben this F. Jones should to Street, 21st numbered Bast known as and certain real estate Missouri, County, to-wit: a remainder City, in Kansas in Jackson said Jones, to-say, Ben F. that is after of said therein the death remainder, estate, which himself a life Ben F. Jones reserved unto writing subject $1,000, by paper terms of said mortgage to any other plaintiff in lieu of dower or accepted this was be Jones; F. all real said Ben that thereafter marital interest in estate of conveying signed and/acknowledged F. Jones Ben a deed was said subject interest, life estate, with such reservation of such real mortgage, plaintiff. to this a house was a lot of with “That said so conveyed by' value; small the interest rooms, of five small jointure $1,500, and such settlement and deed said did exceed ex- grossly inadequate; value thereof did not was and dower,- plaintiff’s which fact one-tenth of of this ceed the value Jones, F. said Ben plaintiff, was well not known to known Ben F. Jones entered said and said settlement was not into good thereof wаs faith, consideration therefor and and the consideration, no grossly inadequate because as amount so said inadequacy consideration settle- insufficiency and of such F. Jones. part of said 'Ben fraudulent ment is void knowledge of said as the value plaintiff “That noi had real estate. Hill Hill Arline McGhee and 11, 1926, Clara “That December alleging herein, an action this instituted Tetley, defendants Probate writing purporting to be and declared paper that the Ben last will of said County, Missouri, Jackson to be Court оf will, is not fact last deceased, was and Jones, F. against plaintiffs therein, but rendered judgment was action appealed said have judgment plaintiffs therein said accordingly Supreme Court, and pending in Missouri now cause is legatees, all of the joins defendants herein this will, and also all of the if same is a will, under said devisees F. Jones, deceased. Ben said law'of heirs at writing instrument of prays that said “Wherefore, Jones, deceased, day F. Ben said by her signed pretended said aforesaid, and the marriage as their court, and decree of this by order, be, settlement marital same'be held and declared to naught aside set *6 null void, and and same plaintiff that this to have the be declared interest all of she should the real estate above described which signed by aforesaid, have if the said instrument her as had not been plaintiff prays judgments and this orders, for all other and decrees equitable premises which in she for all is entitled in the and relief.” College
Defendants, separate Park executors, and filed the grounds identicаl petition, assigning demurrers to the six therefor. grounds The first four demurrers, jurisdiction per- of the viz.: of the demurring jurisdiction son of defendants, subject-matter, the of legal capacity plaintiff of parties to sue and defect defendants urged grounds seem to have been and abandoned are not here as for sustaining demurrers, appear the nor does it that the demurrers properly could grounds have been sustained on said or either of Only grounds them. fifth and pre- the sixth of the demurrers are ground assigned sented for our consideration. The fifth is that the plaintiff accepted shows its face that the benefits ac- cruing antenuptial to her under contract and that she there- estopped deny validity fore contest thereof. The sixth writing is that shows on its face that “the purporting to be the will of Ben Jones, deceased, last said F. probate by judgment
admitted to and declared to be order and day of Jackson County, Missouri, the Probate Court of on 12th December, 1925, plaintiff’s said suit was filed this year April 21, 1927, court on more than one after said will had expiration one-year probate, been admitted to and after the contesting period will had allowed the statutes of this State for expired; jurisdic- fact, and this court reason of such is without plaintiff’s tion suit.” during regular May Term, day May, 1927,
On the 24th County, Circuit Jackson the court made and Court of following day “Now on this entered record order: McGonigle David S. and Leona separate demurrers of defendants College College, Park Board Trustees Park Hill and are court plaintiff’s petition, amended sus- corporation, to -ruling plaintiff separately of the court action tained, to which given days court plaintiff is ten Now date excepts. August Thereafter, 4, 1927, and on at plead herein.” term, following entered the court order during same having heretofore court sustained “The the de- judgment: plaintiff plaintiff’s declines demurrers fendant’s adjudged nothing it is take Wherefore, further.
plead go day, defendants hence without and that herein writ expended.” their costs herein recover defendants plaintiff appeals. on dеmurrers, final From Respondents have filed in tbis court a motion ap- to dismiss the peal, the substance of which is appellant acquiesced in the ruling of the trial sustaining the demurrers and waived the right appeal-“by taking days plead.” ten time to *7 following may be said to be well settled applicable rules to antenuptial contracts: that the existing relation between a man and the woman engaged whom he is marry to is a one in confidential “an stringent exact and (Donaldson sense” 228); v. 249 Donaldson, Mo. good faith is thе cardinal principle in transactions, making it upon incumbent the prospective fully husband to pros inform his pective wife, respect with to the (30 nature and extent of his estate 643) C. ; J. that such contract clearly by must be understood just wife, be and reasonable and free from concealment. toAs just whether is contract reasonable, equity will courts take into consideration the adequacy provision for the wife. J.C. [30 Ordinarily, inadequacy 642.] presumption raises a fraud and concealment, throwing burden prоving the absence of fraud and concealment upon claiming the husband or those under him (30 C. 644), J. and the attending contract and all circumstances its excution will “regarded be with rigid scrutiny” by the most courts of equity. v. Lackland, 442; Egger [Carr Mo. l. c. Egger, 116; Mo. 13 R. C. L. appears this case 1374.] to be based foregoing alleged principles, is it pursuant settlement made antenuptial agreement to the “was grossly inadequate; is the value thereof not did exceed part” one-tenth plaintiff’s of what been; dower interest would have thаt such fact was unknown to plaintiff, well known to the said Jones; Ben F. the said Jones did good not act faith “that' knowledge had no as to the value of of said real estate.” Defendants do ground demur on the does not state facts to sufficient constitute a action, cause of and it ap- pears that, upon the facts stated in petition, plaintiff may proper- ly appeal to a court of equity, as done, has annul she to and set antenuptial aside the “pretended jointure” contract and the made pursuant adjust equities thereto to determine and parties. The argument sole support made in fifth the demurrer is that plaintiff not, by does her tender back or to offer restore to the estate of the deceased real estate con- veyed way the deed her husband pursuant agreement prenuptial and that she cannot therefore suit; and, connection, respondent maintain invokes equity equity. maxim that one who seeks must do Where acts to performed by to a parties be contract are dependent, mutual and right claiming of a dependent or the existence one where part, payment of duties on performance money .the or delivery goods, performance by necessary tender of bim to right. dealing maintain a suit to here But, enforce tbe we are not with a case wherein a or offer money, property, tender a deed convey maintaining to real prerequisite estate must be made as convey purchase as on a suit contract reаl estate for a money fixed or consideration, or a suit to set aside and irregular annul a or sale, specific fraudulent foreclosure or the performance convey of a seeking contract real estate. Plaintiff is not conveyed to retain the real her, contrary estate but to the she antenuptial asks '“pretended jointure that both the contract and the thereunder, by marital settlement” made which said real estate conveyed her, annulled, naught held,” “set aside and for in whiсh pass event the real estate so to her would with and as real other estate of her husband died seized. She thereby submits her claim to a court of offers to abide subject the action of any equitable that court and be conditions imposed required by the court in its decree. *8 equity
In v. Shuee, brought Shuee in Ind. a widow suit family to by set aside a which accepted payment settlement she had of by a sum much less full to, than she was law in of her entitled share her estate. The bill submit deceased husband’s offered to plaintiff to such terms as decree, the court would but did not offer to any part money return all or of the she had received. The court said: always is power equity,
“It within the of a court of where its require invoked, price decree,’ decree is to as ‘the its the person invoking accordingly equitable terms, it shall to submit inquires equities a always concerning chancellor plain- the the do, tiff must in order that he be entitled the relief which to he seeks.” equity— principle
We do not think that the enforcement of the
equity
any
equity
dependent upon
that he who seeks
must do
—is
pleading,
application
form,
manner or form of
its
is in
true
provisions
conditions and
court
the orders and decrees of the
whereby equitable
imposed
precedent
terms are
as a condition
to the
equitable
granted.
Reilly,
21 At «<£> equity asking aid requires “The maxim any person equitable party, . all compelled will accord, be the other subject-matter.
rights respect to which the is other entitled party will equities Relief adverse inconsistent with rights equitable denied, granting and where the relief raises rights imposed will be according favor of defendant, granting as a condition of relief.” foregoing court application is rules made what
equity dependent not its decree and orders do, his bill but when offers or equity to and offers comes into a and submits cause will to do seek court, abide the decree of that a court of adjust complete justice equities of all the and determine and parties. say not tender
Respondents appellant, in her did pursuant husband real to her deed to the estate antenuptial agreement or to the executors either into court doing residuary allege legatee, or reason or excuse for not suggestion should respondents as to who But, so. do aid us grantee have in such a deed. The states been Jones, made defendant heirs at law of the deceased that certain contesting prosecuting then an action therein, had instituted and were tendering apparent into validity of will. It - conveying any of in blank or court of a deed executed either unneces- defendant, vain, would have been a useless and parties antenuptial con- sary appellant seeks to have the procedure. The held, naught “set aside and for pursuant thereto tract and equitable void” re- null and and invokes that same be declared whole matter and all the and tendered the lief, which submitted *9 equity for its determination and ad- involved to a court of equities the have been sustained on judication. should not The demurrers ground fifth thereof. the appears upon is thаt it ground of the demurrer sixth against which demurrers are these the first amended
face of filed more petition in the cause was than original directed, that the alleged purported will of the de- the the date it is year after one expiration of probate “and after the Jones, was admitted ceased, by the statutes of this state for con- one-year allowed period the testing a will.” will, a a but suit to contest not an action is This jointure antenuptial and the contract an -set aside annul by 525, limited or restricted Section is not
bringing suit of such relating time within which to the a contest 1919, Statutes Revised ground support In of this demurrer, may be instituted. will a specific therein, out averment set the not discuss do respondents holding party cases that a cannot numerous and discuss cite but <1,
O* reject ap- accept rule both and that same instrument authority, plies to deeds, wills and line of all other instruments. That however, applicable is not from face here, appear it does not property seeks to hold and retain the conveyed pursuant antenuptial rather agreement, seeks setting in a equity annulling decree court of aside ante- nuptial agreement thereby that she thereunder rights be enabled to claim In fur- her marital under the statutes. though support demurrer, ther of the sixth not keeping respondents say: specific thereof, with the averment ‘ ‘. . . inasmuch property appellant as the as antenuptial consideration for the contract was intended to be in discharge full claim of her dower and since the deеd took effect husband, expressly at the time of the death of her and his will states by property settlement, reason of such no was other duty will, appellant, left to her in his if she became accept provision not satisfied to made for her under the antenuptial contract, terms said to file a formal renunciation of ' required contract, by said will and of said the statutes.” Section 328, Revised Statutes reads: any by
“If shall, will, pass any testator wife, real estate to his such devise shall be in lieu of out dower of the real estate of her husband seized, whereof he died or in which at he had interest death, the time of his testator, will, unless the otherwise ’’ „ declared. And, part 329, Section Revised Statutes respondent evidently alludes reads:
“In such case wife shall not be endowed in real estate whereof her husband died seized or in which an in- he had duly shall, by writing terest at the time his death unless she acknowledged executed and as in cases land, of deeds for and filed probated the office of the in which will and recorded proоf within twelve months after will, accept not provisions made for will.” said
But, appear it does not the references to the will made in the passed any the testator the will real estate to his wife, appellant herein, and therefore the renunciation under required. antenuptial 329 is not Section contract was will, but deed. We respondents executed find no statute and requiring antenuptial none formal renunciation of an cite contract only petition. provision statutory forth -The such as set jointure is Section relating renunciation of Revised Statutes *10 follows: 1919, which is as conveyance, assurance, agreement jointure of any
“If deed marriage marriage, or be made during and be before after 468 election,
infancy wife, may, in at her widow either case the of renounce her jointure, and have dower.” Clearly apply this section does the contract alleged support petition. Further, in the to be in purporting ground respondents of the demurrer, sixth contend that required part apрellant election and renunciation of was on the though will, “within probating twelve months after the as property by will, she specifically had been devised to rights.” knew full of as in her dower This departure specific contention seems also to be a aver ground ment in the sixth effect, of the demurrers. In it raises question limiting of laches attempts apply statutes certain brought which may rights time in suit be become fixed after or probate applicable the will. Laches “is doctrine peculiarly a equity. suits independent which, It is of statutes of limitation provided unless legal only. Lapse otherwise law, apply to actions entering is one laches, time of the elements into' the doctrine determining surrounding no means a sole element. All the along facts and circumstances lapse must be considered with the [Virginia Milling Smelting Clay time.” C. & v. Mining, Co. (Mo. ton 233 Sup.), 215; 181; 67 Prichard, S. W. Bliss v. Mo. Kline v. 90 Vogel, alleged delay Mo. appellant’s Whether 239.] in asserting her claim amounts to laches must be determined delay facts of the case. Mere alone doеs not constitute laches. It delay disadvantage prejudice must works to the defendants and the injured thereby. defendants must have been v. 297 246 Keiser, 897; W. Mo. S. Antry, [Davies Johnson v. (2d) 405; 5 S. W. Lindell Real Estate v. 142 Lindell, 43 Mo. appear upon S. W. It does not petition the face of the 368.] put any disadvantage have prejudiced, defendants been or caused change position to suffer loss or delay instituting against charged plaintiff. While clearly appearing upon suit laches advantage petition be taken the face of the demurrer yet 181), guilty Mo. whether (Bliss Prichard, party v. a has been peculiarly question of fact which can a be better deter laches from all the facts merits upon the circumstances in the mined ought not to be sustained demurrer case clearly demanded. Stark, unless S. W. [Guels not have been should sustained on the sixth The demurrer 693.] ground thereof. appeal to dismiss the motion herein re- respondents’
Upon to a a demurrer is sustained, when assert spondents on his to stand let elect either must acquiesce ruling in him the court appeal, go against plead; that since the record in this request time sustaining demurrer, given time was shows case
469 plead, presumed which to it must that plaintiff counsel for asked plead for thereby acquiesced time to ruling the court the sustaining right the demurrers and waived the 3 Corpus In appeal. to Juris, 667, general the rules are stated as follows:
“The mere court, fact that the on sustaining demurrer, a any request without therefor, grants leave to amend does not bar against an if appeal, party the whоm the- demurrer is sustained does not leave, act on such but elects to stand on his In pleading. some applied cases party requests the same rule is even where the amend, thereon, finally obtains to if he does not leave act but elects authority weight appeal; pleading to stand on his but the party, by obtaining a amend, though thus even such leave leave to right judgment, upon, appeal is not from acted waives the to a sustaining procuring demurrer, party, unless the after order request allowing him his leave, an order to withdraw obtains may appeal in which case he pleading, his therefor and to stand on as if had been obtained.” no leave to amend judg- final in full the orders and set out
"We have hereinbefore order, By the first the demurrers. court the ment enter a demurrers, time but did not at that court sustained the plaintiff “Now concludes: judgment That order final thereon. order does days plead.” which given to ten court her or asked to amend requested leave plaintiff recite assumed it well be reading as the order from a petition and amend, granted which to time in own court its motion do, so, assume, respondents as to as plaintiff elected to do if the pursuant to was made amend granting which to time in the order an order fact from the assume request plaintiff. If we do was entered plead further granting opportunity to appellant an look to then request we must pursuant appellant’s was it made final order judgment court. final order and court, though some term at the same judgment was entered in which to plaintiff allowed expiration of time time after sustained having heretofore court “The plead. order recites: This declines plaintiff petition, plaintiff’s .demurrer defendants’ against plaintiff. judgment with further,” concludes plead 667, we Juris, Corpus 3 cited foregoing rules If we follow allowing plaintiff withdraw construed must be order think this any request leave to amend theretofore petition. on the to stand sus- was made record an order Bond, Mo. Spears In judgment on no final but petition, taining demurrer “upon trial court said This entered. demurrer peti- held the should have acted, it seems theory which opportunity plaintiff given law, insufficient tion on stand elected to amend, if declined But, amend. gone, final should from which an then have appeal could have been taken.” question we disposed statute,
But think this Section our 1229, Revised follows: “After a de- Statutes is as course, murrer may amend, and with or without *12 costs, may words course” are defined the court order.” The “of right.” Dictionary Law mean “as a matter of Ballentine’s “Any Dictionary “of course:” Blaсk’s Law thus defines the words judicial proceedings which step action or taken the course of upon application, will be allowed the court mere without effectually inquiry contest, may be taken without even or which ” is said be ‘of course.’ applying leave, court for tó the to a is sustained the when a demurrer Under this statute required being first obtain of court leave plaintiff, without right, opportunity amend as a matter of amend, is entitled to upon its own motion or the court allowed which should be application” plain- plaintiff; and such “mere application of the acquiescence as an in the order construed tiff should not having plaintiff, If thus sustaining the demurrer. the court petition as the statute amend his opportunity to given the been peti- and elects to stand further plead directs, declines against him from which be entered judgment should final tion, then appeal herein is over- dismiss the motion to The appeal. he ruled. remanded. Seddon and cause reversed and the
Ellison, (7(7., concur. by FergusON, C., is a- foregoing opinion PER CURIAM:—The judges All of concur. court. opinion
dopted as the I. M. v. Sloan, Appellant, Press, American Pearl Matthew (2d)W. 884. Levitt. 37 S. Levitt Ida One, 1931. March Division