King v. King
184 Mo. 99
Mo.
1904
Check Treatment
GANTT, P. J.

This is a partition suit tried in the circuit court of Cooper county, in which the farm of William W. King, deceased, consisting of about two hundred and thirty' acres, is sought to be partitioned among his heirs. •

The appellant, Susan King, is the widow of .said William W. King, and in the judgment and decree in this case the circuit court adjudged and decreed.that the said widow was not entitled to dower in said real estate, but by its decree tl\e court expressly excluded her from sharing in said estate.

*103There was an antenuptial agreement entered into October 21, 1885, between said William W. King and the said Susan King, then Susan Atkinson, which agreement is as follows:

“Know all men by these presents that we, W. W. King and Susan D. Atkinson, both of the county of Cooper, in the State of Missouri, intending and. mutually promising to be and become presently joined together in the bonds of matrimony, do hereby in consideration of such intention and promise and in consideration of such marriage about to be contracted as aforesaid, mutually covenant, promise and agree one to and with the other, that neither of said contracting parties shall by reason of such marriage have or claim any right, title or interest in any real estate of the other, either now owned or hereafter to be acquired, by this contract, it being expressly understood and agreed that all such claim, title or interest of each of said contracting parties to which under the law he or she would be entitled in the other’s lands and tenements is and shall 'be forever barred, so that upon the death of either, the title to his or her real estate shall by force of this covenant pass to and vest in his or her heirs or assigns free from any such claim, right, title or interest of the other.

“In testimony whereof, we, the said .parties have hereunto set our hands and affixed our seals, at Boon-ville, Missouri, this twenty-first day of October, 1885.

“W.W. King, (Seal)

“Susan D. Atkinson, (Seal)

“Attest:

“W. Gr. Pendleton,

“O. P. Davis.”

This agreement was-read in evidence by plaintiff • over the objections of defendant Susan King — she objecting to its introduction because said instrument was insufficient to bar dower.

*104The evidence shows that this so-called marriage contract was entered into between these parties a short time before their marriage. That at that time, the said William King was the father of ten children by a former marriage, and this appellant, then Susan Atkinson, was the widow of Andrew Atkinson, deceased, and the mother of seven children. That at the time of his death Mr. Atkinson owned a homestead of two hundred acres, and his widow at the time of making the contract in question owned no real estate except her dower or homestead rights in said two hundred acres. At the time of his death, Andrew Atkinson had a good title to one hundred and sixty acres of said two hundred acres, but as to forty acres there was a defect in the title, and after his death a quitclaim deed was made to Mrs. Atkinson to perfect her title.

The court having found and adjudged that appellant herein, Susan King, as widow of William King, was, by reason of said antenuptial agreement, not entitled to dower in her deceased husband’s real estate, she has prosecuted her appeal to this court. The only question in this case is whether the agreement read in evidence is effectual as a bar to appellant’s claim of dower.

I. Prima facie Mrs. King is entitled to dower in the lands' of which her husband was seized in fee during her marriage to him and in which she had not relinquished her dower. The defense is that by the ante-nuptial agreement of October 21, 1885, a jointure was provided for her, which, under our laws, bars her dower. Section 2950, Revised Statutes 1899, provides that:

“If any woman, prior to and in contemplation of marriage, shall, in agreement or marriage contract with her intended husband, or other person, receive any estate, either real or personal, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of all her claim of dower, such estate shall be valid, and a bar to dower in the e,state of her *105husband. When any lands have been or hereafter shall be conveyed to the husband and wife, or to any other person and their heirs, and to the use of the husband and wife, or to the use of the wife, for the jointure of the wife, every such married woman having such jointure shall not claim any. dower in the residue of the lands of which her husband was ^t any time seized.”

This section has been a part of our laws since 1825. [Rev. Laws 1825, vol. 1, pp. 333-4.]

It was construed by Judge Scott in Perry v. Perryman, 19 Mo. 472, wherein he pointed out that the statute of 27 Henry VIII, ch. 10, sec. 6, the first statute in England which made jointures á satisfaction at law for the claim of dower, did not require that a provision for the wife must be expressed to be for jointure in order to bar her dower and tlmt much conflict arose as to whether it could be shown by parol to have been intended as a jointure when not so expressed on. its face. “Under this state of things,” says Judge Scott, “our statute [section 2950, R. S: 1899] was enacted, which unlike the act of 27 Henry VIII, required that the provision made for the wife, if designed to exclude her from dower, or to put her to an-election, should be expressed t'o be in full discharge of all her claims of dower. We are warranted, then, in the conclusion, that our statute was worded as it .is, in order to dry up this source of litigation.” This exposition of this statute has been universally accepted by all the courts of this State from the dáte of its promulgation up to this time. [Dudley v. Davenport, 85 Mo. 462; Martien v. Norris, 91 Mo. 465; Farris v. Coleman, 103 Mo. 352; Rice v. Waddill, 168 Mo. l. c. 113; Moran v. Stewart, 173 Mo. 207; Saunders v. Saunders, 144 Mo. 488.]

As a legal jointure it seems too clear for argument that the antenuptial contract between Mr. and Mrs. King was ineffectual for the simple reason that it nowhere expresses that it is in satisfaction of her dower and the statute being imperative if must be ruled that this agree*106ment did not operate as a legal jointure to bar Mrs. King’s dower.

It is equally insufficient for the reason that by it she received no estate, either real or personal, from her intended husband to take effect after his death. It does not profess to give her any property of the husband’s. No provision was m^de by him for her support after his death. It is true it is urged that by it the husband gave up his property rights in her estate, and that as she had a dower and homestead right in the estate of her former husband it was sufficient as an equitable jointure.

In Mowser v. Mowser, 87 Mo. 440, this court said: “The widow must receive under it, real or personal property as a provision for her support during life; it is against public policy tO' allow a man, by an agreement before marriage, which does not secure to the wife a provision for her support during life after his death, to bar her right of dower. The statute sanctions no such agreement. ’ ’

In Farris v. Coleman, 103 Mo. l. c. 360-361, Judge Black, speaking for this court, said: “Again the statute contemplates that the woman shall receive some estate, real or personal, by virtue of the contract, and the contract in this case does not profess to give her any property whatever. The contract concedes nothing to her but what she then owned or might acquire. As the contract does not profess or undertake to give plaintiff any property, save that which she then owned, or might thereafter acquire, and as it is not expressed to be in discharge of dower, we are of opinion the contract does not, at law, bar the plaintiff from dower in her husband’s real estate.”

It is true the same learned judge continuing said that it had been ruled in Johnson v. Johnson’s Admr., 23 Mo. 568, that our statute did not extinguish equitable jointure and that it might be “that such an agreement would constitute a good equitable jointure, if in point *107of fact the wife had an estate of her own before marriage. ’ ’ But that remark was clearly a mere observation outside of the case in hand. In this case the evidence discloses that the only estate Mrs. King had was an unassigned right of dower and homestead in her former husband’s estate. But the fact that her children did not' see fit to have her dower and homestead assigned in no manner released Mr. King from his marital duty to provide for her out of his own estate if he desired to bar her dower which the law gave in his estate.

By .the statute in force at the time this agreement was made, and when Mr. and Mrs. King were married, “Any personal property, including rights in action, belonging to any woman at her marriage, or which may come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means, or to be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control.” [Sec. 3296, R. S. 1879.] By section 3295, Revised Statutes 1879, no conveyance made during coverture by her husband of the rents, issues, and products of her real estate was valid unless the same was made by deed executed jointly by her with her husband. It will thus be observed that the considerations which appeared weighty to this court in Logan v. Phillips, 18 Mo. 23, viz., that, “by the marriage, all the personalty of Mrs. Logan immediately vested in her husband, and the antenuptial contract, impliedly created a trust, which secured it to her, ’ ’ are wanting in this case since the adoption of section 3296, Revised Statutes 1879, in force when- Mr. and Mrs. King were married. But again recurring to the statute which requires the jointure to be expressed to be in lieu of dower, in Logan v. Phillips it was expressly provided that the settlement should be in lieu of dower, and the same is true of the agreement in McGee v. McGee, 91 *108Ill. 548. Judge Scott, who wrote the opinion in Logan v. Phillips, expressly calls attention to that case in Perry v. Perryman, 19 Mo. 474, saying, “There is nothing in the case of Logan v. Phillips, 18 Mo. 23, which affects the question now before the court. There, the settlement was expressed to be in lieu of dower.” When the statutory requisites are not all found in the provision by the husband for the wife by will or otherwise and yet it is manifest that the husband did not intend her to have the provision and her dower also, she will be compelled, in equity, to elect between them, and this is. known' as equitable jointure. Pounded as it is on the intention of the husband as disclosed in his will or other instrument containing the provision, it sometimes involves very difficult considerations, but when, as in ibis case, the husband has made no provision whatever out of his own estate, but simply permits the wife to receive the rents out of her dower in her former husband’s estate, in a word, merely permits her to keep that which is already her own, we think it falls far short of that equitable provision which will bar her dower. In our opinion there was no provision made for her by Mr. King and that she is not barred by the antenuptial contract.

The judgment is reversed and the cause remanded with directions to the circuit court to enter judgment for Mrs. King for her dower in the lands sought to be partitioned.

All concur.