*1 486 Anthony O’Halloran, Adminis- Schwind, Appellant,
Elizabeth Schwind, A. of Charles of the Estate Lite trator Pendente Eugene S. Schwind, Appellants. Schwind Ferdinand (2d) W. 55. Two, 3, July 1940.* Division 1940; Opinion September Term, May 4, re- *NOTE: filed at spondent’s rehearing filed; motions to transfer Court en Banc May Term, 1940, July 3, at motions overruled *2 William Kohn A. Neumann for plaintiff-appellant; .Charles Eugene Ferdinand and Scbwind. *3 of counsel. Krueger respondent;
Suelthaus Robert G. Powell *4 Sehwind, the widow Elizabeth anis action BOHLING, C. -This O’Halloran, Admin- as Anthony against A. Sehwind, of Charles A. deceased, Sehwind, A. of Charles pendente istrator lite of the estate to seeks Plaintiff Eugene Sehwind. and Ferdinand Sehwind and sons, the transferees, her her (and of establish interests herself face aggregate notes of Sehwind) eight 'certain codefendants her trust, as deeds of $40,000, value secured entirety (as well as during lifetime husband and herself his restrain death), and to his to payments subsequent to made thereon and her herself rights interfering with from said Administrator alleged, petition and to Plaintiff’s property. said said transferees Eugene Ferdinand joint answer of as does the defendants of trust notes and Sehwind, plaintiff said deeds that transferred there- the income defendants, subject plaintiff’s reservation of said agreement support life, from in сonsideration said defendants’ her life. O’Halloran her for the remainder of Defendant maintain briefly stated, of trust constitute contends, notes and said deeds that, ever held part Sehwind, deceased; if estate of Charles A. cause; entirety, plaintiff’s estoppel laches and are fatal him and said as Ad- defendant turned over have same seeks plaintiff ministrator and his codefendants aforesaid to restrain Judg- interfering rights from with his therein. as such Administrator O’Halloran, ment degree Administrator nisi defendant as aforesaid; Sehwinds, defendants, appeal. plaintiff affirmatively record the amount involved exceeds establishes $7,500. developed respect with and deeds of Facts to the notes subsequent here important to the death of Mr. Sehwind are not are omitted.
Charles having A. Sehwind died March far as testate 1935. So any bearing gave, bequeathed issues, the instant he devised and estate, all of payment his after expenses, his debts funeral widow, to his They together Elizabeth Sehwind. had lived fifty-seven years. wife for widow, than his Other heirs at law were Eugene Koch, Ferdinand Sehwind, Sehwind, Edna Mattie Feger, children, their Sehwind, A. of a Charlеs the son deceased son. appointed upon Defendant O’PIalloran Administrator *5 institution of a will contest.
Between 1906 and Mr. acquired and Mrs. Sehwind title to 1220-1224 avenue, Russell avenue, 5229-5233 Gravois 5401 Gravois avenue, and 5027-5029 avenue, city Louis, all in Louisiana the of St. Missouri. In each warranty conveyed instance the the deed real wife,” Schwind, Elizabeth and A. Sehwind estate to “Charles by “the paid been had that the consideration grantees, and recited as ’ grantees. ’—said part the second parties of 27, 1922, March warranty deed dated Sehwind, by Mr. and Mrs. of “$100 for the consideration
conveyed avenue recited 5401 Gravois con- actual paid.” The considerations to them and other valuable A. paid by a cheek Charles $19,500 and was issued sideration was Schwind. conveyed Mаy 29, 1922, 5229-5233 by They, warranty deed dated ‘ ’’ ‘ paid. to them for recited consideration of $100
Gravois avenue follows: $19,000 and evidenced The actual consideration was was as and a $6,000 $9,000 by a first deed of trust cash; a note secured $4,000 by property. deed of trust on the note secured second conveyed
They, by warranty 3, 1923, deed dated November property “$100 Louisiana for thе recited consideration avenue $15,000; them of which paid.” actual consideration was The $6,500 cash; $8,500 by for was and was evidenced two notes—one $6,000 $2,500 secured, respectively, and other for a first — and a deed property. second of trust on the aforesaid deeds of trust named A. Schwind *6 He testified etc. acknowledgments, taking conveyances, drafting the selling, buying, dealing was by by 1925 Mr. Schwind that 1924 or in— Schwind witness; that Mr. through the trust exchanging, of etc.-—deeds 1922; way in a small in began buying of trust possibly deeds including transactions, all the Mr. handled directed that Schwind not Mrs. Schwind'did interest; that principal the collection instance, Schwind Mr. that, for matters; any control over such assume payments Schwind to Mrs. 1927 to turn over witness in instructed the 1932, pay- in note, and $2,250 a secured made on certain thereafter of outstanding balance having an on a note ments secured made had the record, thereafter $1,400 but, undisclosed of for some reason himself; issued due thereon covering $377.70 check a balance of last business on home at the frequently that the called Schwind witness when Schwind, and that Mr. matters, with which were transacted attend had the witness 1924 Mr. was erected in Schwind home and deed $12,000note payment of construction bills. The all the by Schwind, secured standing and Mrs. of trust the names of Mr. in in- as his handled Mr. Schwind property, Russell avenue were notes property, dividual were the other secured the same as cash derived from the of real estate. sale said original deeds of
At the time of Mr. Schwind’s death none of the he had in which рossession. only property trust remained in his interest, record, an and the secured according place was the home the real proceeds notes here involved. The derived from the sale directly estate, notes, traced the notes cash and secured were not litigation; except the aforesaid deeds involved this $12,000 note, together (the source $2,500 which secured notes with two three directly record) exchanged of which is not shown of were involved, notes, aggregate $13,500, face value secured here $1,500 $2,000 cash testi- We deem other account receivable. interest, mony respecting handling given few of a checks etc., slight interest probative establish Mrs. Schwind’s force to detailing and refrain from it. safety depos
In 1925 Mr. kept Schwind rented and thereafter it deputized box. The box stood in his name but Mrs. Schwind was authority enter the box. but This was once revoked Mr. Schwind was gives reinstated him two indication weeks later. The record no that Mrs. knowledge Schwind ever action informed or had of this during February 11, 1935, Schwind, Mr. Schwind’s lifetime. Mrs. On company Ferdinand, with her son entered the box and took notes testimony, deeds of trust here involved home. There was not do; credited chancellor, that Mr. Schwind instructed her so to following day delivered these notes Schwind gave Schwind, deeds of trust and therein to Mrs. his interest stating they were much Mrs. as his. Schwind’s in blank— endorsed parties third and had been payable to notes were payable to bearer. secured alleges her held the petitiоn she
Plaintiff’s shortly his death entirety; prior also, notes as tenants surrendered,“Ms *7 in the Administrator plaintiff. pleas to The not the alternative and are authority says they necessarily are no inconsistent. We cited to are by an may the holding a transfer his interest in estate not entirety wife. contention is overruled. to his The is, says actions, his
The
Mr. Schwind’s
that
administrator
assuming
proceеds
from the sale
control
the
derived
and dominion of
by
an intention on the
entirety,
the real estate held
the
established
part
title
real
of Mr. Schwind
the effect that the
to the
estate
to
taken in the
and
as matter of convenience
names of himself
wife
only
resulting
real
in Mr.
and that
in
estate existed
said
Fulbright
207,
Co.,
Schwind’s favor.
329 Mo.
216
v. Phoenix Ins.
sufficiently
W. (2d) 115,
distinguishes
44 S.
117
[II],
[2, 3],
specifically
by
of the
relied
Administrator
upon
mentions
cases
the
most
pointed
this
It is
issue.
there
out that no case was found establish
ing
money
a trust in the husband’s favor where he
the
furnished
purposely
conveyance
the
had
to
wife or himself and
made
wife
his
by reason of “his mere intention that the deed should not have the
full
law
effect the
affixes to it.” The court
that to so hold
reasoned
only
сontrary
not
well-recognized
“would
be
rules
law relative
conveyances
instruments,
written
other
but would
un
breed
certainty
regarding
open
confusion
real
titles to
estate and
the
way
perjury.”
also,
for
commission of fraud
See,
Hague
Britain,
89,
wood v.
273
92
Mo.
494 removing tbe entirety an tbe estate tbe wife’s interest tect Ashbaugh, 273 Ashbaugh v. jus common law. mariti аt husband’s Saxy, Brewing v.Co. 72, 73 Stifel’s 353, S. W. [3]; [II], Mo. not shall part: “This section supra, supra. provides Section his any reduced any property personal husband to effect the title per- said Provided, that wife: of his express assent possession with the possession reduced to have been deemed to not be sonal shall thereof, but protection or use, occupancy, the husband his care .” fact . . property. her separate remain shall the same ground the husband afford and wife does not they are husband wife, property of his will, irrespeetive consent reclaiming at effectively given wife. theretofore all of Mr. Sehwind furnished proof no positive There is Each deed conveyances himself and wife. for the the consideratiоn therefor. consideration paid the recited that Mr. and Mrs. Sehwind title and directed that the consideration paid Had Sehwind wife, presume intended the the law would he be vested in himself Frey (Mo.), (Liberstein conveyances provision his wife *8 as a 220 92 W. S. S. W. (2d) 929, 114, 930[2], 117 [1] among others), ; Bender v. Bender, 281 Mo. parol evidence of mis 473, 476 a [I], affording from legal escape the convenants fraud or aсtion take or other convincing, clear, cogent as well as the have be of would deeds Brown, (Curd no doubt v. as to leave room for positive so definite 444, 82, 990, Viers, 992 175 Mo. 148 Mo. 49 S. W. Viers v. [I]; 92[I], Danford, 608, 395, 398; 588, v. 292 Mo. 238 453, 75 S. W. Wimbush 460, being record, no such of the S. W. 466 There evidence [5]). entirety by the of an the in real estate stands estab existence estate lished. Frost, 474, 484, 527, 529,
In 200 Mo. 98 118 Frost v. S. W. 689, by Am sold real held Rep. St. the husband and wifе estate the entirety $3,000. possession The husband took and control of said money $2,800 applied purchase thereof to the of land, other the title to which taken in his own name. court if was The said: “. . . proceeds property belonged the husband takes the that him and entirety taking his in invests the same in other wife land the title alone, equity, wife, himself a court of at the the suit оf will raise favor, resulting in a trust her decree that the husband holds the himself an in entirety;” title in trust for wife and as estate $2,800 part constituted purchase the extent that price the de- by entirety the in Lasky creed an estate the land. Hamrick v. (Mo. 201, (2d) S. W. App.), surplus 107 holds the 203[1], received at by property entirety a sale of the foreclosure entirety retains its See, also, Kingman Banks, v. 212 202, character. Mo. App. 251 following 449, Brewing Stifel’s Union Saxy, S. W. Co. v. supra. In words, proceeds the derived from the by other sale of property held
495 entirety factors, characteristics entirety, other retains its absent upon reinvestment. follow it and such characteristics Savings Loan Safety v. Administrator cites Williams Safety 138, (2d) 787, 135, 58 W. 789 Assn., App. 228 S. Mo. [6], App. 595, 600, 71 S. Savings Williams, v. 228 Mo. and Loan Assn. by holding preexisting 848, a estate (2d) W. 851 [9-11], a entirety extinguished by a under deed of was foreclosure sale Plaintiff They on reach the instant issue. property. do not entirety. recreate, by or an not seek renew revive does estate entirety record, not Under the the estate did cease to exist the, upon merely of the real but was transferred from sale estate proceeds real estate to the derived threfrom. The Frost and Hamrick cases, 513, City, 209 Mo. supra. Consult also Holmes Kansas 9, 12 123 Am. Rep. S. W. St. [I], [I], any gift by
There is no her evidence Mrs. Schwind of interest to Mr. Schwind or a reduction her her husband of interest said possession writing to his her in with assent or He was otherwise. much possession use, entitled protection as she. His mere care or change did not ownership. affect its sufficiently
Does the proceeds evidence from real trace the entirety estate held to the secured here notes involved? We think so. evidence of Schwind, record the issue is that Mr. 1921, paying when he retired still or proper on one two of the ; ties that he and Mrs. Schwind thereafter lived off of the rentals of the
properties procеeds and the and interest derived from their sale. From testimony this it proceeds is clear that the the sale of real entirety estate held furnished the means of subsistence for Mr. and Mrs. Schwind purchase of the secured *9 any money not property any have or of consequence source,” from except that life, held as such tenant for was considered sufficiеnt to given trace property by the life tenant to the others to of estate the testator. (Mo.), See also Roberts v. Roberts 485, 291 S. W. 486[2], 488 $12,000 Additional factors exist: The secured note held [10]. entirety the was traced the into secured notes in suit. Mrs. Schwind deputized safety to enter Mr. deposit box, Schwind’s where he kept papers. valuable The secured notes involved are endorsed to bearer. Mrs. Sehwind had possession them in her at the time of her They, husband’s death. according to the undisputed testimony, were possession delivered into her by Mr. after Schwind requested he bring her home, to them to their they with the statement belonged to they Mrs. Schwind much belonged as as to him. All this is in recog nition of Mrs. Schwind’s in property interest the holding by and a entirety. the
The contention estoppel preclude laches plaintiff
496 controversy scope of this The against Administrator. the ruled is husband analyses rights of the the in final to restricted is entirety possession. in the an estate in residue of wife the of laches The doctrine are party involved. rights no innocent third of it. is akin to equitable estoppel and borrows from the doctrine of nearest (2d) 63, 64 the [3], (Mo. 11 S. W. App.), Zahner Voelker v. a administrator cases, husband’s in of the Administrator’s point wife, although the in the name of property no taken had claim to full husband had entirety, where derived from an estate being taken the title acquiesced in consented to knowledge of, holding not discussed. estoppel aré the wife. Laches In rulings, supra. Liberstein, Bender and other conforms 874, 875, 868, 1, 27-29, W. third Meadows, 225 123 S. Blake Mo. v. asserting result from a unsuccessfully sought estop a wife parties by the inheritance purchased in with the wife’s ing rule apply refused in his name. The court taken against We harshly the wife. particularity of and with close estoppel personnel of “The interpolate [estate,] in the conclusion: [and must not be legal relationship estoppel involved in those between] sight of, sufficient unreasonablе to hold facts lost it is not Susan, estop would not estop a ‘lord of Socrates or other creation’ Smith, all.” v. Mary good Jane and mothers Stevenson Missouri — 447, 467, 86, “judicial indisposition a 92, 88 W. avows 189 Mo. S. dealings to the apply particularity doctrine of laches with close manager, son, with an her a of old mother with confidential business ,the resided, depended of whom and on whom she she solaces Annotation, 251, n. 71 p. filial ministrations.” 21 C. J. [b]; Consult Harvey 374, 168 Long, A. L. R. v. 260 Mo. 384[II], 121 1401[g], 708, wife; “They W. are husband and of S. states: members 710[2], single family is, law, he in contemplation a of which of the director They agents, other, perfor head. in the are the natural each respective positions. mance of their It would exhibit duties superfluity keep the same caution in the wife of a man to business strong keeping important her her papers, box of own for safe keep separate man kitchen repository as for a officeor which might idiosyncrasies personally provided he control food for the palate. of her property of his own Care and watchfulness interests naturally province within do come as care and wаtchfulness menage may successfully only within hers.” Laches be invoked justice there some natural back of it. Stanton v. Thompson, when is 7, 698, 701 234 Mo. 15 136 S. W. [d]; Gossom, Adams 228 [d], 16, ; Hohl, 199 Bucher v. 566, 320, Mo. 129 S. W. Mo. [f], [f] 922, 925, Rep. 116 Am far 97 S. W. St. So as indicated *10 record, assumption the instant Mr. Schwind’s dominion over entirety and Mrs. Schwind’s inaction resulted advantage, injury Mr. not his or detriment. We Schwind’s need position any distinction between possible not discuss (cid:127) 3003, supra. under Sec. respect with to these issues and wife establishing gift by of his interest testimony Schwind judgment chancellor. The discredited to Mrs. Schwind was remanded with directions to therefore, cause reversed is, entirety of an estate upon the existence decree based enter a Cooley Westimes, Schwind. during joint lives of Mr. Mrs.
CC., concur. by Bohling, C., adopted foregoing is opinion PER CURIAM: The concur., judges All opinion court.
as the (2d) Appellant. Benson, S. W. Frank State Two, July 3, 1940. Division appellant. B. Bell and Ellis G. Cook
Charles General, and Boy McKittrick, Attorney Bradley, L. Lawrence As- Attorney General, respondent. sistant notes Charles beneficiary as the sole and each of said deeds of trust recited it given security part payment purchase price was of the property. In 1924 Mr. Schwind erected a at 3941 avenue home South Grand at a $15,000. cost of about This Mr. property also was held Mrs. entirety. Schwind They, by warranty January conveyed 25, 1928, deed dated Russell avenue property for “$100 the recited consideration of other valuable paid.” considerations to them The actual consider- $18,000, consisting ation was $12,000 aof note a first deed secured of trust $6,000 on the cash, which cash was evidenced check, adjusting items, after $5,564.05 payable certain to a Feger, Mr. mentioned infra. Mr. Mrs. Schwind were named as payees in note this and as beneficiaries in deed trust. this Mr. Sehwind retired from paying business 1921. He still was on one or properties. two of gainful pursue any He did not occupation thereafter. Mrs. Schwind’s time was taken with house- hold raising family. duties of a occupation. She had no other only testimony affirmative record the issue is Schwind, Mrs. after Mr. retirement, Schwind’s lived off of the rentals proceeds from sale the real estate and interest from the secured notes. The amounts involved in foregoing $38,000 total transactions $33,500 cash in notes Feger, and deeds of trust. Mr. a son-in- law of Mr. Sehwind, engaged in the real estate business handled or assisted the foregoing transactions, Schwinds
Notes
notes in and delivered gave he interest” said
notes Schwind. Graham v. Stroh, In 342 Mo. 117 S. W. 694[2], (2d) 258, showing 261[6], a tenant life under a will “did