93 Mo. 307 | Mo. | 1887
This is an action of ejectment, in which plaintiff obtained judgment and from which defendants have appealed. It appears from the record that plaintiff, who, in 1874, was the owner of the lot in controversy, conveyed the same by deed to one Hilker, as trustee, for the sole and separate use of his wife. So much of said deed as has a material bearing in this suit is as follows : “Intrust, however, to and for the sole and separate use, benefit, enjoyment, and behoof of the said Charlotte Soltan, wife of Frederick Soltan, and her heirs and assigns, the said Henry Hilker, party of the second part, hereby covenanting and agreeing that he will suffer and permit her, the said Charlotte Soltan, without let or molestation, to have, hold, use, occupy, and enjoy the aforesaid premises, with all the rents, issues, profits, and proceeds arising therefrom, whether from sale or lease, for her own use and benefit, separate and apart from her said husband, and wholly free from his control or interference, and from his debts, in such
Plaintiff testified that the said conveyance was voluntary, and made to protect his family ; that .the lot, at the time it was conveyed, was worth $1800 or $2000, and had an encumbrance upon it amounting to $500, which other evidence showed was subsequently paid by his wife. Some time after the deed was made, plaintiff and his wife quarreled, after which they lived separate. Charlotte, his wife, died, leaving a will, dated February 23, 1885, in which she devised all her real and personal estate in equal parts to her three children, who are the issue of the marriage between plaintiff and said Charlotte, and who are the defendants in this suit, and claim the lot in controversy under said will.
Two questions arise on the above state of facts, the first of which is, was plaintiff entitled to curtesy in the real estate conveyed to Hilker in trust for the sole and separate use of his wife, her heirs and assigns ? The second is, did the will of his wife deprive him of such right ?
The second question, viz., was plaintiff deprived of this right by the will of his wife devising the land to their children, is answered in the negative by Revised Statutes, section 3961, which is as follows : “Any married or unmarried woman of eighteen years of age and upwards, of sound mind, may devise her land, tenements, or any descendable interests therein, or bequeath her personal property held in her own right in possession or expectancy by her last will and testament, subject to the rights of her husband, if any, to his curtesy therein.” As the husband cannot, by will, deprive his wife of her right to dower in his lands, neither can the wife, under the above statute, deprive her husband of his estate by the curtesy in her lands.
Judgment affirmed,