68 Mo. App. 499 | Mo. Ct. App. | 1897
Suit on promissory note begun by .Wells, administrator of the estate of T. F. Risk, against Moore, before a justice of the peace on a note made by the appellant and payable to decedent or his wife. Risk died in February, 1894. His wife died in December, 1894. There was a judgment against the defendant both before the justice and in the circuit court, and the defendant by successive appeals has brought, the case here. There were no instructions asked or given and no exceptions saved as to the admission or rejection of evidence. The contention of the appellant is that on the conceded facts the judgment ought to have been for him.
It was held in Folk’s Administrator v. Allen, 19 Mo. 467, that a gift of a slave to husband and wife, on the death of the husband would go to his representatives. At common law there could be no joint ownership of a chattel by husband and wife, as held in the above entitled cause. The entire title immediately vested in the husband. This decision was promulgated before the statutory innovations or ehanges in this state governing the property rights of married women. But we have a different case here.
In the case of Shields v. Stillman, 48 Mo. 86, it is held that a noté made payable to husband and wife, on the death of the wife, would go to the husband as survivor. The weight of authority, both English and American, recognize and enforce the right of the surviving husband or wife to the entire property. Cowper v. Scott, 3 P. Wms. 120; Bond v. Simmons, 3 Atk. 21; Kingdon v. Bridge, 2 Vern. 67; Craiz v. Craiz, 3 Barb. Ch. 104; Draper v. Jackson, 16 Mass. 486; Christ Hospital v. Rag, 2 Vern. 683. The use of the wife’s name in the note in suit must have been for a purpose; that purpose it is reasonable to presume was for her advantage. Had the husband desired to be the sole and exclusive owner, and have the note go to his representatives in the event of his death, before its maturity or collection, it is not likely he would have had his wife’s name placed in the note as one of the payees. It appears to us that in the phrase, “T. E. or Mrs. T. F.
Appellee contends-in his argument that Mrs. Risk voluntarily gave up the note. She handed the papers of her deceased husband to his administrator, among which this note was found. Nothing was said about this note; her attention was not called to it by the administrator, and from aught that appears in the record she may have been totally ignorant of its existence. Upon such slight testimony it should not be presumed that she surrendered her right to this note. The maker has the right to make the defense he is making. When he pays the note he should be discharged from liability thereon. Payment to appellee would not, in our judgment, discharge that liability.
