175 Mo. 362 | Mo. | 1903
— This 'is an action for partition of real estate described in tbe petition. That we may fully appreciate the issues determined by the trial court, we here quote substantially the pleadings in this cause:
The amended petition alleges that on the 24th day of March, 1897, James Craig died intestate and seized of an estate of inheritance in certain real estate described in the petition, situated in the city of St. Louis, which it is agreed by the parties has been correctly described. That upon one of said parcels of ground, being lot 24 of Nicholson Place, a deed of trust to secure the payment of a note for the sum of twenty-five hundred dollars was executed by the deceased, conveying the same to defendant Wade as trustee; and that defendant Bofinger was the owner and holder of said note. That said James Craig left as his sole heirs, the plaintiff, who is his lawful widow, and the defendant, William John Craig, his lawful child and the only issue of his marriage with plaintiff. That on or about the 8th day of May, 1897, -the plaintiff elected to be endowed absolutely in a share of said parcels and tracts of land equal to the share of a child, as will dppear from her •election to be so endowed, absolutely, pursuant to sections 4523 and 4524 of the Revised Statutes of 1889, which election was duly filed for record in the recorder’s office of the city of St. Louis, on May 14, 1897, and is recorded in boot 1410, at page 7. That the parties hereto have title to said real estate as follows: The plaintiff is entitled to the one-half part of said estate; and the defendant, William John Craig, is entitled to and claims the other one-half part, but that the defendants, Mary Louise Craig and Emma Craig, also claim a life interest in the said property by virtue of the will of ■.said James Craig, deceased, dated December 11, 1893,
The original answer of Mary Louise and Emma Craig was'filed June 16, 1897, and admitted that James Craig made his last will and testament and thereby bequeathed property to them, but denied every other allegation of the petition.
The amended answer of defendants, Mary Louise and Emma Craig, was filed on the 18th day of October, 1897, and'is as follows:
“Now come Mary Louise Craig and Emma Craig, and by leave of court file this their separate amended answer to the amended petition, and state that it is true that James Craig made his last will and testament, and that it was admitted to probate on the 5th day of April, 1897. And further answering, these defendants deny the allegations of the amended petition, except as herein specifically admitted.
The plaintiff’s reply to said amended answer was filed on the 1st day of November, 1897, and is as follows :
“And now comes the said plaintiff and for her reply to the separate amended answer of the defendants, Mary Louise Craig and Emma Craig, herein, denies each and every allegation of new matter therein contained. , •'
“And for further reply to the said separate ■amended answer plaintiff says that the said James Craig did against her objection, to-wit, about the year 1835, leave her in Ireland when her son, defendant William John Craig, was an infant about four months old, and while she was in delicate health, unable to endure the hardships of ocean travel and was advised by her attending physician that a journey across the ocean would imperil her life; and that he then promised to' return to her or to send for her and not forsake her for more than two years; that said deceased thereupon came to the United States, and became a resident of the city of Philadelphia in the State of Pennsylvania, where he resided for about twelve months thereafter, and unmindful of his marital obligations to the plaintiff herein did then.and there attempt to contract matrimony with one Miss Woodburn, and that because of his former marriage to plaintiff, then not nor never since dissolved, he was apprehended and fled to the State of Missouri, which was then difficult of access and could only be reached by river and overland by stage; that just prior ‘to his leaving Philadelphia as .aforesaid, he, by letter, informed plaintiff that he was ‘going to the territories where no one could touch him; ’ that thereupon plaintiff continued to abide with her parents in Ireland, and did within a short time, to-wit, two years after the receipt of said information from said James, herself come to the
The other defendants have duly entered their appearance and answered, but said answers are not material to the main issues involved, as it is not denied that the deed of trust exists upon a part of the said property and is a prior lien to that of the other parties hereto.
Tbe entire bill of exceptions is not before us and we find tbat appellant has filed an abstract of tbe record, purporting to recite the evidence introduced in this cause, and also tbat respondents filed a statement of tbe evidence purporting to recite tbe evidence contained in tbe original bill of exceptions. As there are no objections indicated by tbe record before us, by either party, to tbe statements as to tbe evidence introduced, we will assume tbat tbe recitation by both parties of tbe testimony introduced, is correct.
■ Tbe facts as indicated by tbe testimony contained in tbe abstract of tbe record as furnished by appellant, supplemented by tbe statements of tbe evidence as furnished by respondents, are as follows:
Tbe plaintiff, Margaret Wilson, alias Craig, testified by deposition, taken on tbe 18th and 19th days of June, 1897, at Catasauqua, Lehigh county, Pennsylvania, which said deposition was filed October 1, 1897, as follows:
Direct Examination: “My name is Margaret Craig; have been going by tbe name of Wilson of late years; my maiden name was Margaret MacAlister; was born in suburbs of Garvagb, Ireland; my mother’s name was Margaret MacAlister, .and my father’s name Anthony. Tbe first time I was married to James Craig by a Reverend Dr. Brown, a Presbyterian clergyman, at tbe home of my parents in Garvagb, Ireland; there were present my husband’s parents and mine, and my sisters and brothers younger than me; all children most; Daniel was there, but was a child, pretty near; they were all children much younger than me, many years;
“James Craig’s father was John Craig, and his mother, Isabella; he had one sister, Ann, the oldest who was married to John McMullen; they lived in the suburbs of Garvagh; they had children, but don’t know them; his business was a farmer. James Craig’s father, John Craig, was a farmer. His other sisters were Nancy, who married Hugh McMullen, a brother of John McMullen; they had children, but I don’t know them; they lived in the suburbs of Garvagh; he was also a farmer. Then he had a sister Mary, who married William Gilmore; I don’t know whether they had any children or not. He had no other sisters that I know of. James Craig had brothers named Eobert, William and John. Eobert married my sister and came to this ■country, to Philadelphia. William married a Miss Gilmore in Ireland; I don’t know whether they had any children. John Craig married ,a Miss McMullen; they had children, but I don’t know how many. None of these brothers and sisters of James Craig came to this cóuntry besides Eobert. I knew a Gilmore in this ■country, a cousin of James Craig, a tailor; he came to this country; I don’t know his first name; I knew Mm, but I didn’t know what he was; I heard he wias dead; I saw him often at my own house in Philadelphia; that is a good many years ago; I am forty years in this town; I can not tell what year; it was over forty years ago; I heard of him, but I never heard anything in particular ■of him. I lived with my husband in Ireland not quite
‘ ‘ Q. You say you were not well enough and strong-enough to come to America with your husband? A. That was the objection of my parents.
“Q. That is the reason why yon did not come with him? A. Yes.
“Q. Was that the only reason you did not accompany him? A. As far as I know, we were very good friends, sir; he making a good resolution to me when he was going away; in the same afternoon when he left, twelve o’clock at night, he asked me to come upstairs, and he would tell me what he would say to meif he would agree to come away without me, my parents not being willing to have me go (I suppose that I could have run away). Then I did not agree myself. Then I gave up to that I would come because they were so opposed to it. William John Craig, one of the parties to this suit, was a baby yet; he lay seven years awaiting for his papa to do something for him, and he got no support, nor hearing of anything coming. Every one said to me, no one will know you are married; the night before he left at twelve o’clock, he said, now Margaret, if you will agree for me to go away, I will tell you what I will say to you, if I can say anything about it; that he would tell me what he would say, and if you bring up your mother and aunts, the sisters, two aunts were there, to me, I will tell you what I will say: I will go to America with these young men, if I would say — that is what he wanted me to say — his wishes was that if I would say nothing about it, I will say to you if you say I can go on these terms; I will take my Lord, I will call the Lord my dying judge if I ever forsake you longer than two years, and my son; I will have you there independent of anybody.
‘ ‘ Q. Do you know why he went to the territories ? He was going to get married, and he was defeated there then.
“Q. Why was he defeated? A. Because they were told that his wife and child were waiting at home for him. He left money on deposit there in the bank when he left. He did not take time to take the money. I know Mr. Bacon well; he was treasurer for a deaf and dumb asylum.
“Q. Do you know if James Craig ever came to Philadelphia while you lived there? A. I don’t know that; I never knew that; I don’t know anything about that. It might be, but I don’t know; I became acquainted with Thomas Wilson about a year before I was married, in Philadelphia; I think I was married under the name of Craig.
‘ ‘ Q. How did you come to marry your second husband, Thomas Wilson; under what circumstances ? Just
“Q. And up came Thomas Wilson and Robert Craig, is that it? A. Yes, sir.
“Q. What was their object of that visit? A. The object of their visit was for Robert Craig to verify that his brother James was dead, and for me to agree to marry Thomas Wilson.
• “Q. What did Robert Craig say to you? At that place, what information did you get about him? A. He told me that J ames Craig was dead. That was the main thing of the visit.
“Q. What were the relations between Thomas Wilson and Robert Craig, were they friendly or otherwise? A. They were no relations, just friendly.
‘ ‘ Q. Did you on that representation marry Thomas Wilson? A. I did not say that time, but I said I would tell them after a little; I would have to see my ministers, one in Catasauqua and one in Maueh Chunk.
“Q. Did you see the ministers? A. I did, sir, and they all agreed together. I first found out that James Craig was not dead after I was married some time, I don’t know how long; I can’t say exactly how long it was after Robert Craig told me that; I don’t know exactly when William John Craig first went to St. Louis; when he came back he gave me some information that was not favorable to him; he told me that he had his family there then; I said to Robert Craig one time after I was married, what made you tell me that story that James Craig was dead? Well, he said, he was dead to you, Margaret, because he has his wife and family; that is the way Robert explained why he told me that; I don’t know whether my son William John Craig went out to St. Louis a second time; I can
Cross-Examination: “My present age is something over eighty-six; I don’t know what year I was born; I don’t know indeed that my age is less than ninety; I can not say; I would not be willing to say without I take time to look over some of my private records and little things. I don’t know whether a marriage certificate was procured or not at the time of my marriage; don’t remember that I ever saw one; I don’t know that James Craig was six years younger than I; my brother Daniel might have been in the house when I was married, the children were all young then; Daniel might have been seven or eight years old or something; I can not say what his age is now; I can not come near to it. I did not preserve any of the family records of the MacAlisters; after my marriage to Mr. Craig we continued to live at my father’s house till I came to America; Craig’s father was just a short distance from my father’s; I was as much there as I was at my father’s, and so was the baby; we were just like one family, the two families; I think the date of my marriage to James Craig is 1832; I think it was in November; William John’s birth was the 8th of January, 1834, I think, as near as I can say; James Craig’s departure from Ireland was not quite two years after the marriage. Indeed I don’t know how long Mr; Craig had been in America when I came over; William John was four months old when he came over, so you can take the date from that; I received two letters from James Craig
44 Q. Did I understand you to say that in the last of these two letters — what was it that he said? A. I need not use any of the offensive language. I won’t use the offensive language. It was pretty much offensive, but not to me; to my father and brothers. He called my father some things that were not nice. 4 My proud father and proud brothers might go to hell’s fire, for he was away to the territories and they could do nothing. ’ That was the substance of that letter. I have no more .to tell about it.; It was too much to tell now or any time.
44Q. He said nothing disagreeable to you in the letter? A. Not a word, sir; he had not aught against me. That is what he said concerning me. The cause of his feeling toward my father and brothers was because my father and family knew I was not fit to come to America at that time on account of my health and the boy being so young. And both his father and my father were willing to take care of us; but he was like the farmer’s 4 polly; ’ he got into bad com
“Q. Do you remember the fact of the presence of James Craig in Philadelphia? Do you remember the fact that James Craig was in Philadelphia in 1841 or 1842. A. I don’t think he was, sir; I don’t remember the fact that he left twenty dollars for William John Craig, the boy; I remained on friendly terms with Robert Craig and wife during their lifetime; there was no ill-feeling between us; I visited their house as long as they continued to live; I went from here (Catasauqua) to Philadelphia frequently to see him; we lived fifteen years in Philadelphia before coming to Catasauqua after I married Thomas Wilson; at the time we moved to Catasauqua William John Craig lived there; I saw him frequently every day; I am quite sure I married Wilson in Craig’s name ;I am called that way in this town yet, Mrs. Craig. I remember when William John Craig went to St. Louis to seehis father, but I don’t remember the date; when he went there in 1855 he told me he saw James Craig, his father, and saw his family, both he supposed; he told me he saw his father but I don’t remember about the family; the next time he went I think he saw his family; I knew in 1855 that James Craig- was living; it was then that Robert Craig- told me that he was dead to me; I knew some time before that he was living; I could not tell when I learned it.
‘ ‘ Q. Did you not know that James Craig was there in 1841 or 1842 and visited your sister’s house, Robert Craig’s, and left a small sum for this boy? A. I never knew that.
“Q.. You néver knew that? A. L never knew that, never; there is no deception in my saying that; I
“Q. Knowing that James Craig was living, how did you understand that you could marry Thomas Wilson without a divorce? A. I did not fhiuk of such a thing, nor could not imagine, nor did not understand; perhaps I was too ignorant to understand that; but the council that met together of the most respectable clergy and doctors of divinity held a council over it, and I was advised by all of my friends that I was free from both God and man from the treatment I got. And any well educated- man that has a good education can see that in that I was not well treated. I never told my son John that I was divorced.
‘ ‘ Q. Did you understand how it would affect your children by marrying a man when you had a living husband undivorced?
“Objected to as calling for a question of law.
“A. He was a dead husband to me. The doctor of divinity from Belfast said if I was seven years without his support, and had to support the child and all that I was free by the- laws of the nation to get married. Then I lived that seven years and took care of my boy and worked for them; then there was no word of his doing anything; then I lived eleven years altogether without getting married. I was free before God and man for getting a home to- myself. As soon as I got married I got a decent home, and my husband told me to get William John Oraig and take care of him. Before I left Ireland I had a talk with this Belfast man, and he told me that if I lived seven years without marrying, and without support, I was free from him. He
“Q. Then before you left Ireland you had consulted about the abandonment and separation from your husband, Mr. Craig? A. Yes, sir, because he had done it himself; because he ran away and went to the territories, he said, where nobody could touch him. I have had children by Mr. Wilson — four of them living. William John Craig was the only child I had by James Craig.
“Q. What was it that Robert Craig told you before you were married? A. He told me that he was dead.
“Q. You knew he was not dead? A. I did not, sir. Oh, no, I did not know he was not dead; I was corresponding with the family; I was out here in the country the time Robert Craig came to tell me; I did not know whether-he was dead or not; I can not say anything I don’t know; I was out visiting William John Craig in the country; Robert Craig came out to see me on a visit; he had Thomas Wilson along with him; I can mind that. Then he came to verify that James Craig was dead. After I was married, in my house in Philadelphia, the next house to theirs, I was out every evening; up to death we were always together. I asked him what made him tell me the story; he said, he was dead to me, for he had a wife and family; I knew nothing coming from St. Louis except what came through him, Robert Craig. They came there and made a visit there at Kreidersville, which is from here about two or three miles — Bath is a few more miles, and there my minister lived, Rev. Irvin. Then I said when they asked me some more questions after they told me this time that James Craig was dead. They stopped over hight at the old gent’s house, and the next day the two traveled from Kreidersville over to Bath, about four or five miles, and went to see my minister. I said I must see Irvin, and
“Q. How long after Robert Craig told you this story was it till you learned that James Craig instead of being dead was alive? A. Not till after I was married ; and when I was married and had my second child I found out that first-; then I said to Robert Craig, what, made you tell me that story when I was at Kreidersville?1 A. He said, I told you no story, because James Craig was dead to you, for he had a wife and family; I learned some time after 1845 that James Craig was not dead.
1 “Q. Of course, when you reproached Robert Craig about telling you this story you then had learned that he was living in St. Louis? A. Yes, sir, and long before; and that was his answer, he was dead to me; during all these years I remembered what he- said the-day before he left for America, that God would be his dying judge if he would forsake me more than two-years; he said that the night before he left; I made no-inquiry as long as he was happy with his family; I had no right to write to him; I never made any complaints on him nor never made- any inquiry about him; I was. advised by that council that I was free from him.
“Q. You were advised that way again? A. I was so, conscientiously; I hope you believe me, because-
Re-direct examination: “I am not sure as to my age; I kept no family Bible where I kept the date of births; I never had it myself, I don’t know how old Daniel was; all my family were there. James Craig has never contributed one dollar to my support since he left Ireland. He never sent me any money to Ireland in these two letters. I consulted this minister, Dr. Cooke, after I received the letter from James Craig, my husband, that he was going to the territories. That is the only minister I consulted over there. There was no council of ministers over there; the council I speak of was here, when Robert Craig and Wilson came to Kreidersville. My father was an architect; James Craig’s father was a farmer. Originally I came to America to make a visit of a year. After he wrote this letter about my father and brothers it did not make any difference to me, but my father showed that to Dr. Cooke, and that was when Dr. Cooke gave this advice.
££Q. Yon had heard as well as anything you did not see that he was a resident of St. Louis at the time you came to this country? A. Yes, sir.
££Q. You knew that fact all the time?. A. Yes, I knew that all the time.
“Q. You knew that when you married Thomas Wilson? A. Yes, I did.
“Q. You knew that James Craig was living in St. Louis when you married Thomas Wilson? A. Yes, sir; and had his family; that is what I understood.
“Q. You knew the fact of his living there? A. Yes, sir; of living there with his family. [James Craig did not marry until May 20, 1856.]
££Q. Knowing that James Craig was living, how did you understand that you could marry Thomas Wilson while he was living and without a divorce? A. I did not think of such' a thing, nor could not imagine, nor did not understand that, hut the council that met together of the most respectable clergy and doctors of divinity held a council over it, and I was advised by all my friends that I was free from both God and man from the treatment I got. And any well-educated man who has a good education can see that in that I was not well treated.
££Q. Did you make known to the minister, Dr. Cooper, in whose parlor you say you were married, the fact that this undivorced husband of your was living? A. I don’t know; I suppose he did not ask me any questions about it.
‘£ Q. Did you tell Dr. Cooper that you were a married woman and that you were undivorced? A. I did not. No, sir; I did not. My husband, Thomas Wilson, was a member of his church, and very intimate with him. I don’t know what passed between them. It was all known to him.
“Q. I asked you whether you told him ? A. He knew I was not divorced from him.
‘ ‘ Q. Did you understand how it would affect your children by marrying, when you had a living husband undivorced? A. ■ He was a dead husband to me. The doctor of divinity from Belfast said if I was seven years without his support, and had to support the child, and all that, I was free by the laws of the nation to get married, etc.
“Q. Then it made no difference to you, so far as your conscience was concerned, so far as you understood your relations before the law, it made no difference to you, whether James Craig was living or dead? A. No, sir.
“Q. There was something said by you, as I remember it, about Craig’s leaving Philadelphia and leaving his money in bank? A. I suspect I did say it, because he did. Yes, sir; he left his money, for he went off in a hurry.
“Q. Do you remember when that was ? A. Not exactly, sir.
‘ ‘ Q. With reference to the time that you came to this country, when was it? After you moved to Philadelphia, or before? A. It was after we moved to Philadelphia, because Robert Craig was living at Philadelphia — being sent for to come to the bank to verify his brother that came from St. Louis. I was sent for to see whether I would accept of that money. It was $600. I told him I did not want it and did not accept it.
“Q. Did he send you any money to 'Ireland in those two letters? A. No, not to me; maybe to that boy; I don’t know.
‘ ‘ Q. Did he ever send any money ? A. I believe he did; his father got some money.
“Q. What wa,s James Craig’s father’s business?
“Q. Yon, of course, after he wrote this letter about your father and your brothers, you did not feel very friendly on that account? A. It made no difference to me, but my father showed that to Dr. Cooke.
“Q. And that was when Dr. Cooke gave this advice? A. Yes.
“Q. Did you answer the letters that he wrote you ? A. I never answered that.
“Q. Did you answer the first letter? A. Yes, sir; the first letter.
“Q. The second letter you did not answer? A. Oh, no, sir; that was all. I was asked at home,’Whenever you need money tell it, so I was not much troubled.
‘ ‘ Q. Mr. Taylor, you say, had in answer to a question of his, that you had known all the time, all these years, that Mr. Craig was alive at the time or just before the time you married Mr. Wilson, after Thomas Wilson and Mr. Robert Craig told you that he was dead, did you at that time believe that he was alive? A. I don’t know whether I believed it or not. I had a ticket for belief. .
“Q. You did not know at the time you left Ireland that he was at St. Louis or where he was? A. Yes, sir. ”
The plaintiff being recalled on the 14th day of October, 1897, in the city -of Worcester, Massachusetts (depositions filed October 1, 1897), testified:
Direct examiuation: “At the time my husband was in Philadelphia for that money, I did hot know that he was there at the time. I first learned from some of his brother’s family that he had been there; not very long thereafter. I slept at Robert Craig’s house every night while living in Philadelphia • excepting a few nights when I would be doing some work for a respectable family by the name of Bacon: I was at. home, dur
William John Craig, in behalf of plaintiff, testified (depositions filed October 1, 1897):
“I live at Catasauqua; I have lived here forty-four years. My first recollection of my existence as a child was at Summit Hill; I was between four and five years old at my first recollection; I lived at Summit Hill with my mother. She lived with her brother a while and also with a Mr. McLann. Lived there as near as I can remember until I was between six and seven years old; went from there to Northampton county, about five miles from here, I suppose; then went to Kreidersville post-office and stayed there till April, 1847; went from there
Cross-examination: “My-age is.sixty-five; when my mother left to reside in Philadelphia I was between six and seven. She went to Philadelphia about 1840 or 1841, to the best of my recollection. My recollection of my birth is 1835. I think the visit of James Craig to
Redirect examination: “She spoke of her marriage to her first husband frequently; and would say dif
Recross-Examination: “I think that my best recollection is that my father was in Philadelphia .and left, the money before my mother married Wilson.”
Margaret Ami Lathrop (deposition filed October 18,1897) testified:
Direct examination: “I am a sister of Sarah Craig. My father was Robert Craig.' He had brothers, James, John and William. James lived in St. Louis as long as I can remember, ever since he left Philadelphia. He came to my father’s house at the homestead down on the river front. Prom there he went to St. Louis and lived there up to the time of his death so far as I know. I kept up a correspondence with him I guess about two years after he left. That continued until 1858. My age is now sixty-three. I got married and went to live at Mauch Chunk and that is when the correspondence stopped. I have none of the letters. Had a letter from him about the time he was married. He wanted me to come to St. Louis on my wedding trip. I addressed my letters to St. Louis, I don’t remember the street. I remember his coming here from St. Louis after he had gone there. I can not just remember the occasion of his coming. I can not make up my mind whether it was the time he came out to take the money — some man had come
Cross-examination: “Mrs. Wilson lived in my father’s family up to the time of her marriage; I was not receiving letters from James Craig at that time; I was too young; it was known- that he lived in- St. Louis at the time of Mrs. Wilson’s'residence with my father. ’ ’
(Plaintiff admits that James Craig always lived in St. Louis from the time he left Philadelphia to the day of his death and never left the place.)
“I was a little girl at the time James Craig visited
Sarah Craig, a daughter of Eobert Craig, with whom plaintiff: lived from the time she came to America, up to the time of her marriage with Wilson, testifies in answer to Mr. Ottofy:
“Q. Do you know what business he has been in out at St. Louis ? A. The furniture business.
“Q. Was his residence ever known as any other place than St. Louis'? A. Not to iny knowledge, no, sir.’ ’
Again:
“Q. Do you know Anthony MacAlister? A. Yes, sir, he was my uncle.
“Q. Did you ever hear him speak of Mr. James
Plaintiff offered in evidence the will of James Craig, duly admitted to probate in the-probate court for the city of St. Louis, April 5,1897, in words and figures as follows:
“In the name of God Amen. I, the undersigned, James Craig, widower, of the city of St. Louis, do make, publish and declare the following to' be my last will and testament, hereby revoking and annulling all former wills and codicils by me made, subject to the payment of my just debts and the expenses of my funeral. I dispose of my entire estate in the following manner, to-wit:
“I give and bequeath the sum of one dollar and no more to my son, William John Craig.
“I give and bequeath my personal estate, share and share alike, to my two daughters, Mary Louise and Emma Craig.
“I give and devise my real estate wherever situated, in equal shares to my said two daughters, Mary Louise and Emma Craig, for and during their natural life. On the death of any one of them, I devise half of my said real estate absolutely to the child or children left by her; should, however, such daughter of mine die without leaving issue then all of my said real estate 'shall go to my surviving daughter for and during her natural life, and upon the death of such surviving daughter of mine to her child or children absolutely. Should further such surviving daughter of mine also die without leaving issue, then all my aforesaid real estate shall go in equal shares to my brothers and sisters or their legal representatives.
“The foregoing devise to my daughters shall be conditioned that they or their survivors shall annually expend $20 for keeping in order my burial lot in Calvary Cemetery, St. Louis, Missouri.
“James- Craig.”
Plaintiff’s counsel next offered in evidence the election of Margaret Wilson, alias Craig, widow of said James Craig, to take a child’s part in lieu of her dower, which was shown to be duly recorded in the recorder’s -office of the city of St. Louis, Missouri, May 14,1897, and in probate court of the city of St. Louis, May 26, 1897, .and which is as follows:
‘ ‘ In the probate court of the city of St. Louis, State of Missouri, in the matter of James Craig, deceased, No. 22951.
“State of Missouri, city of St. Louis — ss.
“Know all men by these presents, that I, Margaret Wilson, alias Craig, of the city of Catasauqua, county of Lehigh, State of Pennsylvania, the lawful widow of • James Craig, deceased, late of the city of St. Louis, Missouri, by whom I have but one child living, namely, William John Craig, do in lieu of dower of the one-third part of all lands whereof my said husband died, seized of an estate of inheritance, hereby elect to be endowed absolutely in a share of such lands equal to the share of said child of my said deceased husband, pursuant to sections ■4523 and 4524 of the Revised Statutes of the State of Missouri, hereby intending to elect to be endowed -absolutely in both the lands and personal estate of said deceased in a share equal to the share of a child of said •deceased, namely, net one-half of all of said estate.
“Mabgaret Wilson, alias Craig.
“State of Pennsylvania, county of Lehigh — ss.
‘ ‘ On this, 8th day of May, 1897, before me personally appeared Margaret Wilson, alias Craig, to me known to be the person described in and who executed
‘ ‘ Justice of the Peace. ’ ’
It is admitted between the parties that James Craig-died seized of an estate of inheritance in fee simple in the property described in the petition and that it is worth the sum of $22,000.
It is also admitted that there is a deed of trust on a part of this real estate as described in the petition.
This was substantially the testimony upon which this cause was submitted to the court. At least, it is a sufficient recitation of the testimony, upon the only controverted question in this cause, to intelligently discuss the errors complained of by the appellant.
The court made its finding upon the issues for the defendants and dismissed plaintiff’s petition and from this judgment the cause is by appeal presented tO' this court for determination.
This is an action on the part of plaintiffs for partition, and there is but one question to be determined in this controversy: Was the testimony introduced in this cause sufficient to bar the recovery by plaintiff, Mrs. Wilson, of her alleged interests in the lands of the deceased James Craig?
The defense to her right of action in this case is fully set forth in the answer of respondents, and is based upon the provisions of section 4532, Revised Statutes 1889, which provides: “If a wife voluntarily leave her husband and go away and continue with an adulterer, or, after being ravished, consent to the ravisher, she will be forever barred from having her jointure or dower, unless her husband be voluntarily reconciled to her, and suffer her to dwell with him. ’ ’
It will be observed that this statute was enacted for
The question, and the only question with which'we have to deal, in this case, is the application of the facts to the true spirit and meaning of this statute'. As to the construction of this statute, and the facts to be shown in order to fall within its provisions, we are of the opinion that the American courts are practically harmonious.
The terms of this statute, “If a wife voluntarily leave her husband and go away,” have been the subject, of much discussion by the courts of this State, as well as: other jurisdictions. We deduce the true rule, from the best-considered cases upon this subject, to be, that it is not necessary that there should be any special form adopted in the leaving and separation; but any separation, which is demonstrated by her acts and conduct to be voluntary, and which is not brought about by the acts of the husband, or by any restraint upon her person, fully meets the provision that she must voluntarily leave her husband.
The leading case in this State discussing the application of this statute in respect to the bar of the interest of the wife in the lands of her deceased husband, is the case of McAlister v. Novenger, 54 Mo. 251. It reviews all the authorities on the subject, and finally announces
The case of Payne v. Dotson, 81 Mo. 145, cited and earnestly relied upon by appellants, does not in any way conflict with the McAlister case, supra; it quotes ap-. provingly that case. It simply uses the terms of the statute, and announces that the separation and leaving of the wife must be her voluntary act. This is true; but these requirements of the statute need not necessarily be shown by any particular form of voluntarily taking leave of her husband; but if such requirements do not concur in form, but do in substance*, it is within the spirit and meaning of that statute.
This principle is clearly announced and conceded by one of the ablest jurists this nation ever produced. Chief Justice Marshall, in the case of Stegall v. Stegall, 2 Brock. 256, in speaking upon practically the same provisions as appear in our statute, says: ‘ ‘ The words of the act of - Assembly are: ‘ But if a wife willingly leave her husband, and go away and continue with her adulterer, she shall be barred forever of action to demand her dower, that she ought to have of her husband’s lands, if she be convicted thereupon, except,’ etc. [1
We taire it that the rule is well and correctly settled;, in this State as to the construction of the statute under ; discussion; it only remains to apply the facts as indicated by the testimony introduced in this cause.
The only controverted issue in this case is one of fact. It is needless to cite authorities upon the well-settled practice of this court, that, in-reviewing the action of the trial court upon its findings upon pure questions of fact, this court will defer to- the result of the findings of the trial court. [Taylor v. Crockett, 123 Mo. 300.]
We shall not undertake to- discuss -in detail the evidence as applicable to the only issue -in this cause. We have quoted, substantially* the evidence pertinent to this issue, as furnished by the statements oí counsel for -both 'appellants and respondents. In respect to- that testimony, we are of the opinion, after a careful consideration of it, that it is sufficient to support the finding of the trial court. - ' ■
It appears that-James- Craig and-the-present plain
The testimony of her son William John Craig as to the twenty dollars in money he obtained from his father, through his uncle Bobert Craig; the incident of James Craig visiting Philadelphia and giving the daughter of Bobert Craig a gold pencil and twenty-five dollars in money; together with the correspondence between the family of Bobert Craig and James Craig, with the other
She says that her marriage to Wilson (which was adulterous by reason of having a legal husband living), was occasioned by Robert Craig telling her that James was dead; and then follows that unreasonable statement, that Robert afterwards told her he meant that James was dead as to her. The court was not bound to believe this statement in view of all the other testimony indicating that she never expected to become reconciled to her lawful husband. Prom the time of the receipt of the second letter from her husband, it is apparent that she was then determined never to live with him, and was simply awaiting for the happening of the conditions which her advisers had impressed her would release her before Grod and man. We are unable to reach any other conclusion than that if she had been possessed of that high conception of the marital relations all good wives should have, she would have been living with James 'Craig at the time of his death.
It must be remembered that the domicile of the husband should be the domicile of the wife. James Craig had requested her to accompany him to America. After her arrival, conceding that James Craig’s conduct was not in every respect proper, yet she knew his residence, and if she expected to share in his accumulations, his residence should have been made hers. In the case of Messenger v. Messenger, 56 Mo. 329, the court very appropriately refers to the duty of the wife. Judge Napton, speaking for the court, says: “We have supposed it was the duty of the wife to live with her husband and abide by his fortunes in sickness and health, in poverty and riches, to make his will her law, where it is not in conflict with the law of Grod. . . . The question is one of desertion, and we hold that the wife is ■ bound to follow the fortunes of her husband', and to live where he chooses to live, and in the style and manner
The trial court had the right to analyze the testimony submitted to it in this cause, it was the trier of the facts, and in determining the weight to be attached to such testimony, to take into consideration the reasonable probability of its truth.
The findings of the court were for the defendants, ■and if the testimony reasonably supports those findings, it would not be in harmony with the purposes of the statute herein discussed, to permit plaintiff, Mrs. Wilson-Craig, after a voluntary separation from James Craig, for more than sixty years, and part of the time living in adultery with Thomas Wilson, having nothing to do with the ¡accumulation of the property sought to be partitioned, to recover an interest in such property.
Entertaining the views as herein expressed, the judgment of the trial court will be affirmed.