151 Mo. 61 | Mo. | 1899
This is an appeal from a judgment of the circuit court of Clinton county, allowing a demand for $7,814.53 in favor of the plaintiff, Julia A. Winn, widow of J ames N. Winn, deceased, against his estate, on appeal from the probate court of said county.
The demand allowed is as follows:
“The estate of James N. Winn deceased,
To Julia A. Winn, Dr.
“To cash received by deceased at the. times and in the sums following, the same being the separate estate of plaintiff, to wit:
May 15, 1875, to cash.................................... $200 00
May 15, 1875, to cash.................................... 400 00
Reb. 28, 1877, to cash paid in part satisfaction of note owing by deceased to George P. Dorris, at request of deceased.... 1,000 00
March 1, 1878, to cash on said note at of deceased. 830 00
March 1, 1879, to cash paid on said note at of deceased. 830 00
July, 1881, to cash....................................... 500 00
May, 1883, to cash ...................................... 00
April 9, 1888, to cash and land converted into cash deceased. 1,919 53
May 1, 1894, to cash ..................................... 1,000 00
Total debit .........................................$8,179 53
Same, Or.
May 15, 1875, by furniture................................ 200 00
May 1, 1894, by carriage................................. 165 00
Total credit ........................................ 365 00
Balance due plaintiff................................$7,814 53
The evidence tended to prove, and under proper instructions, the jury found, that the several items of money charged in the demand were given to the said Julia A. Winn at the
The several objections urged to the judgment may be answered without setting them out specifically.
The Married Woman’s Act of 1875 went into effect on the twenty-fourth of March, 1875 (Laws 1875, p. 61). The plaintiff and the deceased were married prior to- that date. Prior to the passage of this act, the husband, by the marriage, acquired title to the personal property of the wife in possession, and the right to reduce to his possession for his own use and benefit her choses in action. In Hart v. Leete, 104 Mo. 315, it was held that the right of the husband to SO' reduce his wife’s choses in action into his possession was not a vested right and that the act of 1875 applied to all cases where the husband had not theretofore possessed^ himself of his wife’s personal property. In the subsequent case of Leete v. State Bank of St. Louis, 115 Mo. 184, this ruling was disapproved, and it was therein held that.the husband’s right to acquire title for himself to the wife’s property by reducing it to his possession was a vested right of which the Act of 1875 could not and did not deprive him. Consequently that as to such right acquired by a marriage prior to its passage that Act did not apply. In the able and exhaustive opinion of Sherwoob, J., delivered in that case, the language of Edwards, J., in Westervelt v. Gregg, 12 N. Y. 202, is quoted with approval, aptly and tersely stating the principle.as follows: “A right to reduce a chose in action to possession is one thing, and a right to the property which is the result of the process by which the chose in action has been reduced to possession, is another and a different thing. But they are both equally vested rights. The one is a vested right to obtain the thing, with the certainty of obtaining it by resorting to the necessary
Under this statute the husband had no power to appropriate these gifts to Ms own use without her consent in writing. [Jones v. Elkins, 143 Mo. 647 ; Alkire Grocer Co. v. Ballenger, 137 Mo. 369 ; Bank v. Winn, 132 Mo. 80 ; Hoffmann v. Hoffmann’s Exec., 126 Mo. 486 ; McGuire v. Allen, 108 Mo. 403 ; Gilliland v. Gilliland, 96 Mo. 522 ; Broughton v Brand, 94 Mo. 169]. No such consent was shown, or given, and the money which came by these gifts of her father to the plaintiff, was her separate property, was not transferred to her husband by his use thereof, and was a trust fund in his hands for her benefit while in his use and possession. [Alkire Grocer Co.
As to suck fund sire could treat ber busband either as a trustee or simply as a debtor. [Hoffmann v. Hoffmann’s Exec., supra; Bank v. Winn, supra; Alkire Grocer Co. v. Ballenger, supra]. By electing to treat bim as a debtor, tbe indebtedness although growing out of this trust relationship, became a money demand against bis estate over which the probate court had jurisdiction. [Hoffmann v. Hoffmann’s Exec., supra; Church v. Church, 73 Mo. 421; Todd v. Terry, 26 Mo. App. 598]. There is no place in this case for the application of any of the statutes of limitation. The judgment of the circuit court is affirmed.
