Brandon v. Dawson

Ellison, J. The law in cases of the nature of the one under discussion is well settled, and the only difficulty we have encountered has been in regard to the application of the facts as developed in the evidence. The law is that, notwithstanding the wife has, by force of the statute, dower in the personal property of the husband, such property must have been the husband’s at his death. He has an absolute and unrestricted right to dispose of it at any time during his lifetime by gift or otherwise, provided such disposition is not testamentary in character and made with a view of defeating the wife’s claim therein after the husband’s death. Crecelius v. Horst, 89 Mo. 356. It must be testamentary in character, by which I understand it must be intended to have its operative effect after the death of the donor. As if, for instance, it should be given to the donee by deed or other instrument with the use thereof reserved to the donor during his life. Or, if it should be given in view of impending death, the gift must also be made with a purpose of depriving the wife of her dower. For the circumstances surrounding, and, perhaps, controlling, a gift in view of impending [243] dissolution, may show no effort or disposition to defraud the wife. Whether merely showing a gift causa mortis,without more, would make a case of fraud against the wife’s dower right, need not be decided in this case. As to the facts of the case before us: Conceding that, when the deceased handed the pocket book containing the notes in controversy to Dawson (while in good health several months prior to his death), Dawson handed them back and refused to accept them, as contended by counsel for the widow, the act on the part of the deceased, nevertheless, at least goes to show that deceased was not looking upon his gift as in its nature testamentary. So on another occasion in the fall prior to his death while in good health, deceased, just before starting to Kansas, handed to defendant Brandon the key to his desk containing the pocket book and notes, saying, “There is a package in my desk for you and William.” But this concession need not be made; the gift was complete when deceased handed the pocket book and notes to Dawson, the notes indorsed and the pocket book wrapped in a paper on which was written, “Eor W. H. Dawson and J. N. Brandon.” It is evident from the whole testimony that, when defendant Dawson stated, “But I gave it back to him and told him that I would get it at some other time; I did not aceept it at that time,” he did not mean that he at that time refused or rejected the gift; but merely that he would not take the package away at that time. The circumstances, when considered in the light of the other testimony, show a gift completed by delivery at that time, and a return of the package for keeping until some other time. We have not overlooked the fact that there is evidence in the cause tending to sustain plaintiff’s theory [244] that the object of the gift was to defraud plaintiff of her dower. But it is not of such persuasive character as to justify us in overturning the finding of the chancellor, and we would not do so but for the following further consideration. II. The widow was offered as a witness in her own behalf, objection was made and sustained on the ground, as stated in the objection, of a marriage contract between her and her deceased husband, which purported to be an agreement between the parties, whereby each agreed to have and make no claim against the property of the one who should die first. This contract is void, so far as it may be sought by it to deprive plaintiff of her dower interest (Mouser v. Mouser, 87 Mo. 437; Farris v. Coleman, 103 Mo. 352), there being no provision for the wife for her. life after the death of the husband. The objection to the testimony, therefore, as made was not sound. But, if for any other reason, plaintiff was wholly disqualified as a witness, we would uphold the action of the trial court. We are of the opinion she is not so disqualified. She is not disqualified under section 8918, Revised Statutes, 1889, on the ground of the adverse party being dead, for the reason that, though she is seeking property which belonged to the deceased husband, he cannot be regarded as an adverse party. The property belongs to the distributees of the estate as the law may direct. The contending parties are alive. The points decided in Hoyt v. Davis, 30 Mo. App. 309, and Spradling v. Conway, 51 Mo. 51, are applicable to the question here discussed. She is, however, partially disqualified under section 8922. She should not be permitted under this section to testify to any admissions or conversation of her husband, or to any conversation of another with her husband, or any act done by the other in connection* with such conversation, which might be explained by it. [245] Holman v. Bachus, 73 Mo. 49; Waddle v. McWilliams, 21 Mo. App. 298. But, as before stated, she has been excluded here as incompetent for any purpose, and for this we will reverse the judgment. Eor we cannot say, of course, but that she may give testimony which may properly come from her, which would turn the scale with the trial court in considering the facts. The judgment is, therefore, reversed, and the cause remanded. All concur.