Tillman v. Estate of Tillman , 50 Mo. 40 ( 1872 )

Bliss, Judge,

delivered the opinion of the court.

The plaintiff presented a claim against the estate of her deceased husband which was disallowed in the Probate Court, and on appeal was again disallowed in the Circuit Court. It was based upon the fact that during the coverture certain of her real estate was sold and conveyed by herself and husband, and the proceeds of the sale having been collected by the husband, she presents a demand against his estate fox their amount. The case was tried in the Circuit Court upon the following agreed statement of facts: “At the time of her marriage with her late husband, Charles Tillman, she owned in her own right several tracts of land situate in Illinois and Missouri. These lands during her coverture were sold by different parties, partly for cash and partly on a credit, and she and her husband joined in the execution of the conveyances to the purchasers. To secure the payment of the deferred payment of these sales, deeds of trust were executed by the purchasers, and Charles Tillman was described as the cestui que trust in the several deeds of trust. As the several deferred payments became due they were collected by Charles Tillman, and he entered in his own handwriting in his books of account the several amounts so collected as the proceeds of said lands, and both the several amounts and the time the same were paid are stated as aforesaid in his books. The annexed account shows the several amounts so paid, and the date of the payment of each. Charles Tillman was a merchant at the time of his marriage with claimant, and so continued to the time of his death. Administration was taken on the estate June 26, 1865,” etc.

The land sold belonged to the wife, but was not her sole and separate property. Had it been so held by her, the husband might be treated as her agent in the collection of the proceeds, and they would still belong to her unless it could be shown that she intended to give them to him. Rut when land is held by the wife simply as her own, and in which the husband has marital rights, if she join in the sale and the proceeds are collected by him in his own name, used as he uses his other funds — there being no contract or understanding with the wife in regard to them — they are reduced to possession, are appropriated by him, and by her presumed consent. The only thing relied upon to show the intention to hold the money for her use, is the fact that in entering the receipts upon the books of account it was shown that they were proceeds of her land. There was no investment in her name, no charge to himself and credit to her, and there is no evidence whatever that he intended or she desired him to hold the amounts collected to her separate use. He was himself wealthy, and there was no special inducement in her to look after these comparatively small sums. They might easily have been secured to her, she might have made it a condition to parting with the land; but nothing being done in this direction, the proceeds of the sale became part of the husband’s estate, in which she has a large interest as wife, but none as creditor.

In Tennison v. Tennison, 46 Mo. 83, to which counsel refer, there was an express contract to reinvest certain property of the wife to her separate use; and having fraudulently taken a title to himself, the husband was properly required to hold it as her trustee. There is nothing in the present case like that, and the other authorities cited refer to a different state of facts.

The other judges concurring,

the judgment will be affirmed.