Messenbaugh v. Goll , 198 Mo. App. 698 ( 1918 )

ELLISON, P. J.

This action is replevin whereby plaintiff seeks to recover possession of a promissory note. The case was tried by the court without the aid. of a jury and judgment rendered for plaintiff.

It appears that Prances Pilkington was married to James Cullen in the year 1900. Before her marriage she owned a tract of real estate. That several years after her marriage she sold the land, her husband joining in the deed, to one John G-oll and in part payment took his note, secured by deed of trust on the land, for $6500, payable in five years “to the order of Prances D. Cullen and James Cullen, share and share alike with interest, at the rate,” etc. Afterward, in December, 1915, Prances died childless, without a will and in the following month James, her husband, ■ died. Plaintiff was appointed administrator of Prances ’ estate. Defendant was appointed administrator.of James’ estate, and as such took possession of the note in question as the property of James’ estate and this action by plaintiff as administrator of the wife’s estate followed.

Defendant’s grounds of defense may be said to be three fold: First, that Frances and James had an estate by the entirety in the note. Second, if an estate by the entirety was not created, then each had an undivided half interest therein. Third, if neither of these contentions is correct, James had an interest by inheritance as statutory heir of his wife and distributee of her estate.

We are satisfied that by the provision of the note itself an estate by the entirety did not exist in the note. An entirety is all and an estate by the entirety is where ■both the husband and wife own all the estate. They hold per tout et non per mi. Each' has an ownership in the whole. [Craig v. Bradley, 153 Mo. App. 586, 592.] The whole estate vests in both as one person, and when one dies the entire estate remains in the survivor. [Gibson v. Zimmerman, 12 Mo. 385; Craig v. Bradley, 153 Mo. App. 385, 597.] So when Frances and James had themselves designated as payees in the note “share and share alike,” they attempted to create an interest in it which we designated in Craig v. Bradley, supra, as the antithesis of entirety. Defendant has called our attention to the recent case in the Supreme Court of Haguewood v. Britain, 199 S. W. 950. We find it to be totally different on the facts from this case and wholly without application.

Nor do we think that James became entitled to one-h'alf interest in the note. Although the expression “share and alike” showed an intention in the mind of both, that each should have an undivided half interest in it, yet the statute, in terms, prevents the husband acquiring that interest. The note represents part of the purchase money of the wife’s separate real property (Sec. 8309, R. S. 1909), and the title to such note or any part of it, can only be vested in the husband in the manner directed by statute, viz., by giving her “express assent in writing” with “full authority” to him “to sell, incumber or otherwise dispose of same for his own use and benefit.” [Section 8309, R. S. 1909.] When Frances had the note executed to James for one-half interest therein, it. was merely in effect, a verbal gift to bim of such interest, and was in the face of the statute which we have just noticed. The Supreme. Court has held that a blank endorsement of a note by his wife and delivery to the husband did not constitute the assent required by statute. [McGuire v. Allen, 108 Mo. 403.] It’ was held by that Court, that such endorsement and delivery was not the “express assent in writing” required by the statute. [Hurt v. Cook, 151 Mo. 416, 426-431; Case v. Espenschied, 169 Mo. 215.] And so we have held. [Moeckel v. Heim, 46 Mo. App. 340: Company v. Crowley, 167 Mo. App. 414, 417.]

Taking up defendant’s last theory of defense, we find that the husband by the death of his wife without children became her statutory heir to one-half of her entire personal estate (Sec. 350, R. S. 1909). Whether this note, or a part of it, would fall to his share of such entire estate, as such heir, will depend upon partition or division and distribution in the probate court. The legal title to the personal estate which she had at her death is in her administrator (Becraft v. Lewis, 41 Mo. App. 546, 552; State ex rel. v. Moore, 18 Mo. App. 406), and after due proceeding in the probate court as directed by statute, if not taken for debts, it would be distributed and the husband’s part set off to his administrator. Until that time it rightfully should be in the possession of the administrator of her estate. Finding ourselves in accord with the circuit court, we affirm the judgment.

All concur.