Glaves v. Wood , 87 Mo. App. 92 ( 1901 )

BLAND, P. J.

The appeal is from an order of the circuit court sustaining a motion for a new trial. The object of the petition seems to be to compel the appellant to discover and account for notes and money which it is alleged, he has in his possession that belonged to the estate of his deceased wife, of whose estate the respondent is the administrator. The evidence is that appellant and his deceased wife were married in the year 1875, but prior to the taking effect of the Married Woman’s Act of March 25, 1875. At the date of the marriage, the wife owned a fee simple title to the undivided two-thirds of some real estate situated in Lewis county, Missouri. Erom the sale of this land, after the marriage, • she realized $1,950. She also held, at the date of the marriage, a promissory note for $300, which was paid to her after the marriage. She also received after the marriage, $150 as a distributee of an estate. It substantially appears that her moneys were loaned out from time to time by her and her husband, at interest, and notes taken therefor, payable to the wife, and that the moneys and notes of the wife and husband were kept separate. She died intestate in 1894. The plaintiff introduced evidence tending to prove that prior to the death of the wife she, by written indorsement on the back thereof, duly assigned and transferred all of her notes to her husband. The sufficiency of this assignment to transfer the notes to her husband and make them his, is the question presented for decision.

The marriage having taken place prior to the taking effect of the Married Woman’s Act of March 25, 1875, the right of the husband to the personal property and choses in action of his wife at the time of the marriage is not affected by that act. Winn v. Riley, 151 Mo. 61; Hurt v. Cook, 151 Mo. 416; Leet v. State Bank, 141 Mo. 584. But money and choses in action acquired by her after the passage of the act, are protected by it, and could not be acquired by the husband in any other manner than that pointed out by the act. Winn v. Riley, and Hurt v. Cook, supra.

The evidence tends to show that Wood did take possession of his wife’s personal property by taking charge of it and moving it to his place of residence. The note of $300 which she had at the time of the marriage was collected after the marriage and paid over to her, and thereafter used with her other moneys in making loans, and so far as the evidence discloses, the husband did not reduce this note or its proceeds to his possession, unless it is included in notes transferred to him by his wife. The proceeds of the note, with other moneys acquired by her after the marriage, as the evidence tends to show, were treated by both himself and his wife as her separate property and were loaned out at interest, and notes taken therefor, .payable to the wife, and there is nothing in the evidence by which the money from the $300 nóte can be distinguished or separated from the other moneys acquired after the marriage. So that the husband’s right to the possession'of this particular fund, as well as his right to the possession of the other moneys of his wife, is controlled by the Act of 1815 (now section 4310, Revised Statutes 1899). Hurt v. Cook, supra. To entitle him to retain the notes, payable to his wife, he must be able to adduce the written assent of his wife to him to take and dispose of the notes as he may choose, and in respect to any money she may have had on hand at the time of her death, the same rule applies.

In Hurt v. Cook, supra, it was held that a wife can not transfer to her husband a note payable to her individually by a mere blank indorsement of her name thereon. In the case in hand the evidence tends to prove that the wife by written indorsement on the notes payable to her, assigned and transferred them to Wood, her husband. In the Hurt case, to make the transfer effectual, it had to be inferred that that was the purpose of the blank indorsement and that such an inference could not be drawn when the statute required the intention to be expressed in writing. But where, as in this case, as the evidence tends to show, there was a full transfer and assignment of thé notes, ther'e is nothing left to inference. On the contrary, the purpose and intention of the wife to give full possession and dominion over the notes to her husband, -is evidenced by the writing on the notes, and fills the requirements of the statute.

The cause was tried before Judge Turner, who gave judgment for the defendant. Pending a motion for new trial, Judge Turner died. Judge McKee, his successor, sustained the motion and granted a new trial, but failed, as the practice act requires should be done, to assign any reason for sustaining the motion. The appeal is from the order granting a new trial.

Both the petition and,,.evidence are hazy. The petition seems to be a bill in equity for the discovery of assets of the estate of Mrs. Wood- — alleged to be in the possession of Wood — but they are not set out or described with any degree of particularity, and it is difficult to discover just what the plaintiff is fishing for. A bill of discovery is not known in our system of jurisprudence. The only method of discovering concealed assets of the estate of a decedent, is the one prescribed by sections 75, 76, 77, Revised Statutes 1899. It may be that the plaintiff can amend his bill so as to conform to the rules of good pleading and on a new trial produce evidence to entitle him to affirmative relief. The learned trial judge, by granting the new trial, afforded him this opportunity. This was discretionary with the trial judge and we will not interfere with that discretion. The judgment is affirmed.

All concur.