Upon the death of his wife, although through his felonious act, no new or additional estate was acquired by Holland by way of survivorship or inheritance. Otto F. Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67; Schwind v. O'Halloran, 346 Mo. 486, 142 S.W.2d 55; Wilson v. Frost, 186 Mo. 311, 85 S.W. 375; Garner v. Jones, 52 Mo. 68; Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72; Ahmann v. Kemper, 342 Mo. 944, 119 S.W.2d 256. (2) The provisions of the constitution and statutes of this state prohibit the enforcement of a forfeiture of any estate for conviction of a crime. Sec. 13, Art. II, Constitution of Missouri of 1875; Sec. 30, Art. I, Constitution of Missouri of 1945; Sec. 4858, R.S. 1939. (3) Courts of equity, equally with courts of law, are bound by, and obliged to give effect to, the positive provisions of the constitution and statutes and are no more privileged to disregard the provisions of the basic laws than are courts of law. 19 Am. Jur. 55; Hedges v. Dixon County, 150 U.S. 182, 37 L.Ed. 1044, 14 S.Ct. 71; Stevens v. De La Vaulx, 166 Mo. 20, 65 S.W. 1003. (4) The criminal act of one spouse in murdering the other, in the light of the foregoing provisions of the constitution and statutes, affords the court no ground for declaring and enforcing a forfeiture of any part of the vested estate of the guilty party in lands held by the entirety.
They had unity of interest, unity of title, unity of time and unity of possession and was not subject to testamentary disposition. Ahmann v. Kemper, 119 S.W.2d 256; Schwind v. O'Halloran, 142 S.W.2d 55. (10) The judgment must be based on and supported by and must follow the petition. The prayer of the petition generally is no part of the petition.
Plaintiffs say "the main question involved in the case at bar is whether the direct conveyance from Martin Kluck, Sr., to himself and Josephine C. Kluck created a tenancy by the entirety or any interest in the land in himself and Josephine C. Kluck." Plaintiffs contend that "an estate by the entirety at common law and in Missouri involves the unities of time, title, interest and possession, as well as the husband and wife unity of ownership," citing Ahmann v. Kemper et al., 342 Mo. 944, 119 S.W.2d 256; Stifel's Union Brewing Company v. Saxy, 273 Mo. 159, 201 S.W. 67, L.R.A. 1918C, 1009; Greene v. Spitzer et al., 343 Mo. 751, 123 S.W.2d 57; Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229; Murawski v. Murawski, 240 Mo.App. 533, 209 S.W.2d 262. Plaintiffs argue that the unities of time and title are not present when "the interest of the husband was created by one deed (from his grantor), and the interest of the wife was created by another and later deed — from her husband," citing Re Estate of Walker, 340 Pa. 13, 16 A.2d 28, 132 A.L.R. 628; Pegg v. Pegg, 165 Mich. 228, 130 N.W. 617, 33 L.R.A., N.S., 166, and other cases found in annotations 132 A.L.R. 630 and 62 A.L.R. 514. Therefore, plaintiffs claim "that a conveyance by one spouse to himself or herself and the other spouse cannot create an estate by the entireties."
Laws, 1943, p. 353, Sec. 86 (Pocket Parts, 3 Mo. St. Anno. 1939, p. 36, Sec. 847.86). (5) The action of the chancellor in excluding the evidence of confidential conversations between appellant and respondent (husband and wife) was proper. In re Ozia's Estate, 29 345 S.W.2d 240; Grott v. Grott, 249 S.W. 55; Kistner v. Kistner, 89 S.W.2d 106; O'Neil v. O'Neil, 264 S.W. 61; McPheeters v. McPheeters, 227 S.W. 872; Allen v. Allen, 60 S.W.2d 808. (6) The part of the property involved in this suit that is owned by appellant and respondent as tenants by the entirety could not be partitioned and no accounting as to same could be had, since neither has any interest separate and apart from the other, but both own the entire interest or title. Ahmans v. Kemper, 119 S.W.2d 256; A.J. Meyer Co. v. Schulto, 189 S.W.2d 183; Plumbing Supply Co. v. Taylor, 237 S.W. 900; Otto F. Stifel's Union Brewing Co. v. Saxy, 201 S.W. 67, 273 Mo. 159; Bank v. Fry, 68 S.W. 348, 168 Mo. 492. (7) Personal property acquired in the name of husband and wife, as such, is also held by them as tenants by the entirety. Simon v. St. Louis Union Trust Co., 139 S.W.2d 1002, 346 Mo. 146; Bank v. Fry, 168 Mo. 492; Lomax v. Cramer, 216 S.W. 575, 202 Mo. App. 365; Ryan v. Ford, 151 Mo. App. 689, 132 S.W. 610.
In determining the issue presented, we must keep in mind that homestead statutes have uniformly been construed with great liberality by the courts in order that the expressed purpose and intent of the legislature be carried into effect. Ahmann v. Kemper, 342 Mo. 944, 119 S.W.2d 256, 258; Balance v. Gordon, 247 Mo. 119, 124, 152 S.W. 358; Sharp v. Stewart, 185 Mo. 518, 529, 84 S.W. 963; Regan v. Ensley, 283 Mo. 297, 222 S.W. 773, 774. The case of Sharp v. Stewart, supra, involved an appeal from an order of the trial court sustaining a motion to set aside a sale of real estate made under an alias execution, because the sheriff had failed to allow and set aside homestead to respondents (husband and wife).
R.A. Pearson for appellants. (1) The wife has the right of homestead exemption in her own land when the husband asserts none for the protection of his property, and no claim is necessary. Sec. 2998, R.S. 1929; Sharp v. Stewart, 185 Mo. 518; State v. Oberheide, 39 S.W.2d 397; Ahman v. Kemper, 119 S.W.2d 256; 29 C.J., 969; Tapley v. Ogle, 162 Mo. 197. (2) Nor is a temporary removal caused by necessity, with intention of returning when circumstances permit, an abandonment of the homestead. There is a presumption the right continues.
It was exempt from execution and he had the right to convey it irrespective of his debts to plaintiffs. R.S. 1929, sec. 608; State ex rel. v. Mason, 88 Mo. 222; Barton v. Walker, 165 Mo. 25; Burton v. Look, 162 Mo. 502; Armor v. Lewis, 252 Mo. 583; Ahman v. Kemper, 119 S.W.2d 256. J. Grant Frye for respondents.
La Font v. Home Insurance Co., 193 Mo.App. 543, 182 S.W. 1029 (1916) is not applicable. It is established that tenants by the entirety do not hold undivided interests, "but both are seized of the entirety, per tout, et non per my." Ahmann v. Kemper, 342 Mo. 944, 119 S.W.2d 256, 257 (1938). Also see Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395 (1947).
Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081; Cullum v. Rice, 236 Mo. App. 1113, 162 S.W.2d 342; Schwind v. O'Halloran, 346 Mo. 486, 142 S.W.2d 55; Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72. Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395, 398; Ahmann v. Kemper, 342 Mo. 944, 119 S.W.2d 256; Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229. Blum v. Frost, 234 Mo.App. 695, 116 S.W.2d 541, 546; People's State Savings Bank v. Missouri, K. T. Ry. Co., 158 Mo.App. 519, 138 S.W. 915, 917.
The only change by death is in the person, not the estate. Ahmann v. Kemper, 342 Mo. 944, 948, 119 S.W.2d 256. To like effect is Stewart v. Shelton, 201 S.W.2d 395. While estates in entirety originated in the common law and were therefore in harmony with the ancient theory that the husband and wife were one, yet, such estates did not arise as a necessity from that theory, and our courts have held that our modern Married Woman's statutes do not abolish or alter the character of such estates.