Opinion
No. 41590.
September 11, 1950.
A deed from a betrothed grantor to his children by a former wife was in fraud of the marital rights of the prospective wife and was properly set aside as to such rights. The statute of limitation did not commence to run against the wife until after her husband's death. But the deed should not have been set aside in toto, and the decree of the trial court should be modified accordingly.
1. DEEDS: Presumption of Delivery Not Overcome. Although the deed of the deceased grantor was not recorded until four years after its date, the presumption in favor of delivery was not overcome.
2. DEEDS: Gifts: Deed to Children Valid as Gift. A deed to children in consideration of love and affection is valid as a gift.
3. HUSBAND AND WIFE: Confidential Relation Upon Betrothal. A confidential relationship arises upon betrothal.
4. HUSBAND AND WIFE: Deeds: Conveyance to Children Prior to Marriage: Burden of Proof on Grantees. Where parties are betrothed and the prospective husband conveys to his children, the burden of sustaining the transfer is shifted to the grantor husband and his representatives.
5. HUSBAND AND WIFE: Deeds: Conveyance in Fraud of Marital Rights. The deed from the betrothed grantor to his children was without consideration to his prospective wife and was in fraud of her marital rights.
6. HUSBAND AND WIFE: Deeds: Limitations of Actions: Deed in Fraud of Marital Rights: Widow Not Barred by Limitation. An action to set aside a deed in fraud of marital rights executed more than thirty years before was not barred where the widow filed her action less than ten years after the death of her husband.
7. HUSBAND AND WIFE: Deeds: Cancellation of Instruments: Equity: Deed in Fraud of Marital Rights: Afterborn Children Not Entitled to Recover. While the deed must be set aside insofar as it affects the marital rights of the widow, it will not be set aside in toto, as the grantor did not intend to include his afterborn children. And it would not be equitable to cancel the deed in toto when a mortgage debt has been paid, improvements have been made, one of the grantees has purchased the interests of several other grantees, and no attack was made for more than thirty years.
Appeal from Benton Circuit Court; Hon. Dewey P. Thatch, Judge.
REVERSED AND REMANDED ( with directions).
Vernon Frieze and John T. Martin for appellants ; Martin, Salveter Gibson of counsel.
(1) The deed in question was not invalid as a conveyance for want of consideration. An expressed consideration of "love and affection" is a sufficient consideration to support a conveyance of real estate, made by a father to his children. Clark v. Skinner, 334 Mo. 1190, 70 S.W.2d 1094; Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461. (2) Where a deed to real estate is made and intended as a gift, it is not necessary that it be supported by a valuable consideration. Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308. (3) The deed was produced at the trial from the possession of the appealing defendants, named as grantees therein. Possession of a deed by the grantee raises a presumption that the deed was duly delivered. Zumwalt v. Forbis, 349 Mo. 752, 163 S.W.2d 574; Klatt v. Wolff, 173 S.W.2d 933; Koewing v. Greene County Bldg. Loan Assn., 327 Mo. 680, 38 S.W.2d 40. (4) In the absence of evidence to the contrary, it is presumed that a deed was duly delivered on the date it was executed. 26 C.J.S. 595, sec. 185; Jefferson County Lumber Co. v. Robinson, 121 S.W.2d 209; Gerardi v. Christie, 148 Mo. App. 75, 127 S.W. 635. (5) Those plaintiffs who are children of the second marriage of Henry B. Breshears have no standing in this suit as there is no legal or equitable ground upon which they, as heirs, can contest the conveyance made by their father to his children by his first marriage. A conveyance is valid between the parties and their privies, although subject to attack by a creditor as a fraudulent conveyance. Stierlin v. Teschemacher, 333 Mo. 1208, 64 S.W.2d 647; Price v. Morrison, 236 S.W. 297; Raney v. Home Ins. Co., 213 Mo. App. 1, 246 S.W. 57. (6) Where one makes an irrevocable disposition of his property for the benefit of existing children, a court of equity can not, either at his instance or the instance of afterborn children, disturb the vested rights thus acquired in order to let in such afterborn children. Bobb v. Bobb, 7 Mo. App. 501. (7) The evidence in this record does not support the trial court's finding that the antenuptial deed in controversy was a fraudulent conveyance as to the intended wife, the plaintiff Ida Breshears. One seeking to avoid a conveyance as fraudulent has the burden of proving fraud as charged. Ulrich v. Pierce, 233 S.W. 401; Farmers Merchants Bank of Festus v. Funk, 338 Mo. 508, 92 S.W.2d 587; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297. (8) An antenuptial conveyance of real estate by a prospective husband to his children by a former marriage is not a fraudulent conveyance as to his intended wife if such conveyance be made with her knowledge or consent. Hach v. Rollins, 158 Mo. 182, 59 S.W. 232; Bell v. Dufur, 142 Iowa 701, 121 N.W. 500; Clark v. Clark, 183 Ill. 448, 56 N.E. 82; Daniher v. Daniher, 201 Ill. 489, 66 N.E. 239; 41 C.J.S. 420, Note 74; 26 Am. Jur. 813. (9) It was encumbent upon the plaintiff Ida Breshears, as an essential element of her case, to prove that the deed in controversy was made without her knowledge or consent. Bell v. Dufur, 142 Iowa 701, 121 N.W. 500; Hach v. Rollins, 158 Mo. 182, 59 S.W. 232. (10) The alleged cause of action of Ida Breshears is barred by limitations. A woman betrothed stands in the position of a future creditor of her intended husband and, as such a creditor, comes within the protection of the statutes relating to fraudulent conveyances in respect to antenuptial conveyances fraudulently made by her husband to defeat her marital rights. It is under such statutes that she must seek relief against an allegedly fraudulent conveyance of such character. Hach v. Rollins, 158 Mo. 182, 59 S.W. 232; Donaldson v. Donaldson, 249 Mo. 228, 155 S.W. 791; Sec. 3507, R.S. 1939. (11). A suit under the statute (Sec. 3507) to set aside an allegedly fraudulent conveyance must be instituted within the applicable limitation period prescribed by law. Hughes v. Littrell, 75 Mo. 573; Gibson v. Ransdell, 188 S.W.2d 35; Coleman v. Alderman, 357 Mo. 758, 210 S.W.2d 994. (12) The cause of action is regarded as accruing to the complaining creditor upon the date such creditor receives actual notice thereof or upon the date the deed is recorded, whichever first occurs. Hughes v. Littrell, 75 Mo. 573; Gibson v. Ransdell, 188 S.W.2d 35. (13) Inchoate dower, as well as other prospective interests accruing to a wife in her husband's property by virtue of the marriage, though contingent and uncertain, possess elements of property, and she may maintain an action for their protection, even against her husband, if their destruction be attempted by fraudulent alienation. Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149. (14) The plaintiff Ida Breshears having delayed the institution of this suit until October 21, 1948, her alleged cause of action is barred by limitations under the provisions of Sec. 1005, R.S. 1939. Sec. 1005, R.S. 1939; Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149. (15) The defendant George T. Breshears occupies the position of an innocent purchaser for value, without notice of the present claims of fraud, as to the several undivided interests acquired by him by purchase, aggregating an undivided 9/14 interest in all, and such interests so acquired can not be affected by the claim now made of fraud in the prior conveyance. The title acquired by a bona fide purchaser for value from a grantee under a fraudulent conveyance is not affected by any fraud which may inhere in such prior conveyance. Sec. 3512, R.S. 1939; Gehlert v. Smiley, 114 S.W.2d 1029; Gordon v. Ritenour, 87 Mo. 54; Craig v. Zimmerman, 87 Mo. 475; Lionberger v. Baker, 88 Mo. 447. (16) Even though the view be taken that plaintiff Ida Breshears is entitled to avoid the deed in question as a fraudulent conveyance, the trial court is in error in decreeing such deed a nullity in toto and that the real estate is to be treated as becoming a part of the estate of Henry B. Breshears, subject to the payment of debts and probate costs and the claims of all heirs. Stierlin v. Teschemacher, 333 Mo. 1208, 64 S.W.2d 647. Bullock v. Peoples Bank of Holcomb, 351 Mo. 587, 173 S.W.2d 753.
F.M. Brady and Edwin F. Brady for respondents.
(1) Conveyance of land in consideration of love and affection is fraudulent per se as against the grantor's existing creditors. Snyder v. Free, 21 S.W. 847, 114 Mo. 360. (2) A transfer by a debtor of all his property without consideration therefor is a fraud on his creditors and is void as to them. Blattell v. Stallings, 142 S.W.2d 9, 346 Mo. 45; Brown v. Oehler, 192 S.W.2d 515. (3) It is the rule in this state that a conveyance by a husband of his real estate, made for the purpose of defeating his wife's dower in the property conveyed, is fraudulent and void as to her, and courts of equity have jurisdiction to set the same aside. Weller v. Collier, 199 S.W. 974; Vordick v. Kirsch, 216 S.W. 519; Rice v. Waddill, 168 Mo. 99, 67 S.W. 605. (4) Unless there was a delivery of the deed by Henry B. Breshears and an acceptance thereof by the grantees prior to his re-marriage, such deed is void. Delivery is essential to the complete execution of a deed; if not delivered, it is of no more effect than if not signed. Hammerslough v. Cheatham, 84 Mo. 13; 18 C.J. 196 (94). (5) The delivery of a deed, so far as a grantor is concerned, is a matter of intention; and where the intention clearly appears, the acts in pursuance thereof will be construed to constitute delivery. Coulson v. Coulson, 79 S.W. 473, 180 Mo. 709; 18 C.J. 196 (94). (6) The court has the authority to set aside and annul the deed of Henry B. Breshears, made on the eve of his re-marriage, in toto, and leave the property and parties in status quo. Vordick v. Kirsch, 216 S.W. 519; Weller v. Collier, 199 S.W. 974. (7) Our courts are astute in the protection of dower as against frauds, whether such frauds are "committed in contemplation of marriage or during its existence." Vordick v. Kirsch, 216 S.W. 519; Chrisman v. Linderman, 202 Mo. l.c. 614, 100 S.W. 1090. (8) The conveyances were of such proportions that the parties were bound to know the fraudulent purpose of the grantor. The purpose was patent to one of common understanding. The grantor said he was contemplating marriage, and was making the conveyance in anticipation thereof. No other construction can be placed on the facts in evidence. Vordick v. Kirsch, 216 S.W. 519. (9) The proportion of the property conveyed by Henry B. Breshears refutes the idea of good faith, etc. The evidence in this record shows a fraud on the intended wife, rather than a transaction in good faith. Vordick v. Kirsch, 216 S.W. 519. (10) Even if it were true, as claimed by appellants, that Ida Breshears had knowledge of the deed before the marriage ceremony was performed, the most that could be made of it would be a parol antenuptial agreement, and any antenuptial agreement to defeat dower must make provision for the wife during her life, and it is against public policy to allow a man by an agreement before marriage, which does not secure to the wife a provision for support during her life after his death, to bar her right of dower, and the law sanctions no such agreement. Mowser v. Mowser, 87 Mo. 437; King v. King, 184 Mo. 99, 82 S.W. 101; Moran v. Stewart, 173 Mo. 207, 73 S.W. 177. (11) In view of the confidential relation, a man is bound to use the utmost good faith in inducing his prospective wife to execute an antenuptial agreement waiving her dower, and such an agreement is considered sufficiently suspicious to cast the burden of proof upon him who seeks to support it to show that he has taken no advantage of his influence, or knowledge, and that the arrangement is fair and conscientious. Jones v. McGonigle, 37 S.W.2d 892, 327 Mo. 457; Donaldson v. Donaldson, 155 S.W. 791, 249 Mo. 228; 30 C. J: 643; 19 C.J. 510. (12) This action is not barred by the statutes of limitation of this state. All actions for the recovery of dower in real estate, which shall not be commenced within ten years from the death of the husband, through or under whom such dower is claimed or demanded, shall be forever barred. Sec. 363, R.S. 1939. (13) No action of any kind was necessary to establish the right (dower); it came into force by virtue of the statute itself. The widow's cause of action for the recovery of dower accrued upon her husband's death, and is, of course, not barred. Kober v. Kober, 23 S.W.2d 149, 324 Mo. 379; Sherman v. Hayward, 90 N.Y.S. 481, 98 A.D. 254. (14) If Ida Breshears had at some time signed a release of her dower, procured by some fraud upon the part of her husband, then she would have been required to institute an action to cancel such release and to establish her right to dower within ten years, but where the instrument in question was not signed by her, she was not required to do anything until the death of her husband, and her dower came into existence by reason of the statute itself, and is not barred until ten years from death of husband. Sec. 363, R.S. 1939, supra; Kober v. Kober, 23 S.W.2d 149, 324 Mo. 379. (15) An innocent purchaser is one who, by an honest contract or agreement, purchases property or acquires an interest therein, without knowledge or means of knowledge sufficient to charge him in law with knowledge of any infirmity in the title of the seller. Black's Law Dictionary (3rd Ed.) 969. (16) The burden of proving a bona fide purchase from a fraudulent grantor rests on the defendant pleading it, and to support such plea, defendants who so purchased must prove they bought without notice and paid the money also without notice. Mathews v. O'Donnell, 233 S.W. 451, 289 Mo. 235. (17) The essential elements which constitute a "bona fide purchase" are a valuable consideration, the absence of notice, and the presence of good faith. McAboy v. Packer, 187 S.W.2d 207, 353 Mo. 1219; Allaben v. Shelbourne, 212 S.W.2d 719. (18) Grantee, buying with notice, can acquire no better title than that of his grantor. Byam v. Kansas City Public Serv. Co., 41 S.W.2d 945, 328 Mo. 813. (19) It is a well established rule that a court of equity may deny reimbursement of the consideration paid and of interest or other advancements made by the grantee in a fraudulent conveyance, if such grantee participated in or was aware of such fraud, and the court could equitably deny to George T. Breshears reimbursement for the money paid out by him for the $300 loan and the $24 of interest and any other moneys expended by him. Farmers Bank of Higginsville v. Handly, 9 S.W.2d 880. (20) The court has ample authority and precedent to set aside and avoid the deed in toto and to place the parties in status quo. Vordick v. Kirsch, 216 S.W. 519; Weller v. Collier, 199 S.W. 974; Rice v. Waddill, 168 Mo. 99, 67 S.W. 605.
This is a suit in equity to enforce the marital rights of a widow in real estate transferred by her husband, on the eve of their marriage, to his children by a former marriage, subject to the reservation of a life estate and a $300 mortgage; to set aside said deed; to determine title to the real estate involved; and for partition. The suit was instituted by Ida Breshears, the widow, and Noah and Ralph Breshears, two of her children by Henry B. Breshears, the said husband, against Jake and Denver Breshears and Alleen Harris, also her children by said husband, and George T. Breshears and Ina Young, children, and Velma Cobb, a granddaughter (daughter of Elige Breshears, a son) of said Henry B. Breshears by a former marriage. The court found the issues for the widow and her children and entered a judgment and decree canceling said deed; adjudged that Henry B. Breshears was the owner of said real estate at the time of his death and Ida Breshears, his widow, was entitled to her marital rights therein (homestead, dower, and statutory allowances); that the real estate, after the payment of the debts of the estate of Henry B. Breshears, deceased, passed to his heirs at law, and decreed partition of said real estate. George T. Breshears, Ina Young, and Velma Cobb appeal. Appellants contend the deed in question is valid; that respondents failed to prove their case; that the widow's cause of action is barred by limitations; that the children of Ida and Henry B. Breshears have no cause of action; and that the judgment and decree ignores certain credits to which George T. Breshears is entitled.
For sometime prior to April, 1912, Henry B. Breshears, of Benton county, Missouri, was a widower, and Ida Hunziker of Hickory county, Missouri, was a widow. Mr. Breshears had seven children by his first wife, namely: John Franklin, Mary E., Ina, Levi R., George T., Elige, and H. Hoover. Mrs. Hunziker had three children by her first husband, namely: Opal, Stella, and Hadley, ages 9, 6, and 3, respectively, in 1912. Henry B. was 52 years of age, and Ida was a young woman. They became betrothed and he procured their marriage license on April 6, 1912. On said April 6, 1912, Henry B., reserving "a life estate to himself," conveyed his 120 acres of land (valued around $3,000 as of today) in Benton county to the aforesaid children by his first marriage, subject to a "mortgage for three hundred dollars," "in consideration of the sum of love and affection and one dollar." This deed was not recorded until August 9, 1916. He owned no other real estate and very little personal property.
On April 11, 1912, Ida Hunziker and Henry B. Breshears were married; and Ida, her three children, and her personal property were moved onto the Breshears' 120 acres. Each of the Hunziker children had left the Breshears farm prior to becoming 14 years old.
Ida and Henry B. had five children, namely: Noah, Ralph, Jake, Denver, and Alleen. The family continued to live on the 120 acres until the death of Henry B., intestate, on October 3, 1948, at the age of 88. His personal estate is insufficient to meet the statutory allowances to his widow. At the time of Henry B.'s death their youngest child was 23 years of age.
[462] George T. Breshears purchased, for valuable considerations, the interests in the land of John F. and Mary E. in 1930; of H. Hoover in 1931; of Levi R. in 1936; and of Edith Sunderland (one of two children of Elige, who predeceased his father) in 1942, and recorded each respective conveyance within a few days.
Appellants offered testimony by three witnesses that, while they were working on the wedding dress, Ida said that Henry B. had deeded the place away; that they talked about it, and that she was securing a home for herself and three children. This was denied by Ida, and the trial chancellor evidently believed her.
Testimony from different witnesses was to the effect Henry B. stated that he had made a mistake in deeding the place to the older children; that he made the deed because he did not know whether Ida and he would get along and if they did not she could not cause trouble; that now he was going to do all he could so Ida and her children by him might share his property with the others; that he never intended for his deed to be recorded; that either Frank or Levi had recorded it; and that some of the older children had agreed to take it off record. A writing was introduced, signed by Elige, John F., Hoover, Mary E., and Levi R., dated October 10, 1924, under which they purported to agree that their half brothers and sister should share equally in Henry B.'s estate.
The deed was dated and acknowledged on April 6, 1912. From the fact that it was not recorded until August 9, 1916, four years later, and grantor's statement, about 12 years prior to the trial, that he intended it should not be recorded, respondents say, absent affirmative evidence one way or the other, that the presumption of due delivery is overcome; and if the deed was not delivered until after April 11, 1912, the day of the marriage, it is ineffective.
The chancellor found, among other things, "that on April 6, 1912, * * * Henry B. Breshears," in contemplation of his approaching marriage and "with a fraudulent intent and purpose to defraud * * * his future wife * * * did purport to execute a warranty deed" conveying the real estate to his seven children by his first marriage, and "that there was no consideration for such conveyance"; but there is no finding that there had been no delivery of said deed. The deed was duly signed and acknowledged, was in the possession of appellants and, as stated, was recorded. A presumption of delivery existed. Koewing v. Greene County B. L. Ass'n, 327 Mo. 680, 38 S.W.2d 40, 42[2]; Rone v. Ward, 357 Mo. 1010, 212 S.W.2d 404, 406[5]; Zumwalt v. Forbis, 349 Mo. 752, 163 S.W.2d 574, 575[3, 4], stating the fact that a deed is not recorded until after grantor's death "`is not of itself sufficient to show nondelivery.'" A presumption also exists that a deed is delivered on the day of its acknowledgment. Jefferson County L. Co. v. Robinson (Mo. App.), 121 S.W.2d 209, 212[5]; Gerardi v. Christie, 148 Mo. App. 75, 91, 127 S.W. 635, 639. Among other facts indicating a delivery are: This was a deed of gift for the purpose of passing title to children of a first marriage prior to a grantor's second marriage. The grantor reserved unto himself a life estate, strongly indicating the fee vested immediately in the remainderman as if such intention did not exist there would be no reason for the reservation. The deed remained on record over thirty years, from 1916 to 1948, without attack by the grantor. In these circumstances, the presumption of a delivery of the deed on April 6, 1912, was not overcome. Consult Aude v. Aude (Mo.), 28 S.W.2d 665, 668 [6, 7]; Raney v. Home Ins. Co., 213 Mo. App. 1, 246 S.W. 57, 59 [1-3]; 26 C.J.S. 595, § 185; also p. 592; p. 594, § 184, b; p. 598, § 187; p. 631, § 204; 16 Am. Jur. 654, §§ 381, 382, 384, 387, 388, 397-400.
Henry B.'s conveyance to the children of his first marriage in consideration of "love and affection" constituted a gift and was good for that purpose. Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, 467[6]; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308, 312[1]. However, a voluntary conveyance, one in consideration of [463] love and affection, yields where it constitutes a fraud upon creditors or a widow's marital rights. Weller v. Collier (Mo.), 199 S.W. 974, 975 (II); Vordick v. Kirsch (Mo.), 216 S.W. 519, 520[2]; Snyder v. Free, 114 Mo. 360, 21 S.W. 847, 848(2); Brown v. Oehler (Mo. App.), 192 S.W.2d 515, 517.
A couple to be married in the future stand on a confidential relationship after the agreement of betrothal. Donaldson v. Donaldson, 249 Mo. 228, 155 S.W. 791, 797[10]; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 894[1-4], 37 A.L.R. 550; 17 Am. Jur. 724, §§ 68, 107; 28 C.J.S. 124, § 55; 41 C.J.S. 570, § 97, c.
With the parties betrothed and occupying a fiduciary relationship of the strictest confidence, and with no valuable consideration passing from the grantees to the grantor, as here; and with the conveyance stripping the husband of his property and ability to meet obligations contemplated by law for the protection of his widow, the burden of going forward with the evidence to sustain the transfer shifted to the grantor husband and his representatives. See Donaldson v. Donaldson, supra; Jones v. McGonigle, supra; Snyder v. Free, supra; 17 Am. Jur. 772, § 117; 28 C.J.S. 124, §§ 55, 58; 41 C.J.S. 570, § 97, c.
If appellants' evidence could be viewed as tending to establish a purported parol antenuptial agreement releasing dower, we find no consideration moving to the betrothed for her support after his death. Consult Mowser v. Mowser, 87 Mo. 437, 440; King v. King, 184 Mo. 99, 105, 82 S.W. 101, 102; Moran v. Stewart, 173 Mo. 207, 216 (II), 73 S.W. 177, 179(2); Rice v. Waddill, 168 Mo. 99, 67 S.W. 605; Mathis v. Crane, 360 Mo. 631, 230 S.W.2d 707; § 334, R.S. 1939, Mo. R.S.A.
There is an abundance of evidence to sustain the finding that Henry B.'s deed was in fraud of Ida's marital rights. It was made on the eve of their marriage, after their betrothal and with the marriage license in Henry B.'s hands. The deed was withheld from record for four years, warranting an inference the parties to the instrument intended not to record it and to keep it secret. Henry B. had no other real estate to which his widow's homestead and dower rights could attach, the transfer having stripped him of all his real estate. He made no provision for Ida after his death. They had five children. This was something more than a marriage whereby the man secured a housekeeper and the woman a home. We are not treating with a contract made in consideration of marriage. Vordick v. Kirsch (Mo.), 216 S.W. 519, 520; Weller v. Collier, Rice v. Waddill, Jones v. McGonigle, and other authorities supra. Consult Chrisman v. Linderman, 202 Mo. 605, 614, 100 S.W. 1090, 1092.
The parties to the deed, the grantor and the grantees, understood the fraudulent purpose of the transaction, patent to one of common understanding, and cannot be considered to be innocent thereof. Byam v. Kansas City Pub. Serv. Co., 328 Mo. 813, 41 S.W.2d 945, 951 [14].
Appellants say that a woman betrothed stands as a creditor of her intended husband (Donaldson v. Donaldson, 249 Mo. 228, 245, 155 S.W. 791, 796[6]); that a complaining creditor must attack the fraudulent conveyance within the statutory limitation period, the cause of action accruing when the creditor has actual or constructive knowledge (through the recording) of the deed (Coleman v. Alderman, 357 Mo. 758, 210 S.W.2d 994, 995[2]); and as the instant deed was recorded August 9, 1916, and this action was not instituted until October 21, 1948, it is barred by the ten year statute of limitations applicable to actions by married women for the recovery of, or any interest in, or right to, or possession of real estate (§ 1005, R.S. 1939, Mo. R.S.A.).
Appellants rely on Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149, 151[2, 3], to establish error, whereas respondents also rely on the same case, 23 S.W.2d l.c. 152[7, 8].
That portion of the Kober case involved in appellants' citation relates to an action instituted November 1, 1925, to set aside [464] a deed executed by plaintiff and her husband on November 8, 1901; by plaintiff as a result of fraudulent representations to her by her husband. Unless said deed be set aside, the widow could assert no dower rights to the real estate thereby conveyed as her dower, inchoate and consummate, stood released by her said joint deed with her husband. Consequently, her cause of action to set aside said deed and thereby incidentally restore her dower interest was barred by now § 1005, supra. The deed involved in the instant case is not signed by the wife.
The other portion of said Kober case related to the recovery of dower in real estate purchased and paid for by said plaintiff's husband about October 27, 1910, but with title taken in the name of a child to defeat any claim plaintiff might thereafter have in said real estate. On this phase of the case the court ruled that the child held the property for the use of the husband under now § 318, R.S. 1939, Mo. R.S.A.; and that the widow's cause of action for the recovery of dower "accrued upon her husband's death, and, is, of course, not barred."
The inchoate dower of a wife is sufficient to give her a right to test the validity of her husband's acts in fraud thereof to protect her future right of action. Vordick v. Kirsch (Mo.), 216 S.W. 519, 520. The marital rights of Ida Breshears here involved accrued upon the death of her husband. Consult §§ 612, 318, 306, 106, R.S. 1939, Mo. R.S.A. Section 363, R.S. 1939, Mo. R.S.A., which bars actions for dower not "commenced within ten years from the death of the husband" is applicable. The instant action was instituted within three weeks of the husband's death and is not barred.
We also mention that § 1005, supra, relates to married women generally, whereas § 363, supra, is a special statute of limitations and relates to the recovery of dower by a widow. Consult § 1881, R.S. 1909, Laws 1917, p. 205; Laws 1919, p. 496; McFarland v. McFarland, 278 Mo. 1, 211 S.W. 23, 25; Belfast Inv. Co. v. Curry, 264 Mo. 483, 175 S.W. 201, 204[3].
Appellants contend the children of Ida and Henry B., their half brothers and sister, have no standing in this suit. Respondents say if the deed be set aside in toto all heirs of Henry B., except those conveying to appellant George T., are proper parties to have their rights determined, and cite Vordick v. Kirsch (Mo.), 216 S.W. 519, 520, and Weller v. Collier (Mo.), 199 S.W. 974.
The instant issue is not discussed in Weller v. Collier. In Vordick v. Kirsch the fraudulent conveyances were set aside in toto; but that case involved dower initiate and not dower consummate, as here; the rights and liabilities of the wife and husband had not been and could not be fixed until a later period; the daughter was left with full legal protection of her rights with the fraudulent scheme set aside, and there existed no necessity to invoke an estoppel against the fraudulent grantor. A moral obligation existed for Henry B. to protect his children of each marriage; but there was no legal obligation. While there was proof that Henry B.'s deed was executed to defraud his betrothed, the proof did not affirmatively embrace his afterborn children; nor was there proof that he then intended the deed to also include his afterborn children. Equity will not disturb a grantor's absolute disposition of property for the benefit of existing children to let in afterborn children of the grantor. Bobb v. Bobb, 7 Mo. App. 501, 506, 507. Consult Stierlin v. Teschemacher, 333 Mo. 1208, 64 S.W.2d 647, 652 [1, 5-8]; 91 A.L.R. 121; Price v. Morrison, 291 Mo. 249, 236 S.W. 297, 301 [1, 2]; Bullock v. Peoples Bk., 351 Mo. 587, 173 S.W.2d 753, 757 [6]; Raney v. Home Ins. Co., 213 Mo. App. 1, 246 S.W. 57, 59. The general rule is that a conveyance in fraud of a woman's marital rights is void and to be set aside only to the extent it affects said marital rights. 28 C.J.S. 130, § 58; 17 Am. Jur. 764, § 107.
Furthermore, giving consideration to the fact that George T. Breshears paid the $300, 8%, debt secured by mortgage on [465] the real estate in 1930; that he made some improvements to the premises; that between 1930 and 1942 he purchased, paying valuable considerations, 9/14ths of the interests passing under Henry B.'s deed to his brothers and sisters; and that there was no attack on Henry B.'s deed for many years and until after his death, we think the equities do not call for a cancellation of said deed in toto but that justice will be served under the instant facts by a decree adjudging the remaindermen to hold their title subject to all the marital rights of Ida, the widow of Henry B.
The judgment is reversed and the cause is remanded with directions to adjudge the title in appellants; that is, 11/14ths in George T. Breshears, 2/14ths in Ina Young, and 1/14th in Velma Cobb, all subject to the marital rights of Ida Breshears as the widow of Henry B. Breshears, and for further proceedings in conformity herewith, Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.