Carr v. Lackland

20 S.W. 624, 112 Mo. 442, 1892 Mo. LEXIS 232

• Court: Supreme Court of Missouri
• Decided: November 29, 1892
• Status: Published

Opinion

Maoeaklane, J.

This is a suit in equity growing out of a marriage contract between Gerard B. Allen and Eugenia L. Carr, executed prior to their marriage, which occurred July 12, 1871.

At the time of making the contract Mr. Allen was a widower, fifty-four years of age, with four children, and Mrs. Carr was a widow, thirty-seven years old, having four children also; each was possessed of an estate, — that of the former valued at $250,000 and that of the latter at $50,000. In contemplation of marriage they entered into a contract dated the tenth day of July, 1871, in one paragraph of which it was agreed that Mr. Allen would transfer and deliver to Mrs. Carr securities amounting to $50,250, describing in connection therewith two certificates or receipts, — one for $45,000 and the other for $5,250. In another paragraph it was provided that the property of Mrs. Carr should remain her separate property, subject to her control and disposal, to which a limitation of the use of the usufruct, rents and profits by the husband was added. The dispute is over these two paragraphs, and they will be set out in full in considering their legal effect and meaning.

Mrs. Carr, party of the second part, in consideration of said marriage and of the agreement and covenants of the said Allen, agreed to accept the foregoing settle frment in lieu of dower or other claim on the estate of the said Allen. The certificates ■ or receipts specified and described in the contract, together with the contract itself, were delivered on the day of the marriage to one Henry G. Paschall, a brother of Mrs. Carr. After the marriage Mr. Allen took charge of the business of his wife as her agent or trustee. He moved into her residence, took control of all her estate, and what she afterwards acquired, and appropriated the rents, issues and profits thereof to his own use until his death, which occurred in July, 1887.

The certificate or receipt for $5,250 turned out to be wholly worthless. These certificates or receipts w*ere afterwards exchanged by Mr. Allen, acting for his wife, tor fifty bonds of the St. Louis, Council Bluffs & Omaha Railroad Company, of $1,000 each. These were returned to Mr. Paschall in lieu of the said certificates, August 16, 1875. On the tenth day of March, 1876, Mr. Paschall returned these bonds to Mr. Allen, who told him there was to be a compromise of them. These fifty bonds were exchanged for thirty-three new bonds of $1,000 each, issued by the same company, dated June 28, 1878, and bearing a lower rate of interest. The old bonds were compromised by accepting the new ones at thirty-three and one-third per cent. off. The interest due on the old bonds «was also compromised, and the amount agreed upon was retained by Mr. Allen, for which he never accounted.

Mr. Allen died July 23, 1887, leaving a will dated June 11,1887. His estate was valued at several million dollars. In his will he referred to his wife, their happy married life, and the marriage settlement, and by it gave her in addition the household furniture, carriage and horses, a home for life, and $7,000 per year while she should live.

After the death of Mr. Allen, on the thirtieth of July, 1888, this suit was commenced, by his widow, Eugenia L. Allen, against the executors of deceased. Since the trial in the circuit court the plaintiff has died, and the suit is now prosecuted by her executors, Paschall Carr and Walter B. Carr.

The petition contains two causes of action. The first charges in effect that Mr. Allen intended and covenanted to settle upon plaintiff securities in the value and amount of $50,250; that the securities indicated by him in the contract were wholly unknown to plaintiff and within the knowledge of Mr. Allen; that said securities were not of the value of $50,250; that they remained under the control of Mr. Allen, who, after the marriage, without her consent, converted them into other securities of the value of $33,500, which she now has; that the consideration for the relinquishment of her dower rights has failed in the sum of $16,750. She asks for the return to her of additional securities in that sum, or for a judgment in that amount, with interest.

In the second cause of action she alleges, in effect, that, by virtue of said marriage settlement, she was entitled to the income, interest and profits of her separate estate; that during his life Mr. Allen received and appropriated the same to his own use. An account of the sums so received and appropriated is asked for.

The defendants in answer to the first count or cause of action allege, in effect, that Mr. Allen, after the solemnization of the marriage, delivered to Henry Gr. Paschall, brother of Mrs. Allen, the receipts described in the marriage settlement, and that they were delivered to and received by him in full discharge and satisfaction of the obligation of-the marriage contract.

To the second count or cause of action the defendants aver that the usufruct and rents of Mrs. Allen’s estate were not sufficient in amount for the support and maintenance of her children; that in consideration of such fact the usufruct and rents of her estate were to be given to Mr. Allen; that after the marriage Mr. Allen, with the approval of Mrs. Allen, took upon himself the support and maintenance of the children, and continued to support them during his life. It is nowhere alleged that Mr. Allen was bound by the marriage contract or any other contract to support the children. It is alleged that Mr. Allen’s reception and use of the rents of Mrs. Allen’s estate was by her consent and approval.

These defenses in the answer were denied in the reply of plaintiff.

After a trial in the circuit court the bill was dismissed, and plaintiff appealed.

Tire controversies arising on the first count of the petition grow out of the proper construction to be given to the following provision of the contract: “The said party of the first part further covenants and agrees that, on the day of the solemnization of the said marriage, he will deliver to the party of the second part, or to her agent or attorney for her use, securities amounting in the aggregate to the sum of $50,250, to-wit, a certificate or receipt for payment of $45,000 for purchase of bonds from the Chillicothe & Omaha railroad associates, said bonds to be issued by the St. Louis, Council Bluffs & Omaha Railroad Company. And also a certificate or receipt for payment of $5,250 for purchase of bonds of the St. Louis & St. Joseph Railroad Company, both receipts dated July 12, 1871, and signed by Oeo. C. Fabian, secretary and treasurer. Which said securities shall from the delivery thereof as aforesaid be accounted, reckoned and taken as a separate and distinct estate of and from the estate of him, the said party of the first part, and be in nowise liable or subject to him or to the payment of his debts, but the profits or increase that shall hereafter be gotten, gained or made of the same by accumulation of interest or otherwise shall be subject to the control, use and disposition of the party of the first part during his life.”

I. It is insisted on the part of plaintiff that the undertaking of Mr. Allen, as properly deduced from the contract, was, that he should deliver to Mrs. Carr securities of the actual value of $50,250, while defendant contends that he only agreed to deliver the particular certificates and receipts described in the contract, and none others.

We think it established beyond question by the evidence that the securities, as they were called, specified in the contract, were not, at the date of the marriage, of the value of $50,250, nor were the bonds into which these certificates or receipts were afterwards converted of that value at any time from the dates of their receipt by Mr. Allen until his death. It' may then, without considering the evidence in detail, betaken as an established" fact that the securities held by Mr. Allen as trustee for his wife, whether they consisted in the certificates, or the bonds into which the certificates had been converted, were not, at any time during the marriage, of the designated value. If then the parties intended by their contract that the securities to be delivered should be of the actual value of $50J250, a deficiency would exist, which should be made good out of the estate of Mr. Allen.

We are asked, in the first place, by counsel for plaintiff, in construing the contract, to consider the attitude of the contracting parties to each other, the delicate situation in which the lady is placed in such circumstances, the unquestioning confidence and trust she reposes in one into whose keeping she is about to intrust her future happiness, and apply those principles of equity which require that where there is trust and confidence on one part there must be required of the other the corresponding obligation of the utmost good faith and fairness. Above all, the court is asked to move “in obedience to what has been sometimes termed a cardinal rule; that rule is, to maintain and enforce marriage contracts as beneficial provisions for the wife;” and, when a release of her marital rights has been obtained, to presume that the husband intended in consideration therefor to provide her some other adequate or equivalent means of support.

There is no doubt of the equity of the rules invoked when applied to those cases in which the wife is seeking relief from an unconscionable agreement into which she has, in her confidence, been misled. In such case it is held that the contract and all the circumstances attending its execution should be regarded “with the most rigid scrutiny; and, where the circumstances establish that the woman has been deceived, or induced by false pretenses to enter into the contract, it will be held null and void.”' Pierce v. Pierce, 71 N. Y. 154; Kline v. Kline, 57 Pa. St. 120.

This is not such a casé. No bad faith on one side or misplaced confidence on the other is either charged or proved. The writing, as embodying the agreement and intention of the parties, untainted by fraud or deceit and uninfluenced by confidence or affection, is before us to be construed and its covenants enforced, and not for cancellation. We know of no rule of interpretation which is peculiar to such contracts. “The-court cannot take into consideration the hardship of any individual case, but must judge upon settlements and wills, as it finds them, and as the parties have thought fit to make them.” If unambiguous and unimpeached, the contract, as all others, must be understood and enforced according to the common understanding of the language employed. If the language used is ambiguous, then the contract should be construed in the light of the situation of the parties and their relation to each other, the purposes to be attained and all the circumstances attending the transaction. 1 Greenleaf on Evidence, sec. 272; 2 Parsons on Contracts, 449; Peachey on Marriage Settlements, 456; Smith’s Appeal, 115 Pa. St. 319; Kesler’s Estate, 143 Pa. St. 386; Hosford v. Rowe, 41 Minn. 245; McNutt v. McNutt, 116 Ind. 545; Peet v. Peet, 81 Iowa, 172.

Is there any ambiguity in this clause of the agreement which calls for construction? It is claimed by counsel that the recital that Mr. Allen would deliver to Mrs. Carr or her agent securities amounting to $50,250 should be construed into a covenant that they would be of that value notwithstanding the subsequent specification of certain receipts or certificates whose aggregate face value amounted to that exact sum. The general proposition that a recital in a contract or deed may be construed as a covenant against the party making it is true, but we think in order to make such a construction it must be very clear, from the language of the whole instrument taken together, that such was the intention of the parties. Usually such recitals are held as descriptive only. Ferguson v. Dent, 8 Mo. 668; Dryden v. Holmes, 9 Mo. 135; Peachey on Marriage Settlements, 373; Farrall v. Hilditch, 5 C. B (N. S.) and note.

We are unable from the words “securities amounting to $50,250,” as used in the contract, to spell out even a representation that such securities would be of that value. The word “amounting” never carries with it a definite idea of value; it implies an aggregate or sum of two or more things, — a quantity or a number. The insolvent notes of a bank may amount to more than those that are solvent. Nothing to the contrary appearing, we must presume that the parties used the word in its ordinary sense, meaning thereby that the express or face value of the securities, when added together, aggregated the sum of $50,250.

But to remove all possibility of doubt or question, ■ the parties themselves explain their meaning in the simplest possible manner by immediately particularizing and specifically describing the very securities meant. No argument can make the intention of the parties clearer. By the clearly expressed terms of the agreement Mr. Allen undertook and agreed to assign to Mrs. Carr the two certificates described and nothing more. These were delivered, and that they were then, or after-wards turned out to be, worth less than their face value is no ground for straining a construction of the contract so as to make it more beneficial to one of the parties. The general terms “securities amounting to $50,250” were restrained and limited by the subsequent particular description of the receipts or certificates intended. Dart v. Bagley, 110 Mo. 42; Torrance v. McDougald, 12 Ga. 526; Grumley v. Webb, 44 Mo. 444; Guffey v. O’Reiley, 88 Mo. 422.

• II. After the marriage of Mr. Allen and Mrs. Carr, the husband took charge of the estate possessed by the wife at the time, and managed the same during his life, receiving and appropriating to his own use the rents, issues and profits thereof. That the property was well managed, kept separate and distinct from his own, an accurate account of it kept, and after his death the corpus thereof, increased by some profitable investments, restored to his widow, is not disputed.

By the second count of the petition plaintiff seeks to charge Mr. Allen, as trustee for his wife in the management of her separate property, and to require his executors to account for the rents, issues and profits thereof, received by him during the marriage.

The paragraph of the contract, out of which the complaint in this count grows, is as follows: “Notwithstanding the said marriage, he, the said Gerard B. Allen, his legal representatives or assigns, shall not, nor will, intermeddle with, or have any right, title or interest, either in law or equity, in or to, any of the property, whether real, personal or mixed, of and belonging to the party of the second part at the date hereof, or in any that she may hereafter acquire or be entitled to, by gift, devise, grant, purchase or otherwise, but the said property shall remain, continue and be to the said party of the second part, or to such uses as she shall by will or other writing think fit and proper to appoint, and the same shall be subject at all times during coverture to the absolute direction and control of the party of the second part, so that the same shall not be in the power or disposal of the' said party of the first part; and the said part of the first part covenants to and with the party of the second part, her heirs, and assigns, that' all and singular her said property, real, personal and mixed, shall at all times be accounted, reckoned and taken as a separate property and distinct estate of and from the estate and property of him, the party of the first part, and be in nowise liable or subject to him or to the payment of his debts, but the same shall and may be ordered, disposed and employed to such person or persons, and manner and form as the said party of the second part shall order and appoint as aforesaid, the usufruct, rents and income during coverture of said-, only, to be subject to the control of the party of the first part.”

Plaintiff in her petition states the construction she places upon this clause of the contract as follows: “And your petitioner says that, according to the true intent and meaning of said contract, the real and personal property of this plaintiff was to remain vested in her and to her separate use as to rents, interests, issues and income, as well as in respect to the principal and body thereof; and that the clause relating to the usufruct, rents and income thereof was not intended to vest in said Allen, and did not operate to vest in him, the beneficial use of said usufruct, rents and income, but that the beneficial use and enjoyment thereof remained in yonr petitioner, as of her separate interest and éstate; your petitioner at that time being a widow, with four children dependent upon her for support, maintenance and education.”

As has been said, in considering another paragraph of this settlement, the good faith and fairness of Mr. Allen is not called in question, nor is complaint made that Mrs. Allen was in any manner overreached or deceived into making the contract. This paragraph of the agreement must stand as it is written, and effect must be given it according to the way it was understood by the parties making it.

The cardinal rule, in obedience to which all courts should act in the construction of contract and other instruments, is to ascertain and give effect to the intention of the parties. Rules of construction may be invoked for the purpose of ascertaining the intention; but when there is no uncertainty or ambiguity in the language used, no place will be left for the application of technical rules. Long v. Timms, 107 Mo. 519; Anglade v. St. Avit, 67 Mo. 436.

As has been seen, both parties to the contract were of mature years. Each had four children by former marriages; each was possessed of considerable estate. Mr. Allen was a man of recognized business ability. Mrs. Carr, so far as anything appears to the contrary, had managed her own affairs. She had inherited and received an estate from her father, and had also received property as the widow of a deceased husband. She had some knowledge, therefore, of marital duties and rights. Under these circumstances the contract was made. After agreeing to transfer and deliver to his intended wife securities which turned out to be worth $33,500 the paragraph here in dispute was made.

In the first place the parties clearly recognized the marital rights of the husband under the law as it then existed in this state, and introduced the agreement by the declaration that, “notwithstanding the said marriage,” the husband would not “intermeddle with or have any right, title or interest, either in law or equity, in or to any of the property, whether real, personal or mixed, of and belonging to the party of the second part [Mrs. Carr] at the date hereof.” By this part of the agreement, the husband waived his right to reduce to his possession and absolutó ownership any part of the property owned by the wife at the time of the marriage, or that she might thereafter acquire. The contract then proceeds to provide for the treatment of said property and the manner in which it should be held, the effect of which was, as between the parties and the creditors of the husband, to create a separate estate in the wife of the said property, free from all the marital rights of the husband. A careful reading of the contract will show that all these provisions are made in reference to the corpus of the estate she owned at her marriage, or should acquire thereafter by gift, grant or devise. After the most carefully considered and prepared provisions for securing the estate to the separate use and enjoyment of the wife, and for protecting it from any claims of the husband or his creditors, the paragraph concludes as follows: “The usufruct, rents and income during coverture of said ——, only, to be subject to the control of the first party.”

It is insisted by plaintiff that the power of disposition, conferred upon Mrs. Carr by the first clause of the paragraph, carried with it necessarily an absolute gift of the property to her, so far as the husband had rights therein to grant, and all the fruits and effects passed with the property as appurtenant or belonging to it, though not specifically named, and that nothing of the usufruct was left to pass to Mrs. Allen under the last clause. We are not disposed to construe one out of his rights under a contract merely because such rights are seemingly inconsistent with rights previously, but by the same instrument, granted to another. As has been said, the intention of the parties is to control, and “that intention is to be gathered, not from single words, passages or sentences, but from a consideration of the whole instrument taken together in its general scope and design.” Russell v. Eubanks, 84 Mo. 86; Shickle v. Iron Co., 84 Mo. 161; Long v. Timms, supra; Anglade v. St. Avit, supra.

Now, taking this whole contract and all its parts together, it is clear that the property in which Mrs. Allen was to take a separate estate free from the claims of the husband, with power-of disposal, was limited to the corpus of the property, and did not include the usufruct. That the parties intended that the husband should have the “usufruct, rents and income” of the property of the wife is too plainly written in the contract to admit of question. We are not able to see that the intention so expressed is in contravention of any rule of law, and it must prevail.

III. It is insisted that these settlements should be enforced as beneficial provisions for the wife, and the court should presume that, when she has released her marital rights in the property, the husband intended to provide her an equivalent for what she has surrendered. We do not think such equitable considerations should control the clearly expressed intention of the parties. The parties were both competent to contract, and made their own agreement; the court should not interfere to make a new one. Still, looking at all the provisions of this contract, and sixteen years of practical life under it, the results show that it was reasonably beneficial to the wife. Marriage itself is said to be the “highest consideration known to the law.” See authorities cited in McNutt v. McNutt, 116 Ind. 545.

Mrs. Allen at the time was a widow, with, four children to rear and educate. She had property in her own right, the income of which could barely have been sufficient, in her condition of life, for the support of her family and the education of her children. After sixteen years of married life under the contract, she has her children educated and her estate more than doubled in value. This is the financial result only, and omits altogether the provision made for her by will.

Taking the view we adopt of the contract, it is deemed unnecessary to consider the effect on the right to recover back rents and profits the acquiescence of the wife to their appropriation may have had.

Judgment is affirmed.

All concur.