source: Caselaw Access Project

author: SMALL, C. PER CURIAM: PER CURIAM:

license: Public Domain

text:
    OLIVE PERKINS, Alias OLIVE KARSHNER, v. GERSON B. SILVERMAN, Administrator of Estate of PEARL D. KARSHNER, Appellant.
    Division Two,
    July 19, 1920.
    1. WIDOW’S RIGHT IN PERSONALTY: Equitable Proceeding. Controversies concerning the widow’s rights in personalty are equitable proceedings, triable in the circuit court by the judge alone, and triable de novo in the appellate court. A proceeding involving the question whether the plaintiff was the common-law wife of decedent and entitled to the articles allowed by the statute to the widow as her absolute property, or in lieu thereof to a reasonable sum of money, tried in the circuit court, upon appeal from a disallowance in the probate court, is a suit in the nature of a suit in equity, triable before the court alone, and triable in the ■ appellate court ele novo. '
    2. NEW TRIAL: Newly Discovered Evidence: Cumulative. Newly discovered evidence, presented in the form of affidavits in support of the motion for a new trial, to the effect that plaintiff was of ill-repute and bad reputation for chastity both before and after the making of an alleged contract of marriage between her and decedent, if evidence was offered at the trial that her reputation in these respects was bad, is merely cumulative, and therefore constitutes no ground for a new trial.
    3. FAILURE TO CALL WITNESS: Burden. In a proceeding by plaintiff to establish her right to share in decedent’s personal estate as his widow, the burden is on her to establish a common-law marriage between them, and it is her duty to call any witness with whose testimony she is familiar, and no unfavorable inference can be drawn from the administrator’s failure to call the lawyer who wrote decedent’s will and who had previously testified in the probate court in the same proceeding.
    4. MARRIAGE: Elements of Contract. To constitute a valid marriage, either under the statute or at common law, there must be, first, one man and one woman capable of contracting, and, second, they must enter into a contract, by which they assume the relation of husband and wife for their joint lives, and they must both understand that neither, nor both, can rescind the contract or destroy the relation.

      5. COMMON-LAW MARRIAGE: Prior Illicit Relations: Presumption. Where the evidence establishes that illicit relations had existed between plaintiff and decedent for a long time prior to their entrance into the alleged common-law contract of marriage, such meretricious relation is presumed to continue, and the burden is on her to satisfy the conscience of the court that a new and real relationship of marriage was thereafter, by mutual' agreement, in good faith, entered into between them.
    6. -: -: Insufficient Evidence. The testimony of a girl, at the time thirteen years of age and now seventeen, that she casually overheard a part of a conversation between plaintiff and decedent, who were in an adjoining room, to the effect that decedent told plaintiff (her mother) that he loved her and asked her if she would be his wife, to which her mother replied she loved him and would agree to be his wife, followed by a statement by decedent shortly afterwards at dinner in the presence of the mother that her mother had agreed to be his wife and that he would move his trunk and other personal effects to her apartment the next day, which he did, and they thereafter occupied the same bed, no other person being present, at the time the alleged conversation took place, and that she gave no particular attention to it, did not think it was anybody’s business, and had repeated it to no one for three or four years, and then told it only when the suit by her mother to establish her right as widow to share in decedent’s estate was contemplated, is not sufficient to establish a common-law contract of marriage between her mother and decedent, who had previously sustained illicit relations with each other and neither of whom had any serious respect for the marriage relation.
    7. -: -: Repite. A holding out of themselves as husband and wife, by a man and woman who had previously to their alleged common-law contract of marriage sustained illicit sexual relations with each other, at theaters, automobile exhibitions, reputable hotels and among his trades-people, where such repute was necessary for their peace or his success as a dealer in automobiles, and at all other places and among his relatives and employees, and generally, that they were not husband and wife, establishes at best only a mottled repute, and is not sufficient to establish a matrimonial state.
    8. -:' Evidence: Subsequent Acts. All the facts and circumstances, and all that was said or done by either the man or woman prior to the death of either, are competent in the suit by the survivor to establish the existence of a marriage relation between them, where reliance is placed upon a common-law contract.

      9. -: -: Settlement Document. A written document,. signed and upon oath acknowledged by plaintiff as her free act and deed, in which it was1 stated that she had been decedent’s housekeeper and claimed no right to his property, that they were never married and had never lived together as husband and wife, and that in consideration of $200 paid she released him and his estate of all claims and demands, made a few months prior to his death, followed by an acceptance of the money by her, and preceded and followed by cohabitation, cannot be considered simply as a futile effort by them, made in ignorance of the law, to dissolve a prior alleged contract of marriage, but shows that prior to its execution they had lived together out of wedlock and continued to do so afterwards.
    10. -: -: Denial in Decedent’s Will. An admission in a written document signed and under oath acknowleged as her free act by a woman, and a statement in his last will by the man in full consciousness that death was at hand, in which both state that they are single and unmarried, expressed in the clearest terms, is evidence of the most impressive character that their relationships to each other were not those of husband and wife and never had been.
    11. -: Appellate Jurisdiction: Suit for Widow’s Allowance: Determined by Companion Suit. Claiming to be the widow of a decedent, plaintiff began separate proceedings in the probate court against the administrator (1) to establish her claim to the absolute property given the widow by the statute and to choose in lieu thereof the $400 authorized by the statute and (2) to establish her claim to one-half the personal estate, subject to debts, asserting that decedent left only one child. Both claims were denied in the probate court, and she took separate appeals to the circuit court, and in that court it was agreed by the parties that her claim as'widow to the absolute property should be tried first, and the issue in the other claim should abide the judgment in the first. In both proceedings the real issue was whether the relation of husband and wife had existed between plaintiff and decedent by reason of a common-law contract of marriage, and the circuit court found the issue for plaintiff and decreed she “was at the death of decedent, his wife, and is entitled to receive such portion of his estate as is provided by the statutes,” and from that judgment the administrator appeals. At the trial it was admitted by both parties that the value of the estate exceeded $20,000 and that decedent left only one child, and the probate records introduced in evidence showed the personal estate to be worth over $30,000, that there were no debts and that the only claim allowed was one for $30 a month for the support of the child. Meld, on re-hearing, that the amount involved is one-half the personal estate, and the Supreme Court has jurisdiction of the appeal.

      Appeal from Jackson Circuit Court. — Eon. Daniel E. Bird, Judge.
    Reversed (with directions.)

      Lamm, BoJiling é Lamm, John 'E. Burden and Ger-son B. Silverman for appellant.
    (1) This is a suit to obtain the distribution' to respondent of an alleged widow’s share in the Karshner estate under Secs. 114, 115 and 116, R. S. 1909, and to establish an alleged status of husband and wife; the defense was that respondent was not the widow of deceased, (a) The better doctrine is that suits having for their purpose the distribution of personal estates, as well as suits pertdining to both the administration and final settlement of estates, are not triable to a jury, but are of an equitable nature, and therefore, on appeal here, this court hears and determines the case, both on the facts and on the law, precisely as if the suit- was in equity. Howard v. Strode, 242 Mo. 221; In re Estate of Largue v. Ramsey, 198'Mo. App. 271; Stevens v. Larwill, 110 Mo. App. 149; Whaley v. Wlhaley, 50 Mo. 582; Ansley v. Richardson, 95 Mo. App. 334-5; In re Estate of Branch, 123 Mo. App. 577; In re Estate of Meeker, 45 Mo. App. 189; Bradley v. Woerner, 46 Mo. App. 371; Finley v. Schlueter, 54 Mo. App. 455. (b) But whether the suit is one of an equitable nature or not is not vital; for in this case there is no substantial evidence of the kind required by the law to establish a common-law marriage. (2) It is established beyond all question on this record that the relations between respondent and deceased commenced while she was the wife of Benjamin F. Perkins and he was the husband of Josie I. Karshner; in-other words, that these relations were adulterous at the outset. The status of the inception of their relations being such the trial court erroneously in its findings and judgment ignored the proposition that.such illicit relations are ' presumed to continue on the same footing; and ignored the further proposition that the burden was, therefore, cast upon respondent to show by unequivocal evidence that such status was changed in good faith by mutual consent, to that of husband and wife. Cargile v. Wood, 63 Mo. 514; Williams v. Williams, 46 Wis. 477, 480; Drawdy v. Hesters, 60 S. E. 451, 15 L. R. A. (NMS.) 190; Appeal of R. & I. & T. Co. Guardian, 113 Pa. St. 204. (3) The trial court in finding the issues for respondent erroneously ignored the propositions that: (a) Common-law marriages are not favored by the courts. That to establish a common-law marriage in Missouri, the proof should be “stringent.” There should be substantial proof and a “high standard of it” to establish such marriage. Williams v. Williams, 259 Mo. 252; Nelson v. Jones, 245 Mo. 573; Bishop v. Brittain Inv. Co., 229 Mo. 724, 726. (b) The trend of the modern judicial mind is to critically analyze and carefully weigh the testimony in cases where common-law marriages are claimed, for instance, when there is no bona-fide marriage (as here) and one is simulated, it is to be expected that some of the concomitants and simulations of a genuine marriage will be copied and appropriated. ■ Cherry v. Cherry, 258 Mo. 391; Grigsby v. Reib, 105 Tex. 600; Williams v. Williams, 259 Mo. 252; Topper v. Perry, 197 Mo. 545. (4) The trial court erred in its declarations of law, given for respondent, and in its findings and judgment erroneously ignored the following settled doctrines: (a) That to constitute a valid common-law marriage there must be, among other elements, a mutual intent to in good faith assume, and continue during life, the relation of husband and wife. - (b) That when cohabitation is relied on, as here, it must be cohabitation as husband and wife and not as a screen to that of man and kept mistress, .(c) That absent a ceremonial marriage (as here) the reputation, habit and repute, necessarv to validly establish a common-law marriage, must be uniform and general or common among acquaintances, relatives and the public. Bishop v. Brittain Inv. Co., 229 Mo. 727; Topper v. Perry, 197 Mo. 545; Nelson v. Jones, 245 ;Mo. 597; Banks v. Galbraith, 149 Mo. 536; Williams v. Williams, 259 Mo. 252: State v. Kennedy, 207 Mo. 536; Pegg v. Pegg, 138 Iowa, 572; In re Smith’s Estate, 133 N. Y. Supp. 730. ^ .

      Harry G. Kyle for respondent. '
    r (1) Cumulative or impeaching evidence does not constitute grounds for new trial. Folding Bed Co. v. Eailway, 148 Mo. 484; Gardner v. Eailway, 167 Mo. App. 605; Stahlman v. Eailway, 183 Mo. App. 144; Eoth Grocery Co. v. Hotel, 183 Mo. App. 429; Lyons v. Eailway, 253 Mo. 143; Ford v. Storage Co., 138 Mo. App. 512; Stamping Works v. Wicks, 144 Mo. App. 249; Parker v. St. Louis, 109 S. W. 1073; Blake v. Eoyal Insurance, 112 S. W. 1000; Devoy v. St. Louis, 192 Mo. 197. (2) A common-law marriage is valid in Missouri. The issuance of a license or the celebration of a marriage ceremony is not necessary to constitute a valid marriage. A common-law marriage exists when a man and woman enter into an agreement to be husband and wife, and in pursuance of such agreement, live together and cohabit as husband and wife, and hold each other out to the public as husband and wife. Butterfield v. Ennis,. 193 Mo. App. 638; Pope v. Mo. Pac. 'Ey. Co., 175 S. W. 955; State v. Eotter, 193 Mo. App. 110; Jordan v. Mo. & Kan. Tel. Co., 136 Mo. App. 192; Bishop v. Britton Inv. Co., 229 Mo. 699; Imboden v. Trust Co., Ill Mo. App. 220; Topper v. Perry, 197 Mo. 531. (3) When persons live and cohabit together and are reputed to be married, they are presumed to be married, as it will not be presumed that they have violated the law, and where a presumption of marriage has once so arisen, it can be overthrown only by the most cogent proof. The presumption of marriage arising under such circumstances, is the strongest presumption known to the law. 1 Jones on Evidence, p. 101; Bishop v. Brittain Inv. Co., 229 Mo. 699; Jackson v. Phalen, 140 S. "W. 879; Maier-v. Brock, 222 Mo. 74; Plattner v. Plattner, 116 Mo. App. 405. (4) A valid 'agreement of common-law marriage once entered into, ‘the parties thereto living together and cohabiting as husband and wife and holding each other out to the public as husband and wife, cannot be rescinded or dissolved by them; only a court of competent jurisdiction can dissolve the contract. Bishop v. Brittain Inv. Co., 229'Mo. 699; Jordan v. Tel. Co., 136 Mo. App. 192; Trammell v. Vaughan, 158 Mo. 222; Coy v. Humphreys, 142 Mo. App. 92. (5) A marriage contract may be proved as other contracts. Davis v. Stouffer, 132 Mo. App. 555 ; Imboden v. Trust Co., Ill Mo. App. 220; Plattner v. Plattner, 116 Mo. App. 405. (6) The evidence was sufficient to show marriage. Butterfield v. Ennis, 193 Mo. App. 638; State v. Rotter, 193 Mo. App. 110; Pope v. Mo. Pac., 175 S. W. 955; State v. Bittick, 103 Mo. 183. (7) Should this court find that the relation of the parties was meretricious in its inception (the record does not so show), yet, nevertheless, if after the impediment was 'removed, they continued to live and cohabit together and held themselves out as husband and wife the courts will presume a lawful marriage immediately after the removal of the legal impediment. 1 Jones on Evidence, pp. 428-430; State v. Rotter, 193 Mo. App. 110, 181 S. W. 1158; Cross v. Cross, 96 Mo. App, 486, 70 S. W. 393; Bishop v. Brittain Inv. Co., 229 Mo. 699, 129 S. W. 674. (8) The issue involved is a question of law, arising from a legal statutory right upon which trial was had without a jury. It. is for this court to determine whether or not There was sufficient evidence to sustain the judgment of the trial court. This is the only point involved in this appeal. Nelson v. Troll, 173 Mo. App. 51, 156 S. W. 16; Ulrici v. Johnston, 177 Mo. App. 591; Fritch v. Fritch, 179 Mo. App. 443; In re Estate of Imboden, 128 Mo. App. 555; Pope v. Mo. Pac. Ry. Co., 175 S. W. 955. (9) The judgment of the trial court was for the right party; the findings were within the law and the evidence of‘the case, were responsive to and did dispose of all the issues. No other judgment and findings could have been rendered under the law and the evidence.
   SMALL, C.

Appeal from the Circuit Court of Jack/son County. This proceeding involves the question of ■ whether the plaintiff was the common-law wife of Pearl D. Karshnér at the time of his death. She filed two claims in the Probate Court of Jackson County, Missouri, as widow of said Karshner, one asking for all articles allowed the widow, as her absolute property under Section 114, Revised Statutes 1909, except grain, meat, etc., not on hand, and that in lieu thereof she be allowed a reason-ale sum under Section 115, and that she also be allowed to choose as her own property, under Section 116, additional property not to exceed the appraised value of $400. Claim was filed August 31, 1916. On the same date she also filed a claim, as such widow, for interest in the personal property of said estate, alleging that said Karshner left but one child, and that she was the widow and was entitled to one-half of said personal estate, subject to the debts, under Section 349, Revised Statutes' 1909, which she prayed the court to order the executor to pay her before an order of distribution be made or final settlement approved.

The administrator with the will annexed filed a paper in said probate court putting in issue each claim filed and especially denying that respondent was ever the wife or widow of said Karshner.

The probate court in due course heard the evidence and denied the plaintiff’s claims, holding that she was never the wife of said Karshner, and was not his widow or entitled -to any allowance or interest in his estate as such.

On appeal to the circuit court, the parties agreed that the claim for personal property under Sections 114, 115 and 116, would be tried first, and the second claim under Section 349, on the issue of whether plaintiff was the widow of decedent, should abide the judgment on the first claim. The circuit court made an order as to -the trial of said claims accordingly. The cause was thereupon taken up and tried by the court, no jury being called for by either party. At the close of the testimony, the plaintiff asked for two declarations of law, which were given, and the defendant asked for a demurrer to the testimony, which was refused. The case was taken under advisement, and subsequently the court' filed a written finding of facts, also a review of the law*, in pursuance of which the court found the issues for plaintiff, rendered judgment that she was the wife of said Karshner at the time of his death, and as such was entitled to receive such portion of his estate as provided by the statutes of Missouri. After unsuccessfully moving for a new trial,'the appellant appealed to this court.

The evidence showed that plaintiff on the 4th day of June, 1913, was divorced by her husband, B. F. Perldns, by a decree of the Circuit Court of Jackson County, on the ground of desertion, and the thirteen-yeai’-old daughter, Beatrice Fay Perkins, given into the custody of the father. That on the 12th day of December, 1912, Josie I. Karshner, the wife of Pearl D. Karshner, obtained a divorce in said circuit court from him, and she was awarded the custody of their twelve-year-old son. Both the Karshners and the Perkinses had resided in Kansas City for some years. There never was any ceremonial or statutory marriage between plaintiff and said Karshner. The claim is, however, that there was a verbal agreement made on or about the 10th of July, 1913, that they would be husband and wife, and that they at all times thereafter cohabited as husband and wife and held themselves out and were reputed to be husband and wife up till the time of Karshner’s death. Karshner was in the automobile business for eight or ten years before his death. He died July 15, 1916.

The only direct evidence in support of said verbal agreement was given by said Fay Perkins, the plaintiff’s daughter. At the time of the trial she was about eighteen years old. On her direct-examination, she testified: That her father’s name was Benjamin Franklin Perkins. That her father and mother and herself moved to Kansas City when she was six years old. That she attended the public schools, and also, St. Theresa and St. Agnes’ convents in Kansas City, and the last four years of her school life attended the Sacred Heart Academy at Cedar Rapids, Iowa. While at Cedar Rapids, she would come home to Kansas City to spend the Christmas and summer vacations. That she always lived with her mother. That her father and mother were divorced June 4, 1913, but had not been living together for about three years before. Pier father was a traveling man. She and her mother moved to 1425 Central Street July 8, 1913. She met Pearl D. Karshner. in 1910. She and her mother were then living at the Washington Hotel. Karshner called upon them at 1425 Central Street the night she and her mother moved there, and he was there on the 9th and 10th. That in the evening of July 10th, while she was in the dining room, and Karshner and her mother were in the kitchen, she overheard part of a. conversation between them. “I heard Mr. Karshner tell mother that he had loved her, and had loved her for quite some time, and wanted to know if she would agree to be his wife, and mother said, ‘Yes,’ she loved him, and -would agree to he his wife. And during dinner Mr. Karshner told me that she had agreed to be his wife and that he would move his things down there the next day. Mother said she loved him and that we would all be happy together.” On the night of .July 11, 1913, Karshner brought his trunk and clothes and occupied the same bed with plaintiff. They continued to occupy the same bed every night’that summer, until witness returned to school at Cedar Rapids. When she came back Christmas, 1913, her mother and Karshner were living at the Cordova Hotel. When, she came home in June, 1914, her mother and Karshner were living at 305 West 13th Street in a flat known as the Kenilworth. Karshner and her mother occupied the same bed at this place until the time he died, July 15, 1916. Witness came home from the academy in the latter part of May, 1916. ' Karshner was there until he was taken to the hospital. When she was away at school, she addressed letters and postal cards to her mother as Mrs. P. D. Karshner, 305 West 13th Street. Cards so addressed, dated March and April, 1915, and April, 1916, were introduced in evidence. Her mother’s mail was addressed to her at that number as Mrs. P. D. Karshner. People called her mother over the telephone as Mrs. Karshner. The bills for household expenses at this place were mostly ordered by her mother and paid for by Karshner. At one time Karshner’s brother was at 305 West 13th Street and Karshner introduced him to her mother, calling her mother, Mrs. Karshner. Karshner’s sister was there for dinner with her brother. Her .name was Mrs. Black. Both he and Mrs. Black addressed her mother as Mrs. Karshner. The Blacks lived in the south part of Kansas City, and her mother visited them at their home. Karshner would occasionally bring business acquaintances to the house. She and her mother would ride out with Karshner and these men, and also go to the hotels and clubs to dine with them. They addressed her mother as Mrs. Karshner. Others, among them Chief Henderson of the City Fire Department, and his sister-in-law and niece, called her mother Mrs. Karshner. They also visited Chief Henderson’s house. Mr. Oglebay, always spoke to her mother when around Karshner’s garage and addressed her as Mrs. Karshner.

On cross-examination, witness stated that she and her mother moved to Chicago in December, 1916. They were there some time, but not ever since. Her mother supported her. Pier mother had a little money after Karshner’s death. Also she sold her, diamonds and worked for Oppenheims’ Typewriting Company in Chicago, Witness did not work, but received money from' her father in Cedar Eapids. Her mother worked at no •place other than Oppenheims for three or four months. They lived at three or four different places in Chicago. Witness visited her father at Cedar Rapids, while her mother was in Chicago; staid there a month. Her father was married again and lived at Cedar Eapids. As to the conversation relating to the marriage contract that she had heard, she said, ‘ ‘ I remember Mr. Karshner said to mother that he loved her, had loved her for some time, and wanted to know if she would agree to be his wife. That is as exact as I can come to it. She said she would agree to be his wife. That was as much as I heard. I didn’t pay much attention to it.” Witness never mentioned that conversation to anyone until she Avas in Mr. Kyle’s office with her mother. It was nobody’s business. She never knew any of the other tenants in the flat at 1425 Central Street. Here witness identified the name Olive Perkins endorsed on a check on the SouthAvest National Bank of Commerce, dated Kansas City, Mo. 5/1/1916, as the handwriting of her mother. It was for $200 and made payable to the order of Miss Olive Perkins. The check was signed by Karsh.ner Motor Car Company, P. D. Karshner. It was marked “paid, May 1, 1916.” Witness continued: They lived at the Washington Hotel when she first became acquainted with Karshner. Her father and mother were separated before their divorce for about three or four years. Her mother called on Karshner at his garage, and took meals Avith him down town in the restaurants, and went around with him to different places in Kansas City, and they were frequently in each other’s company, before her father divorced her mother. From the Washington Hotel, she and her mother moved to the BrunsAvick Hotel. Karshner’s garage was then in the next block to the Brunswick. He called for her to take a ride, but did not come to her mother’s room, while she was there. Prom the Brunswick, she and her mother moved to 923 Penn Street, then moved to the St. John on West 10th Street. While there Karshner used to come over and take her mother out riding with the witness and also alone. That was before her father divorced her mother. Prom the St. John, she and her mother moved to the Wyandotte Hotel. They lived there a year or'two. Karshner called for her mother at the Wyandotte Hotel, just the same as he did at the other places. During all of this time, she and her mother would call on Karshner at his garage. Prom the Wyandotte Hotel they moved to 1425 Central Street, and from there, with Karshner, to the Cordova Hotel. Then they all moved to 305 West 13th Street. Witness got home in May, 1916; Karshner at that time had his trunk at the Bray Hotel, but he never slept there, but had a room there. She and her mother went there twice and called on Karshner. Pie asked them to come up. They went with him after some of his clothes. They took the clothes back to 305 West 13th Street. Witness did not know why Karshner went to the Bray Hotel. “It was some kind of a quarrel or something. ’’ Karshner was a good friend of Oglebay. Karshner’s sister was at their house two or three times. Asked whether witness did not testify before Judge Guinotte (Judge of the Probate Court), that when she came home in May, 1916, she was informed that Karshner was living at the Bray Hotel, she replied,. “Yes;” she guessed that she said that he lived there until he died, but he was at her mother’s apartments quite a bit of the time, and came into her apartments from the rear from his garage, on the afternoon he was taken sick. He came up there to lie down; he was very sick. He staid there a day or two, and then was taken away to the hospital. Witness said she testified before Judge Guinotte, that she and her mother went to the Bray Hotel, because Karshner asked them to come down, just to talk, she did not remember what about. About a week after Karshner died, she and her mother went to the automobile show. Her. mother was dressed in bright clothes and wore a yellow sweater. In Judge G-ttinotte’s court she was dressed in black. That summer, after Karshner’s death, her mother had bought her clothes for the summer, and she could not afford to wear black then, but she bought black for winter. She had some diamonds worth possibly $1,000, Karshner gave her the diamonds; they were all good stones. He also gave her jewelry, and paid for all of her clothing. Before going up to the Bray Hotel, Karshner and her mother and witness had been out to eat together, and they went up and-got some of his clothes and took them home. After May 1st (when her mother got the check payable to Miss Olive Perkins) he lived and slept with her mother as before, up until the time of his death. At this point, the witness identified the signature “Olive Perkins” to the following document and'affidavit, as the signature of her mother:

“This agreement made and entered into this 1st day of May, 1916, by and between Olive Perkins, party of the first part, and Pearl D. Karshner, party of the second part, both of Kansas City, Jackson County, Missouri.
“Witnesseth, that said Olive Perkins has performed certain services in and about keeping house and caring for the said party of the second part; that neither party claims any other right, title or interest in the property of the other, whether real or personal; that they were never married or lived together as husband and wife; that especially the said party of the first part, does not make any other claim against the said party of the second part, except that of the value of the above services rendered by her to said party of the second part, and now in consideration of the sum of two hundred dollars, the receipt of which is hereby acknowledged by the said party of the first part, Olive Perkins, the said Olive Perkins now by this instrument releases said second party, Pearl D. Karshner, from any and all claims of whatever nature and character and now disclaims any claim and forever releases said second party, his heirs and assigns from any claim in the future, that she may now have or may hereafter have against second party.
“Further both parties now, and especially second party denies that first party has any claim against second party, and that second party denies that he is any way under any obligation to first party, but to better adjust any differences that first party claims second party owes her, the party of the first part, from and after the execution of this instrument second party owes ker nothing and that all claims first has against second party is satisfied in full.
“Olive Perkins.
“State of Missouri,
County of Jackson.
“Before me personally appeared, Olive Perkins the party described in the foregoing instrument, and acknowledged that she executed 'the foregoing as her free act and deed, that said Olive Perkins being duly sworn upon her oath says (hat she is not now and never was or claimed to be the wife of the said Pearl D. Karshner.
“Olive Peeicins.
“Acknowledged and subscribed and sworn to before me this 1st day of May, 1916.
“Geo. Hokn'
“Notary Public, Jackson County, Mo.
(Seal)
“My commission expires on the 7th day of March, 1920.”

Continuing, the witness said on re-examination by-Mr. Kyle: That her mother was never employed by Karshner as housekeeper, and that Geo Horn was Karshner ’s lawyer.

A number of other witnesses testified for the plaintiff that Karshner took the plaintiff to several automobile shows in Kansas City and Indianapolis, also to the State Pair at Sedalia, and also to Joplin. At all of these shows, as well as at some parties, which they attended at the hotels and clubs in Kansas City, the plaintiff was introduced by Karshner as his wife, lie also introduced her as his wife to persons he met at Indianapolis, Sedalia and Joplin, or on the cars going or returning from there, and they registered at the hotels in those places as husband and wife. That they were generally reputed, at least among automobile dealers in Kansas City, to be husband and wife. Also that plaintiff told one of Karshner’s employees, and also the manager of one of the apartments where she lived prior to the alleged marriage, that she was married to Karshner; she told them this at the time she lived with Karshner in the Kenilworth Plat. The manager of the Brunswick Hotel, testified, that, while she lived there, she was of good repute. Several witnesses testified that while Karshner and the plaintiff lived at the Cordova Hotel, which was from October 8, 1913, until about May, 1914, when they moved to the Kenilworth' Flat their reputation at the hotel was good, and that they were reputed to be husband and .wife. . Also three or four tenants in the Kenilworth Flat, and their wives, including the negro janitor and the rental agent, testified, ■ that while they lived there, they were reputed to he husband and wife. While at the Kenilworth Flat in 1915, Karshner had an operation performed at the St. Joseph’s Hospital, and he introduced the surgeon .to plaintiff as his wife, and also to a physician who attended his wife two or three times for some ailment which she had. She was also known and had a line of credit as Mrs. Karshner while they lived at the Kenilworth Flat, at different grocery, furniture, clothing and music stores; the bills were charged to Karshner, which he generally, if not always paid. Karshner introduced her to a number of these tradesmen as his wife or as Mrs. Karshner. He also frequently drove over the streets and boulevards of Kansas City with different people to whom he introduced her as his wife.

On the other hand, the .appellant’s evidence showed, that while they lived at 1425 Central Street, which was also a flat, after the date of the alleged marriage, plaintiff told one of the other tenants, that she was Mrs. Perkins and that Karshner boarded and roomed at her house. During this same time, Karshner told a man who had formerly worked for him, that he was not married to the plaintiff, and would not marry her under any circumstances. Also eight or ten employees, who worked for Karshner at his garage, part or all of five years preceding his death, testified, that the plaintiff was never introduced to them as Mrs. Karshner, and was never known or reputed at the garage to be Karshner’s wife, but was always known as Mrs. Perkins, and most of them said that at the garage she was known as a woman of ill-repute. Several of these employees testified that they saw her at places of bad-repute, alone or with other men. Two of them testified that they took her, bach on one occasion, and left her at a house of prostitution, while she lived with Karshner. (But plaintiff’s daughter, Pay, testified in rebuttal, that one of these houses was the home of a respectable woman whom her mother visited). Some of the customers, who knew the plaintiff, complained to one of, Karshner’s employees, because of the latter permitting her to be around the garage. And one customer of Karshner’s branch house in Joplin, who said that he had seen the plaintiff in questionable places in Kansas City with other men, complained to the man in charge there that Karshner should take chances when registering her as his wife at the hotel in Joplin.

On November 19, 1913, Karshner had a room in the Hotel Edward. The clerk of that hotel testified for appellant, that about midnight he was informed that Karsh■ner had a woman in his room. He had registered there alone. The clerk called up Karshner over the liouse telephone, and told him that he would have to dismiss his company, which he did without protest, simply saying, “All right.” Shortly afterwards, the plaintiff stepped out of the elevator, and left the hotel alone. The clerk testified that Karshner was in the habit of bringing women there against the rules, and that on one occasion a woman registered in another room, but was found in his room, and both were dismissed from the hotel. That about a week or two after the time when the clerk reprimanded Karshner on the occasion when plaintiff was there, Karshner again applied for a room in which to take up permanent quarters at the hotel, but the clerk told him that he was an undesirable guest on account of his violating the rules against bringing women there without registering them, but Karshner claimed that he had brought his wife. He told Karshner that that was an old excuse. The clerk did not understand whether by his wife he inferred to the plaintiff, or to the other woman who was found in Karshner’s room on the occasion when both of them were dismissed from the hotel.

Mrs. Llyod, Karshner’s book-keeper, who had been in his employ as such many years, testified that in the latter part of 1915, plaintiff told her that her former husband, Perkins, had married again, and that she felt very badly, as she thought that she could always go back and live with him any time she wanted to, and now she' felt that she was gone. Also the witness Sutherland, constable, who had lived for 32 years at 1316 Central Street, which was within a few feet of Karshner’s garage, testified that Karshner told him that the plaintiff was not related to him, and that her name was Mrs. Perkins.

About the 8th of May, 1916, Karshner engaged a room at the Bray Hotel, which he retained and where he lived, at least part of the time, up until the time he went to the (University Hospital on June 8, 1916. On that day he was taken violently ill at his garage, which was only a few doors from the Kenilworth Plat. He went over there to lie down, and a few hours thereafter was taken to the University Hospital, where he remained until he died, July 15, 1916. The plaintiff accompanied him to the hospital and to the room to which he was taken there. On the next day, he was operated upon for appendicitis, and had a second operation performed about three weeks afterwards. Three nurses attended Karshner during his five weeks’ stay at this hospital. One of them served him only the first day; she testified that plaintiff was only known as Mrs. Perkins at the hospital. The nurse who succeeded her testified that Karshner told her, during the first ten days that he was there, that plaintiff was not his wife and he did not want her to visit him, and for her to tell Dr. Perkins so. She told Dr. Perkins, and Dr. Perkins, a witness for the plaintiff, says, that he interviewed Karshner on the subject, and Karshner told him that he preferred that plaintiff be not admitted to see him. Dr. Perkins also testified that he had seen plaintiff around the garage, and although no one had told him that she Was Karshner’s wife, he knew her as Mrs. Karshner, until the nurse told him she was not. The last nurse who attended Karshner during his illness testified. that Karshner told her that plaintiff was not his wife, and that he did not desire her to see him.

Mrs. Brown was the book-keeper at the hospital, and she made out the entrance slip and said that she received her information from Karshner, which she pnt down on the slip, stating that he was married, his wife was his nearest relative, and his residence was 305 West 13tff Street. Mrs. Brown also testified that, plaintiff was known around the hospital all the time as Mrs. Karshner, until after Karshner’s death There arose a controversy as to the residence put down on a hospital bill. The bill stated, “Residence 305 West 13th Street.” Mr. Horn and Mr. Oglebay called Mrs. Brown’s attention to the matter, that his residence should have been the Bray Hotel, and accordingly she wrote in pencil “Bray Hotel” as the place of residence on the entrance slip, which, however, Dr. Perkins told her to erase, and let the original entry stand. Oglebay testified that Dr. Perkins told him that they received the information on the entrance slip from Mrs. Perkins, the plaintiff, but Dr. Perkins denied this.

The plaintiff visited Karshner at the hospital nearly every day for the first ten days that he was there. She held his hand, smoothed his brow, and called him “dear,” but he was not responsive to her ministrations. On one occasion, he said to her, “How "did you get in here?” After about the first ten days, plaintiff did not call so often, and about the last week of his life did not visit him at all.

After the first ten days, Karshner’s divorced wife, Josie I. Karshner, visited him at the hospital. She came nearly every day until he died. He told the nurses that that he had no objection to her coming. She also told the nurses that the plaintiff was not his wife.

About the 18th of June, his mother, who came from Ohio' to his bedside, to visit him, went to the hospital. When she arrived at his room, the plaintiff was there,' and Karshner introduced her to his mother as Mrs. Perkins. The ^mother was present as a witness and testified at both trials. She said that she had never heard of the ■plaintiff before, never knew that her son had associated with her in any manner, never heard from him or from Mrs. Black, her daughter, or any of the family, that her son lived with or was married to her. That when plaintiff was introduced by Karshner to her as Mrs. Perkins, the plaintiff nodded .her head and said nothing. She never visited her, and plaintiff never invited her to visit her. Her daughter never told her that she had visited plaintiff, but had said that she had visited her brother.

While in the hospital Karshner made his will, in which he gave his mother, naming her, $2,000, Ms brother-in-law, Black, a note of $750 and interest, and a further obligation of $150 and interest, both of which he wished cancelled. The fourth clause of his will was as follows: “Fourth: To my friend George Horn, of Kansas City, Mo., for his services as my attorney rendered me in the past and for such services as my executor may request of him in the settlement of my estate, I give, will and bequeath the sum of $1,000 to him and his heirs forever.” By the fifth clause, all the remainder of his property he gave to his “beloved son, Kenneth M. Karshner,” and stated, “I want it known that I am a single man and unmarried; that my said son, Kenneth M. Karshner, is my only child; that I have no other children or their descendants. ’ ’ The last clause of the will appointed Frank M. Olgebay of Kansas City, Missouri, his executor without bond. The will was duly sighed and witnessed on the 26th of June, 1916, and subsequently duly probated.

, A few days before the will was made, Karshner sent for Oglebay, and showed him a rough draft of a will, which he said he intended to make, and asked Oglebay if he would act as executor, to which Oglebay assented. Oglebay then examined the rough draft of the will, and told Karshner that he ought to write his mother’s name in full. Karshner explained the gift to Ms "brother-in-law, Black, and why- he made it. He also told Oglebay that Horn was his lawyer, and he wanted to give him $1,000 for past services, and' his services for taking care of the estate. Oglebay told him then that he ought to state definitely in the will the terms of his bequest to Horn. Oglebay says he then asked Karshner whether he was married or single, and he said that he was single. He left the rough draft of the will with Karshner, but he afterwards saw it in the hands of Mr. Horn. Oglebay also testified that he had known Karshner, as well as the plaintiff, for some years. Knew plaintiff by sight when she lived with her husband, Perkins. Had known Karshner since about 1908. That he had never known plaintiff as Mrs. Karshner, but always as Mrs. Perkins. That he had never had any talk with Karshner, prior to the conversation he had with him just before making his will, as to whether he was married Or not. That he had bought a number of cars from Karshner, and kept his cars at Karshner’s garage. He never called plaintiff Mrs. Karshner.

Plaintiff opened a bank account May 1, 1916, the date of the $200 check payable to Miss Olive Perkins made by Karshner heretofore mentioned, by depositing $200 in the Southwest National Bank of Commerce. She opened said account in the name of Olive Perkins, and afterwards drew numerous small checks, signed, “Miss Olive Perkins,” until the deposit was exhausted in July, 1916. The deposit slip was produced, and it was admitted to be in the' handwriting of Karshner.

Mr. Horn was present at the hospital when Karshner executed his will, and arranged for the presence of the witnesses. He did not read the will to the witnesses, nor did they see Karshner read it before he signed it. He was very weak at the time, but was able to sign his name. Neither party called Horn as a witnéss in the circuit court. He seems, however, to have been called as a witness by the appellant in the probate court. Plaintiff offered to read the transcript of his cross-examination in the prohate court, hut appellant objected, on the ground that Horn was in Kansas City and plaintiff could subpoena him, if she desired his testimony. This objection was sustained.. Neither Karshner’s brother, who lived in the State of Ohio, nor his sister, Mrs. Black, nor her husband, who lived in Oklahoma, were called as a witness by either party. There is an indication, however, from a question asked one of the witnesses by plaintiff’s counsel/ that Black was present at the trial in the circuit court; and while plaintiff lived with Karshner, the witness testified, Black said she was a woman of ill-repute. The testimony of other witnesses showed that Mrs. Black was present at the trial in the probate court, but did not testify.

Oglebay failed to qualify as executor, Josie I. Karshner was 'appointed in his stead, and she died during this appeal. The cause was revived in the name of \her successor.

Among the grounds urged for a new trial was newly discovered evidence relating to the bad character of the plaintiff for virtue and chastity, both before and after her alleged marriage with Karshner, which grounds were supported by many affidavits. Plaintiff filed one affidavit in opposition, to the effect that her repuation was good while she lived at the Brunswick Hotel.

I. The first question which presents itself, is whether this case is strictly a proceeding at law, so that the finding of facts by the lower court, is binding upon us, as in ordinary law cases tried by the court without a jury, or whether it is in the nature of an equity case, ail(t triable here d& novo. We think it has been settled by this court that such cases are in the nature of suits in chancery and triable as such in the probate court and the circuit court, and de novo as such upon appeal to this court. In Howard v. Strode, 242 Mo. 210, this court held that the distribution and the, settlement of the decedent’s estate were triable by the judge of the probate court, and not by a jury, and that upon appeal, were triable de novo by the judge of the circuit court, and not by a jury. The court said, l. c. 221: “It does not appear that in cases like this the right of trial by jury existed before 1875. It was not given by the common law. There is no statute granting it. We have ruled above that the statutes providing for admeasurement of dower in the circuit court do not apply to the widow’s interest in personalty. The uniform unbroken practice in this State has been to try all controversies growing out of final settlements in the probate court, and concerning the widow’s rights in personalty, by the court without a jury. [Hastings v. Myers’ Admr., supra; McFarland v. Baze’s Admr., 24 Mo. 156; Hayden v. Hayden’s Admr., 23 Mo. 398; Bryant v. McCune, 49 Mo. 546; Cummings v. Cummings, 51 Mo. 263; Dowry v. Bauer, 68 Mo. 155; In re Davis, 62 Mo. 450; Booker v. Armstrong, 93 Mo. 49; Myers v. Myers, 98 Mo. 262; Hitchcock v. Mosher, 106 Mo. 578; Clover v. Holliday, 109 Mo. 108; Clark v. Bettelheim, 144 Mo. 258; In re Estate of Meeker, 45 Mo. App. 186; In re Estate of Danforth, 66 Mo. App. 586.]” (The italics are ours.) See also In re Estate of Schooler v. Stark, 73 Mo. App. 301 and Pearson v. Haydel, 87 Mo. App. 495.

We, therefore, rule that this case was triable and tried as an equity case in the circuit court and is triable de novo in this court.

II. As to the newly discovered evidence urged as one of the grounds for á new trial, to-wit, that plaintiff was of ill-repute and her reputation for chastity was bad, both before and after July 10, 1913, the date claimed as the time of making the contract of marriage between plaintiff and Karshner. Plaintiff contends that this ground is not well taken, because there was evidence at the trial that such was plaintiff’s reputation, and that, therefore, the alleged newly discovered evidence was simply cnmnlative. The record shows much evidence of that character. Merely cumulative evidence subsequently discovered is no ground for a new trial. [State v. Stewart, 127 Mo. 290, and many cases cited in plaintiff’s brief.] We rule this point for the plaintiff.

III. We hold that no inference unfavorable to appellant can be drawn from the failure-to put Horn, Karshner’s attorney, on< the witness stand. Plaintiff was fully possessed of the testimony he would give, because he had been a witness at the trial in the probate court. He could have been called by the plaintiff, had she desired his testimony. Indeed, the burden of proof being upon her (Williams v. Williams, 259 Mo. l. c. 252), it was her duty to have called Horn as a witness. The same is true as to any other absent witness. The burden of calling them was upon the plaintiff.

IV; It is plain from the statement of facts, that Karshner and the plaintiff sustained illicit relations long before July 10, 191.3, when it' is alleged the common-law contract of marriage was entered into between them. Under such circumstances, the law is well settled that their meretricious relation is presumed to continue, and the burden of proof is upon the plaintiff to satisfy the conscience of the court that a new, real relationship of husband and wife was thereafter by mutual agreement in good faith entered into between them. [Cargile v. Wood, 63 Mo. l. c. 514.]

Y. This court has frequently had occasion to define, and at this late date it would seem that it should be definitely settled, what constitute the elements of a marriage contract in this State. A short definition, which we again approve, is found in State v. Cooper, 103 Mo. l. c. 273, where we said: “To constitute a valid marriage, either under the statute or at common law, there must be, first, one man and one woman capable of contracting; second, they must enter into a contract by which they assume the relation of husband and ivife for their joint lives, and they must both understand that neither, one, nor both, can rescind the contract or destroy the relation.” (Italics are ours).

YI. The question this court has to decide is, therefore, whether the plaintiff has overcome the presumption against her, and proved,* to the,satisfaction of the court, that after their illicit relations were commenced, she and Karshner entered into a marriage contract, having the elements above mentioned, in good faith. [Cargile v. Wood, supra.] This is to be determined by a consideration of all the facts and circumstances before the court. The only direct testimony is that of the plaintiff’s daughter, who was then but thirteen years old. She casually overheard part of a conversation between Karshner and her mother, who were in an adjoining room. She says she paid no particular attention to it, that it was nobody’s business, and never mentioned it thereafter to any one, until this suit was brought or contemplated three or four years thereafter, when she mentioned it to plaintiff’s attorney. So that, the only witness to this marriage contract was an unheeded, unheeding and uninvited child, who paid no particular attention to the words used, and thought so little of it afterwards that she never mentioned it to any one, until this suit was contemplated. She, too, now grown apace, is an interested witness, vitally concerned in the outcome of this suit. Her testimony, if it stood alone, would be a frail structure, too weak to support the burden of proof, which the law, under the circumstances, casts upon the plaintiff. But that plaintiff and Karshner never intended to enter into a marriage contract by any words-that they used at that time, if any were used, is shown by the great weight of the testimony and facts and circumstances in the record. In the first place, the record shows that neither of them had any special regard or respect for the marriage relation. Both of them had disregarded, as of little or no consequence, their marital obligations to their previous spouses. They cast them aside, “as a huntsman his pack.” We also find from the evidence that both of them thereafter had illicit' relations with others, and thus interpreted their own relations as if no marriage .existed between them. Nor was there thereafter a general holding out by them, and a general reputation of living together as husband and wife. At Karshner’s garage where, of all places, their real relations would have been most intimately known, and would have been most truthfully declared, they were not known as husband and wife, and did not claim to be. The great weight of the evidence is to that effect. At 1425 Central Street, where it is claimed their contract was made, they were not reputed to be, and did not hold themselves out at all' as husband and wife, so far as shown by the evidence. But while at that place, we find that both denied that they were husband and wife. While they lived at the Cordova Hotel, their reputation among the people at that hotel was that they were husband and wife. But that was a respectable place where they could not have lived at all, had they not so represented themselves. Even while living there, November 18, 1913, Karshner dismissed the plaintiff from his room at the Hotel Edward, after midnight (and neither of them protested) on the charge by the clerk, that Karshner had a woman in his room, contrary to the rules, and 'demanded that Karshner dismiss her.

The next place at which they resided was the Kenilworth Elat, where their repute, as to whether or not they were husband and wife, was divided. Among tradesmen, .with but one exception, they were generally known as husband and wife. When they appeared together in public places, such as automobile shows or parties, or at the clubs or hotels, or at hotels where they stopped together outside of Kansas City, they did represent themselves as husband and wife. These were all public places, and little weight is to be given to this testimony, because^ as said in Williams v. Williams, 259 Mo. l. c. 252: “Their being able to find lodgment there undoubtedly depended upon the impression given out by them that they were married.” So, plaintiff’s getting a line of credit among the tradesmen depended on being represented as Karshner’s wife. Plaintiff’s statement to Mrs. Lloyd in 1915, that she felt badly because her former husband, B. F. Perkins, was married again, for she always thought that she could go back to him any time she wanted to; also Karshner’s statement in the same year to the witness Sutherland, that plaintiff was no relation of his, but that her name was Mrs. Perkins, show that there never had been any bona-fide change in their original illicit relations up to that time. So, his own mother never heard of his being married to plaintiff. Without going into further details, which are referred to in the statement of the case, up to the 1st day Of May, 1916, and after the alleged contract of marriage, their repute and holding themselves out as' husband and wife, was not uniform or general, but was divided, fragmentary and in spots. A “mottled” repute and holding out is not sufficient to prove the matrimonial state. “Such repute does not meet the stringent requirements of the law.” [Bishop v. Brittain Inv. Co., 229 Mo. l. c. 730.] “If there is a conflict in the repute, it will not establish the marriage.” [Gantt, J., In Topper v. Perry, 197 Mo. l. c. 548.] In Cargile v. Wood, 63 Mo. l. c. 514, this court said: “When the connection is illicit in its origin, the presumption is that it is likely’ to continue so, and if it is alleged that it was subsequently changed, it must be shown at what time it became lawful. [Clayton v. Wardell, 4 Const. 230.] ‘When the connection was at first notoriously illicit,’ said Lord Eldon in Cunningham v. Cunningham, (2 Dow. P. C. 482), ‘and a change in the character of the connection must be operated, and the means employed for that purpose are such as to leave half the world in donbt as to the relations, one-half thinking one way and the other half the other, at what time, in what circle, conld it be said that there was such a habit and repute as raised the presumption that the parties hdd mutually consented to ’be husband and wife? He could not admit that mere cohabitation as man and woman was a cohabitation as husband and wife.’ ”

It cannot be said, therefore, that the evidence as to the relations of these parties prior to May 1, 1916, standing alone, established the existence of the marital relation at that time.

VII. But we hold, that all the facts and circumstances, all that was said and done by the parties, until Karshner’s death, must be considered.

On May 1, 1916, appears the first written evidence of the relationship between the parties. On that day, Karshner gave plaintiff a check for $200, payable to Miss Olive Perkins, which she endorsed as “Miss Olive Perkins,” and either that check, or the money from it, was deposited by her or Karshner in the Southwest National Bank of Commerce in the name of Olive Perkins. She drew checks on this account signed, “Miss Olive Perkins,” until it was exhausted, the last cheek being July 14, 1916. The deposit slip opening the account was in Karshner’s handwriting. On the same day, she signed a document stating she had, in effect, been simply Karshner’s housekeeper, aud claimed no right in his property; that they were never married, and never had lived together as husband and wife, and that in consideration of $200, the receipt of which she acknowledged, she released Karshner from all claims and demands. She not only signed this document, but at the same time signed-an affidavit written on it, stating that her signature to the foregoing instrument was her free act and deed, and that “she is not now and never was or claimed to be the wife of said Pearl D. Karshner.”

About May 8, 1916, Karshner engaged a room at the Bray Hotel, and took his trunk and clothes there, and plaintiff remained at the Kenilworth Flat. But there is evidénce that they visited each other and plaintiff’s daughter testified, that they slept together every night until he was taken to the hospital from the flat on June 8, 1916. There is, however, other testimony that he, at least part of the time, slept at the Bray Hotel. The suggestion of learned counsel that these parties could not divorce themselves by this document and affidavit of May 1 st, implies that said papers were made for that purpose and that the parties thought that they could thus divorce themselves. If they had a contract, as to living, together, believing that they themselves could thus dissolve it, such contract was not a marriage contract at all. If they believed they had thus dissolved a marriage contract, they intended to cohabit together illicitly thereafter, because plaintiff’s own evidence shows that they did cohabit together thereafter, if not the same, yet substantially, as they did before. The obvious fact is, that transaction of May 1st simply shoy?s that these parties had lived together and intended to continue to live together, wheneve'r they felt so disposed — out of wedlock.

VIII. On his arrival at the hospital June 8th, 1916, Karshner or plaintiff gave the information put on the entrance slip, that his residence was 305 West 13th Street (Kenilworth Flat), that he was married and that his wife was his nearest relative. But shortly there- , after he told the nurses that plaintiff was not his wife, and that he did not care to see her, and although she visited him frequently during the first ten days of his stay at the hospital she was an unwelcome guest. He also introduced the plaintiff to his mother who came from Ohio to his bedside, as Mrs. Perkins, and plaintiff made no protest, but nodded her assent thereto. His mother had never beard of her before, nor that he was married again.

When Karshner began to feel that the end was near, he called for his friend Oglebay and showed Oglebay a rough draft of his will and spoke of the provisions in it. Oglebay asked him if he was married and he said he was not. His will was duly executed a few days thereafter, June 26, 1916, and after making a devise to his mother, his attorney and his son, he then states in his will: ‘ ‘ T want it known that I am a single man and unmarried; that my son Kenneth M. Karshner is my only child; that I have no other children or their descendants.”

Thus, under the most solemn circumstances, did Karshner declare that he had never entered into any marriage contract- with the plaintiff. So that, the evidence shows that both the plaintiff, she under oath, and Karshner, with death waiting for him at the door while he wrote, revealed in writing in the most impressive manner possible, and clearest of terms, that their relationship to each was.not that of husband and wife, and never had been.

We must rule, that the judgment below should be reversed with directions to the circuit court to render a judgment for the defendant, appellant here, to the effect, that plaintiff is not the widow of the decedent, and her' applications for allowances, or a share in his estate as such widow, should be denied.

It is accordingly ordered.

Broivn and Ragland, (7(7., concur.

PER CURIAM:

The foregoing opinion of Small, C., is adopted as the opinion of the court.

All of the judges concur, except Woodson, J., absent.

ON MOTION FOR RE-HEARING-.

PER CURIAM:

A. motion for re-hearing has been filed, urging, amongst other things, that this court has no jurisdiction of this appeal, because the amount involved does not exceed $7,500, and, therefore, appellate jurisdiction is vested in the Kansas City Court of Appeals. As our original opinion shows, the judgment upon the trial of plaintiff’s claim for the widow’s absolute property under the statute was also, by agreement of the parties, to determine her status as widow in the other claim she filed under the statute for one-half of the personal property of the deceased, upon final' distribution. Consequently, the trial below, which required no special form of pleading, having originated in the probate court, was for all purposes, as between the plaintiff and the administrator, who held the title of the personal property of the estate, to determine plaintiff’s status as widow, or not the widow, of Karshner under both claims filed by the plaintiff. The judgment of the lower court was rendered in pursuance of such agreement. Such judgment was not that plaintiff recover a certain sum as her absolute property as widow, under the claim filed for such absolute property, but that plaintiff “was at the death of the deceased, his wife, and entitled to receive such share or portion of his estate as is made and provided by the statutes of Missouri.” It was the widow’s right in the Karshner estate under both claims filed by the plaintiff and under all statutes of Missouri, which was submitted to and adjudged by the lower court, and from which judgment the appeal to this cburt was taken. It is the value of such right, therefore, which determines our jurisdiction. The record shows, that both parties admitted below, that the personal property of the Karshner estate exceeding $20,000 in value. The probate records introduced, showed the personal property to be worth over $30,000 in value. There is nothing showing any indebtedness, except a judgment for $80 per month in favor of Josie I. Karshner, for support of Karshner’s minor son, Kenneth. Mrs. Josie I. Karshner died since this case was brought to this court. Therefore, the amount involved in this controversy is one-half of the value of the personal estate, besides the widow’s absolute, property. It is plain, that this amount exceeds $7,50*0, and that this court has jurisdiction of the appeal.

We have also carefully considered the other grounds presented in the motion for re-hearing and the brief in support thereof, but find nothing therein calling for any modification of our original opinion.

Respondent’s motion for re-hearing is accordingly overruled.

All concur, except Woodson, J., absent.


author: GOODE, J.

text:
    JOSEPH W. STEELE v. THOMAS L. REID et ux., Appellants.
    Division One,
    July 19, 1920.
    1. FRAUDULENT CONVEYANCE: Foreign Homestead: For Another’s Benefit. The exchange of a Kansas homestead, exempt from execution, in part payment for Missouri property, deeded to the liomesteader’s wife, does not render the Missouri property immune from liability for his debts, if he was the real owner and she only the holder of the title for him; for the immunity of the Missouri property, acquired subsequent to a debt owing by him, from liability for that debt, depends on whether, in truth, she was not only the holder of the legal title, but held it for her own benefit, and not for his, and that question, in turn, depends on the good faith of the transaction between them.
    2. -: -: -: Antecedent Debt. The fact that the homestead in another state was not subject to execution for the homesteader’s debts under the laws of that State, will not save a Missouri homestead, for which the foreign homestead was exchanged, from execution to pay his antecedent debt; and where in the exchange of the two properties the Missouri property was deeded to the homesteader’s wife, as the foreign homestead had been, the question still remains whether the'foreign homestead was put in the wife’s name in order to constitute her the real and beneficial owner, or whether the conveyance to her was colorable and made with the purpose and understanding that he should continue the beneficial owner, and with such an arrangement in force the property was traded for Missouri property a,nd the title taken in her name with the same understanding and purpose. If the conveyance to her was only colorable, and he paid for and became the real owner of the Missouri property, and the title was put in her name only to prevent his creditors from collecting debts he owed, the property is liable to execution to pay his debts existing at the time it was acquired.
    3. -: Creditor’s Bill: No Execution. Ordinarily, before a credit- or’s bill can be maintained by a judgment creditor; he must show he had exhausted his remedy at law by taking out an execution on his judgment and that it had been returned unsatisfied because of lac.k of property whereon to levy; but an exception is allowed to the rule, upon proof that it would have been useless to issue execution because the debtor owned nothing that could be reached by it; and where the evidence shows that the defendant debtor owned nothing in his own name, except some land in another state, the creditor’s bill to have a conveyance made to his wife declared to be in fraud of his creditors and to subject it to the payment of his judgment debt, will be entertained. 1
    4. --: Judgment Lien: After Three Years. A judgment creditor is entitled to execution and levy on the defendant’s property at any time within ten years, and a purchase of property more than three years after the date of the judgment does not bar the right of the creditor to have the conveyance to defendant’s wife set aside as made to her to defraud the plaintiff and the property subjected to the payment of the judgment.
    Appeal from Jackson Circuit Court. — Ron. Clarence A. Burney, Judge.
    Affirmed.

      James A. Kemper for appellants.
    (1) The Osage City Hotel property was the homestead of T. L. Reid and family, on and prior to the 1st day of March, 1915, and as such was free from the judgment lien and exempt from the levy of execution in favor of any judgment creditor within or -without said jurisdiction. ■ It was property in which creditors had no interest whatever, which the law could not touch, limit or restrain, and the owner, T. L. Reid, could alienate the same hv gift or by sale, at will. Winter v. Ritchie, 57 Kan. 212; Roser v.. Bank, '56 Kan. 129; Wilson v. Taylor, 49 Kan. 774; Hixon v. George, 18 Kan. 253; National Bank v. Kopplin 42-Pac. 263; Reed v. Nicholson, 186 Mo. 404; Pocoke v. Peterson, 256 Mo. 501; Balz v. Nelson, 171 Mo. 690; Rose v. Smith, 167 Mo. 86. (2) Being the owner of the fee of said hotel property, Mae N. Reid had absolute and unrestricted authority to alienate . the same without regard to the rights of any creditors of T. L. Reid; and if the Osage City Hotel property became the property of Mae N. Reid, the transaction by which it was conveyed to her by T. L. Reid was not fraudulent, and Mae N. Reid, could alienate the same. Winter v. Ritchie, 57 Kan. 212; Roser v. Bank, 56 Kan. 129; Wilson v. Taylor, 49 Kan. 774; Hixon v. George, 18 Kan. 253; National Bank v. Kopplin, 52 Pac. 263; Reed v. Nicholson, 186 Mo. 404; Pocoke v. Peterson, 256 Mo. 501; Balz v. Nelson, 171 Mo. 690; Rose v. Smith, 167 Mo. 86. (3) Being the owner of the fee to said property, free from fraud, Mae N. Reid was fully authorized to exchange the same for the Haddon Hall property in Kansas City, and it is immaterial that the transaction of exchange was in part conducted by T. L. Reid, as her agent, any more than had she been represented by an outside and wholly theretofore disinterested party. Reed v. Nicholson, 189 Mo. 396. (4) Haddon Hall, being the property of Mae N. Reid, is in no -way liable for the debts of T. L. Reid contracted before Mae N. Reid acquired said property, any more than would property acquired by her at said time in which T. L. Reid had never had any interest whatever be liable for said debts. Reed v. Nicholson, 189 Mo. 396; Bebb v. Crowe, 18 Pae. 225; Hoffman v.-Hill, 28 Pac. 624; Rush v. G-ordon, 16 Pac. 700, (5) Had the title of the Kansas homestead rested ■*én T. L. Reid, upon exchanging the same for property in Missouri taking the title in the wife, would not be in fraud of creditors, and the same could be held by the ' holder of the title thereof free from levy and sale for prior existing debts of the owner of the Kansas homestead property. Stinde v. Behrens, 81 Mo. 254. (6) Respondent cannot maintain this action and cannot recover for the reason that it is not pleaded and the evidence fails to show that an execution had been issued upon plaintiff’s judgment and returned unsatisfied; but. it affirmatively appears from the evidence that such was not done. Brown v. McKown, 265 Mo. 320. (7) Judgment ceased to be a lien at the expiration of three years after the same was obtained and respondent has no such ¡interest in Haddon Hall — having no judgment lien against the same. Kegan v. Haslett, 128 Mo. App. 293; Larimore v. Tyler, 88 Mo. 661; Sublet! v. Railroad Co., 96 Mo. App. 113; McLaughlin v. McLaughlin, 16 Mo. 242.

      Walter W. Galvin for respondent.
    (1) The testimony established the.fact that Thos. L. Reid was, for a long time prior to the trial of this cause, as well as at the time of the trial, insolvent; and appellants’ contention that an execution should have been issued upon the judgment in question, as a condition precedent to the maintaining of this action, must be ruled against them. Sec. 2133, R. S. 1909; Zoll v. Soper, 75 Mo. 460; Davidson v. Dockery, 179 Mo. 687; St. Francis Mill Co. v. Sugg, 169 Mo. 130; Klauber v. Sehloss, 198 Mo. 502; Wilson v. Salisbury, 167 Mo. App. 191; Commercial State Bank v. Ankrum, 191 Mo. App. 251. (2) Neither was respondent required to institute .an action in a court of equity to have the conveyance in question set aside as a consummated fraud. He also had the right, and as he did, to institute an action to set aside the conveyance in question as fraudulent as to him, or to the extent of his judgment; which, being done, he could thereupon have execution issued upon his judgment, and the realty sold to satisfy the same. Spindly v. Hyde, 247 Mo. 32. (3) A new homestead, acquired with the proceeds derived from the sale of an old one, refers wholly and exclusively to Missouri homesteads; and, the law does not permit one to sell a homestead in another State and with the proceeds derived therefrom acquire a homestead in this State, with the result that exemption rights would attach to the latter. Sec. 6712, R. S. 1909; Bank v. Dougherty, 167 Mo. 1; Kennedy’s Admr. v. Duncan, 157 Mo. App. 212. (4) The record is replete with testimony justifying' the conclusion of the court that the conveyance in question was a fraudulent one. Moreover, fraud need not be proved by direct testimony; and, in transactions between husband and wife, slight evidence thereof is sufficient. Sec. 2881, R. S. 1909; St. Francis Mill Co. v.- Sugg, 206 Mo. 155; First Natl. Bank v. Fry, 216 Mo. 42. At least a portion of the consideration for the conveyance of the Everest Hotel by Thos. L. Reid, to Mae N. Reid, being fictitious, rendered even that conveyance voidable at the instance of respondent. Klauber v. Schloss, 198 Mo. 502; Bates County Bank.v. Gailey, 177 Mo. 181; State ex rel. Robinson v. Hope, 102 Mo. 410. (5) In any event the conveyance of Haddon Hall to Mae N. Reid had the effect of hindering and delaying the creditors of Thos. L. Reid; and for that reason that conveyance must be regarded as fraudulent. Kurtz v. Troll, 86 Mo. App. 649; McCollum v. Grain, 101 Mo. App. 522; Kurtz v. Troll, 175 Mo. 506; Klauber v. Schloss, 198 Mo. 502.
   GOODE, J.

This plaintiff, on February 20, 1912, recovered a judgment in the Circuit Court of Jackson County, Missouri, against Thomas L. Reid for the sum of five hundred dollars, and the judgment bore interest from that date at the rate of six per cent per annum. The present action was brought against said Thomas L. Reid and his wife, Mae N. Reid, to set aside a conveyance executed December 30, 1916, by J ames T. Broughal and his wife, Annie L. Broughal, which conveyed to defendant Mae N. Reid Lots 1 and 2 (except that part taken for streets) in Roseland, an addition to Kansas City, Missouri, and subject said premises to the levy of an execution issued to collect plaintiff’s said judgment. On the lots is a large three-story building called Haddon Hall, and used for an apartment house where the tenants are given meals. The relief plaintiff seeks is asked upon allegations that the conveyance of the property to Mae N. Reid was for a- consideration paid entirely by Thomas L. Reid, who had the title put in her name, for the purpose of delaying and defrauding his creditors, including the plaintiff, and that Mae N. Reid was cognizant of the facts and participated in that purpose. The answer admits plaintiff obtained a judgment against T. L. Reid as alleged in the petition, and that the judgment bore interest from its date; denying all other allegations. For further defense the answer stated that on December 18, 1916, (the date when the contract for the 'purchase of the aforesaid premises from Broughal and wife was made), and for years prior thereto, the defendants were husband and wife and resided in Osage City, Kansas, where they owned and occupied as a homestead, Lots 1, 3, 5, 7, 9, 11, 13 and 15, in Block 4, of Dodd & Boyds’ Addition to Osage City, and improvements thereon; that those lots comprised less than one acre and as the homestead of defendants the premises “were free from the lien of any judgment and exempt from liability for any indebtedness due from the said T. L. Reid, under Section 3440, Revised Statutes 1909, of the State of Kansas;” that while the said lots were occupied by defendants as a homestead, and on March 1,1915, defendant T. L. Reid conveyed them for a valuable consideration to Mae N. Reid; that on December 18, 1916, Mae N. Reid negotiated with James T. Broughal and Annie L. Broughal an exchange of the aforesaid homestead for Lots 1 and 2 (except that part taken for streets) in Roseland Addition to Kansas City, Missouri; that the negotiation terminated December 30, 1916, in the aforesaid deed of that date made by James T. Broughal and his wife, conveying to Mae N. Reid said Lots 1 and 2 in Boseland Addition to Kansas City; that in said transaction Mae N. Beid acted in good faith, without intention to defraud. Plaintiff joined issue as to the new matter in the answer by a replication in the form of a general denial.

The court below found the conveyance of the Broughals of said lots in Boseland Addition was made to Mrs. Beid for the purpose of hindering, delaying and defrauding the creditors, including plaintiff, of T. L. Beid; that the conveyance rendered T. L. Beid insolvent; that the -real estate mentioned in it was the property of defendant T. L. Beid, subject to incumbrances existing thereon prior to the date of the conveyance to Mae N. Beid, and in equity and good conscience his interest should be subjected to the payment of plaintiff’s judgment. It was accordingly considered and adjudged that said deed be set aside and for naught held against the plaintiff; that unless T. L. Beid should within ten days from the date of the decree to set the deed aside, satisfy plaintiff’s judgment against him, which then amounted to $682.23, together with the costs of the action, the premises should be' sold by the sheriff, subject to the incumbrances of record and that execution should issue accordingly.

Prom that decree the present appeal was prosecuted.

Defendant T. L. Beid, for seven or eight years, possibly longer, previous to 1916, had been engaged in trading for hotels at different places, conducting them for a time, then exchanging them for farm lands or for other town property. During that period he owned hotels in the towns of Anthony, Yates Center and Osage City, Kansas, and in the towns of Pulton, Mexico and Kansas City, Missouri. He owned the Dyldngton Inn in Kansas City and traded it for land in Chariton County, Missouri; owned the New Palace Hotel in Pulton, which he exchanged for from six to eight hundred acres of land in Vernon County, valued by him at $60 an acre, and incumbered for about $8,000. As to the quantity of this tract of land, the testimony of plaintiff is contrary to that of the agent who made the exchange; for plaintiff says there were six hundred and the agent that there were eight hundred acres; at any rate it was priced at $48,000. The Palace Hotel in the trade was valued at $42,000. This land was afterwards exchanged for property in Kansas City called the Flourdell Flats. The defendant testified there was a mortgage on the flats which was foreclosed, thereby cutting off his equity of redemption; and he says in those trades he lost $30,000, about all he had, except two sections of land thirty-five miles from San Antonio, Texas, and of their value he declared he had no opinion. Some time during the years mentioned, he owned the Woodson Hotel at Yates Center, Kansas, conducted it for a while and then exchanged it for a ranch in the vicinity of Yates Center, where his first wife owned a residence. After disposing of the hotel in that town for the ranch, he acquired the Everett Hotel premises and furniture in Osage City, which hotel stood on the aforesaid Lots 1, 3,5, 7, 9,11,13 and 15 in Block 4, in said Osage City, the premises alleged in the answer to have been exempt from execution for debts of defendant T. L. Reid, and which were exchanged for the property in Roseland Addition to Kansas City, known _ as Haddon Plall. The facts we have related are only relevant to the present case as tending to prove Mr. Reid had possessed considerable means shortly before the Haddon Hall property was acquired, and the inference may be drawn that part of his means went into the consideration for' said property. The title to the lots in Osage City was conveyed to T. L. Reid, January 12,1911, but that deed was not recorded until February 24, 1915; Reid said, because it was in escrow until he paid the purchase money; but in fact there was a mortgage still on the property when he traded it for Haddon Hall. Although the title was taken in his name, he testified most of the purchase price of the Osage City premises was paid by his first wife out of the proceeds of the residence she owned in Yates Center and some insurance money that came to her or to him from insurance on her life. This matter was indefinitely stated. He spoke- of having paid something himself on the Osage City property with money he “got around,” and again of contributing to the price from the proceeds of notes he held and collected. Just how much he contributed his testimony left uncertain. A week after the deed of the Osage City premises to Reid had beén filed for record, he conveyed the property, including the furniture in the hotel, to his present wife Mae N. Reid, whom he married November 25, 1912, his first wife having died about a year before that date. Just prior to said conveyance plaintiff was endeavoring to collect his judgment ; was trying to force or induce Reid to pay it. The consideration mentioned in the deed from T. L. Reid to Mae N. Reid was nine thousand dollars; yet the testimony of both of them shows that at most she did not pay more than $3500. Explaining why this conveyance was made, the two defendants s'aid T. L. Reid owed a bank $2800, which was secured by a mortgage on the furniture in the hotel; that there was an incumbrance on the real estate of about $3000; that the bank was pressing Reid on these debts and Mrs. Reid was willing to come to his relief if the hotel premises and furniture were transferred to her; that Reid transferred the title to her to get help and she advanced the money to pay the debts for which he was being pressed. According to Mrs. Reid’s testimony the Osage City property at the time the conveyance'was made to her, was worth $19,000, including the value of the furniture.

Mrs. Reid, who had resided in Kansas City, -wished to return there; so Mr. Reid began a correspondence with George Haslam, a real estate agent in Kansas City, with the view to having Haslam effect a trade or sale of the hotel and premises in Osage City. This correspondence ran from October 9, 1916, to December 30, 1916, the date of the exchange of the Osage City premises for Haddon Iiall, in Kansas City. Iiaslam brought about the transaction with the Broughals, and in the exchange of properties between them and the defendants, the Haddon Hall premises were valued at $75,000, the Osage City property was accepted as part of the price, the Broughals assuming the incumbrance of $3-900 on the lots and hotel, and a chattel mortgage on the furniture of $2500, -or $6400 in all. The Reids assumed a mortgage of $20,000 on Haddon Hall and one of $2500 on the furniture therein, and agreed to give the Broughals a second deed of trust on the premises for $25,000, payable in stated installments. In the transaction between Haslam and T. L. Reid, nothing was said about Mrs. Reid being- the owner of the property in Osage City; but before the transaction was closed, Mrs. Reid inspected Haddon Hall, the terms of the deal were submitted to her, and she was a party to the preliminary contract entered into December 18, 1916, which was followed by the deed made to her on December 30, 1916. Reid conducted the hotel in Osage City in his own name, had taken out. the license in his own name, and after the exchange he managed Had-don Hall the same way; but he deposited the money taken in partly in one bank in the name of his wife, and partly in another bank in the name of his daughter. This daughter was the child of his first wife, and the testimony inclines to show Reid Avanted the title taken in a way to protect what he considered to be his daughter’s interest, on account of her mother having invested in the Osage City property the proceeds of the residence in Yates Center and the insurance money; Avherefore he thought the daughter had inherited an interest in the Kansas property which entered into the consideration for the Haddon Hall premises. It seems Reid wanted the title to those premises to be placed in his wife and daughter, but yielded to advice to put it in the name of his wife only. He testified vaguely as to an understanding with his Avife to protect his daughter’s interest and to a writing having been signed by Mrs. Reid for that purpose.

I. The principal defense relied on is that the Everett Hotel premises in Osage City, Kansas, conveyed by Reid to his wife on March!, 1915, was a homestead and as snch exempt generally from liability for 0f and, therefore, the conveyance conld not be in fraud of plaintiff as a judgment creditor. Further, that said property being, exempt from liability to his creditors when Reid conveyed to his wife; after it was exchanged for the Haddon Hall premises in Kansas City, the latter property enjoyed the like exemption.

The statute of Kansas appealed to in support of this defense, reads as follows:

“A homestead to the extent of one hundred and sixty acres of farming land, or one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owmer, together with all the improvements on the same, shall be exempted from forced sale ■under any process- of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided,' The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.” [R. S. Kan. 1909-, sec. 3646; erroneously cited in the answer as Sec. 3640.]

The plaintiff does not controvert the proposition that the Kansas hotel property was Reid’s homestead, and as such exempt, under the cited statute, from the levy of execution for plaintiff’s judgment. Construing that statute the courts of Kansas of appellate jurisdiction, have repeatedly held a debtor can work no fraud on his creditors by disposing of his homestead, for the reason that it is not subject to execution for their debts. Discussing the question in Hixon v. George, the Supreme Court of Kansas said that if George, a debtor, had owned any interest in the property there in controversy, he would have had the power, with the consent of his wife, to transfer his interest to any person he chose and for any consideration, or none, and no creditor would have the right to complain; that such a transfer would not have been a fraud upon the rights of the plaintiffs, for “a debtor cannot commit a fraud upon his creditor by disposing of property ‘toward which the eye of the creditor need never be turned.’ ” [18 Kan. 253, 260.] In another ease, in passing upon the exclusion of evidence to show a homestead had'been conveyed with the intent to prevent the collection of a judgment, the court ruled the evidence was immaterial, because if the land was the debtor’s homestead, he might deal with it as he pleased, regardless of his creditors. [Wilson v. Taylor, 49 Kan. 774.] And it was held, in a case where a judgment debtor who owned a homestead and desiring to change his place of residence, had traded said homestead for an incumbered tract of land, intending to occupy the land only until he could dispose of-it and with the proceeds buy a home in another town, this tract of land was exempt from the levy of an execution to collect a judgment against the debtor, because the land was traded for as an incident in the process of acquiring a new homestead. The court said: “No liens attached to the homestead which was traded for the land, and the exchange and the loan were all parts of a transaction designed to transfer the home from Eureka to Fort Scott or Wichita, . . . It is well ¡settled that one homestead may be exchanged for another free from any claim of creditors upon either. A debtor cannot commit a fraud upon his creditor by disposing of his homestead. ” [Winter v. Ritchie, 57 Kan. 212, 214.]

In view of those decisions and others like them, decided by the Kansas courts of review, the transfer by Reid of the title to the Osage City premises and the furniture in the Everett Hotel, situated on them, to his wife on March 1, 1915, was a valid transfer and not in fraud of plaintiff, no matter what the purpose of the parties was; because, if the transfer was merely color-able and Reid remained the real owner, the homestead was exempt, in his hands, from liability for his debts.

But although the Kansas homestead was traded in as part of the price of the Haddon Hall premises in Missouri, the same rule does not govern in respect of the immunity of said premises from liability for Reid’s debts, if he was the real owner and Mrs. Reid only the holder of the title for him. The immunity of the premises acquired in this State subsequent to the debt Reid owed the plaintiff, from liability for that debt, depends on whether, in truth, Mrs. Reid was not only the holder of the legal title, but held it for her own benefit and not for her husband’s; and this matter depends, in turn, on the good faith of the transactions between them. The element of good faith, that is, of whether the Kansas homestead was put in Mr. Reid’s name in order to constitute her the real and beneficial owner of it, was immaterial upon the question of the exemption of that property from liability for Reid’s debts, because it was equally exempt, whether he or she owned it. But if the conveyance he made to her was colorable and made with the purpose and understanding that he should continue the beneficial owner, and with such an arrangement in force, it was traded for the Missouri property, the title to which was taken in her name with the same understanding and purpose, Reid paid for and became the real owner of the latter property. If those were the. facts, the decision of this court in State Bank v. Dougherty is directly in point. Dougherty was in debt to a bank which obtained a judgment against him. When the debt was incurred, Dougherty owned a farm in Iowa, which he sold later and invested part of the price in a farm in Barton County, Missouri, moved with his family from Iowa on the tract and occupied it as a homestead. The L'owa land, with the proceeds of which the Barton County land had been purchased, was Dougherty’s homestead and exempt from liis debts; and the contention was that having- been thus purchased, the Barton County land enjoyed the like exemption; In support of that proposition it was asserted Section 3623 (R. S. 1899; now Sec. 6712, R. S. 1909) protected the Barton homestead from execution. The purport of the section was that when the head of a family had acquired a new homestead with the consideration derived from the sale or other disposition of a prior one, the new one should “not be liable for causes of action against it for which such prior homestead would not have been liable;” but that after the exchange the prior homestead should be liable for the debts. The decision was that as the plaintiff’s cause of action had accrued before Dougherty, acquired the Barton County homestead. and before his deed was filed for record, it was subject to the plaintiff’s execution; that the exemption contemplated by Section 3622 ( 3623?) only applied when the prior homestead, with the proceeds of which the second one was obtained, was in Missouri, so that the provision of the statute that the prior homestead should be liable for the debts of its former owner in lieu of the new one, would govern; that the statutes of Missouri had no extraterritorial force, and were inapplicable unless both homesteads were located in this State. The opinion declared our statutes had nothing to do with the prior homestead in Iowa; for the Legislature would never have attempted to subject a homestead in Iowa, or any other state, to a housekeeper’s debt, or make the liability of a subsequent homestead in Missouri depend on the liability of a previous one in another state. It follows from the doctrine thus declared that if, as the court below found, Reid was the real owner of Haddon Hall, plaintiff had a right to proceed against it to collect his judgment. [State Bank v. Dougherty, 167 Mo. l.]

If the transactions between the defendants were bona-fide — if the Nansas homestead was given or sold to Mrs. Reid to transfer the beneficial as well as the nominal title to her — the decision in Stinde v. Behrens, 81 Mo. 254, invoked by defendants, would be controlling. Behrens and his wife had occupied as a homestead a property in" Atchison, Kansas, the title being in Behrens, the husband. Later he became indebted to Stinde, and while so indebted he and his wife exchanged said homestead for some lots in the City of Carondelet, Missouri, and had the title to those lots conveyed to the wife Wilhelmina Behrens. Stinde having recovered a judgment for his debt against Behrens, took out an execution, under which the Carondelet lots .were sold and bought by Stinde, who then sued to have the conveyance to Wilhelmina set aside as having been made in fraud of the creditors of her husband, and to vest the title to the lots in himself. Construing the laws of Kansas, which were in evidence, this court held that although Behrens may have paid the entire consideration for the Kansas homestead, the consent of his wife to the conveyance of it in exchange for the Carondelet lots was a sufficient consideration for the transfer to her of those lots; that she had a right to insist that the title to those lots should be put in her name as the condition on which she would release her title to the homestead, and taking the title in her worked no fraud upon Behrens’s creditors. In that case there was a bona-fide understanding between Behrens and his wife that she was to own in her own light the lots in controversy.

The evidence in the present case suffices to support the conclusion of 1he court below that the Haddon Hall premises were the property of T. L. Reid, subject to incumbrances of record, and that the title was put in Mrs. Reid’s name to prevent the collection of debts he owed to creditors, including' plaintiff. The testimony bearing upon those questions is not so clear and convincing in favor of a contrary conclusion as to lead us to disregard the finding below. The mode in which Mrs. Reid advanced $3500 to relieve Reid from his embarrassments in Osagq City was not made clear. Part of the testimony indicates she turned over property belonging to her, and part that she paid money. One question and the answer to it, were as follows:

“Q. Now when, if at any time, did you put anything belonging to you in the property, any property of yours or money, into the hotel property there called the Everett, and why did you do it? A. These notes came due and Mr. Reid couldn’t pay them and I told him I had this property and I would turn it in on the notes and pay off as much as I could; it amounted to thirty-five hundred dollars.”

Nothing definite was stated about what property she used or whether she turned it over to Reid’s’creditors in kind or sold it and used the proceeds to pay his notes. The evidence is significant that when the Kansas property was exchanged for the Haddon Hall premises, Reid wanted the deed to the latter made to his daughter and wife jointly, but was talked out of that arrangement. Plainly there was an understanding that Mrs. Reid was not to be the absolute owner, for she agreed to execute some kind of a writing in favor of the daughter and did so, but the writing was not put in evidence. After the exchange had been made, Reid conducted Haddon Hall Hotel as proprietor, took out the license in his own name, and with the consent of his wife, deposited part of the money in her name and part in the name of his daughter. We abide by the finding of the trial judge, based as it was, not only on the statements of the witnesses, but on the manner in which their testimony was given.

II. It is contended plaintiff’s action will not lie because no execution had been issued on his- judgment against Reid and returned unsatisfied. Ordinarily, before a creditor’s bill can be maintained by a judgment creditor, he must show he had exhausted his remedy at law by taking out an execution on his judgment, which had'been returned unsatisfied for lack of property whereon to levy. An exception is allowed to this rule if it is proved that it would have been useless to issue an execution because the debt- or owned nothing that could be reached by it. [Merry v. Fremon, 44 Mo. 518; Turner v. Adams, 46 Mo. 99; 5 Ency. Pl. & Pr. 521.] The evidence established beyond question that Reid owned nothing in his own name, unless it was the land in Texas, beyond the process of a Missouri court. He testified himself that he had nothing.

III. Another point urged is that as the judgment of plaintiff ceased to be a lien three years after its date, there was no lien on the Haddon Hall property when it was purchased; hence no execution could be levied on it. This point is without merit. If the property belongs to Reid, although the lien of the judgment itself has expired, plaintiff is entitled to an execution and levy on the property at any time within ten years after the date of the judgment. [R. S. 1909. sec. 2133; Goddard to use v. Delaney, 181 Mo. 564, 571.] -And so long as the right to an execution exists, a judgment creditor may institute a suit to subject property of his debtor to-the execution. [Zoll v. Soper, 75 Mo. 460.]

The judgment is affirmed.

All concur, except Woodson, J., absent.