Kirk v. Middlebrook

Decision Date22 February 1907
Citation100 S.W. 450,201 Mo. 245
PartiesMAGGIE KIRK, Trustee for EUGENE JOSEPH KIRK, Appellant, v. MIDDLEBROOK, Administrator of Estate of CHARLES W. ADAMS, deceased, and FASCHIAN et al
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed.

Reed Yates, Mastin & Howell and Joseph S. Brooks for appellant.

(1) The person with whom a contract is entered into for the benefit of another may sue in his own name, in enforcement of such contract, without joining with him such other person; he is a trustee of an express trust within the meaning of the statute. Wright v. Tinsley, 30 Mo. 389; R. S. 1899 sec. 541. (2) An agreement to dispose of property by will in a particular way, if made on a sufficient consideration, is valid and binding, and although circumstances may render it impossible to specifically enforce such an agreement exactly yet its substantial specific enforcement will be decreed. Wright v. Tinsley, supra; Nowack v. Berger, 133 Mo. 37; Hiatt v. Williams, 72 Mo. 214; Anderson v. Shockley, 82 Mo. 215; Rosenwald v. Middlebrook, 188 Mo. 58; Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; Healey v. Simpson, 113 Mo. 340; Teats v. Flanders, 118 Mo. 660; Hale v. Harris, 145 Mo. 214; Alexander v. Alexander, 150 Mo. 179; Lynn v. Hockaday, 162 Mo. 111; Clark v. Cordry, 69 Mo.App. 6; Stone v. Pennock, 31 Mo.App. 544; Lee v. Howe, 27 Mo. 521; Farrow v. Patton, 20 Mo. 81. (3) A contract which, by its terms, is to be performed at the death of one of the parties, is not within the provision of the Statute of Frauds, which requires contracts not to be performed within a year from the making thereof to be in writing. Frost v. Tarr, 53 Ind. 309; Riddle v. Backus, 38 Iowa 81; Smalley v. Greene, 52 Iowa 241; Updyke v. Tenbroeck, 32 N.J.L. 105; Kent v. Kent, 62 N.Y. 560. (4) The consideration shown by the evidence, and alleged in the petition, was sufficient, and a good and valid consideration for the agreement of the deceased. 6 Am. and Eng. Ency. Law 680; Turlington v. Slaughter, 54 Ala. 195; Farnham v. O'Brien, 22 Me. 475. (a) A release from liability for tort is a good consideration for a promise. Crusselle v. Pugh, 71 Ga. 744. (b) The compromise or abandonment of a doubtful right is a sufficient consideration for a contract, even when it turns out that the point given up was in truth against the promisee. 1 Chitty (11 Ed.), 29. (c) And the same rules prevail in equity; inadequacy of consideration being of itself no ground for impeaching a contract in a court of equity. Forbearance to institute or prosecute legal or equitable proceedings, is a sufficient consideration. 1 Chitty, 35. (d) Giving up a claim where the law is doubtful, is a good consideration. 1 Chitty, 48. (e) If there be a pre-existing legal or equitable obligation to pay, which cannot be enforced, it is sufficient consideration for a new promise to pay. Ellicott v. Peterson, 4 Md. 476. (f) A compromise of doubtful and conflicting claims is a sufficient consideration for a promise voluntarily made, and not induced by fraud, though the claims were illegal and without foundation. Mason v. Wilson, 43 Ark. 172; Richardson v. Comstock, 21 Ark. 69; Barton v. Baird, 44 Ark. 556; Cassell v. Ross, 33 Ill. 245; Honeyman v. Jarvis, 79 Ill. 318. (g) The moral obligation to perform an agreement within the statute is sufficient consideration for a promise. Anderson v. Best, 176 Pa. St. 498; Bailey v. Philadelphia, 167 Pa. St. 569. (h) A very slight advantage to one party, or a trifling inconvenience to the other, is sufficient consideration to support a contract. Marks v. Bank, 8 Mo. 316; St. Louis v. Gas Light Co., 70 Mo. 116. (i) Where consideration is of an indeterminate value, its sufficiency will not be inquired into by the courts. Price v. Jones, 105 Ind. 543; Blake v. Blake, 7 Ia. 46; Buckner v. McElroy, 31 Ark. 97. (5) An agreement to adopt and care for a child during minority is not within the Statute of Frauds, since it might have been terminated in less than a year by the death of the child during that time. Taylor v. Deseve, 81 Tex. 246; Sharkey v. McDermott, 91 Mo. 647. (6) It is not necessary that the consideration should move from the beneficiary. The fact that the mother was the injured party, and that the child was in law not in esse, but a part of the mother, does not affect the right of the mother to recover as trustee for the benefit of the child. Wright v. Tinsley, 30 Mo. 389; Allaire v. St. Luke's Hospital, 76 Ill.App. 441, 184 Ill. 359; Dietrich v. Inhabitants, 138 Mass. 14; Walker v. Railroad, 28 L. R. (Ire.) 69.

P. E. Hatch and C. O. Tichenor for respondents.

(1) This sort of case has often been before this court, and it differs from them only because it is the weakest of them all. From Sutton v. Shipp (1877), 65 Mo. 297, to this time, the court has decided fifteen cases of this kind, and decisions were against claimant in all but four: Sharkey v. McDermott, 91 Mo. 647, where the petition was held good on demurrer; Alexander v. Alexander, 150 Mo. 579, where the case was made out by letters; Nowack v. Berger, 133 Mo. 24, where the consideration for the adoption of a child was the marriage of the mother to the one adopting; and Lynn v. Hockaday, 162 Mo. 111, where all admitted by the pleadings that the child had been adopted, but the question was whether the adoption was by the husband or the wife. (2) In a suit to specifically perform an agreement for an interest in an estate and to declare the heirs to be trustees to the extent of such interest, for plaintiff, the proof of the contract must be so cogent, clear and forcible as to leave no doubt in the mind of the chancellor as to its terms and character. There must be no doubt in the petition as to the statement of the case or in the contract. There must be like proof that the acts done unmistakably refer to and result from that contract. There must be no eqivocation or uncertainty in the case. It must be in terms a contract and not a mere declaration of intention or expectation. In fine, there must be a contract definitely and conclusively proven. Casual and loose conversations, when not supported by other evidence, are entitled to little, if any, weight. This is dangerous testimony; is looked upon with jealousy, and should be weighed in the most scrupulous manner. Agreements of this kind are looked upon with suspicion and ought not to be encouraged. These agreements are within the Statute of Frauds and are sustained only where it would work a fraud if one party was allowed to plead it. Goodwin v. Goodwin, 172 Mo. 48; McElvain v. McElvain, 171 Mo. 257; Kinney v. Murray, 170 Mo. 700; Steele v. Steele, 161 Mo. 575; Curd v. Brown, 148 Mo. 92; Fanning v. Doan, 139 Mo. 411; Nowack v. Berger, 133 Mo. 42; Teats v. Flanders, 118 Mo. 669; Cherbonier v. Cherbonier, 108 Mo. 264; Emmel v. Hayes, 102 Mo. 195; Veth v. Gierth, 92 Mo. 104; Asbury v. Hicklin, 181 Mo. 658; Reed v. Morgan, 100 Mo.App. 713; Grantham v. Gossett, 182 Mo. 651; Drake v. Lanning, 49 N.J.Eq. 459; McKee v. Higbee, 180 Mo. 263; Rosenwald v. Middlebrook, 188 Mo. 58; McTague v. Finnegan, 54 N.J.Eq. 457; Woods v. Evans, 113 Ill. 191; Neals v. Gilmore, 79 Pa. 425; Miller's Estate, 136 Pa. 249; 8 Am. and Eng. Ency. Law (2 Ed.), 1017; Nickerson v. Nickerson, 127 U.S. 676; Purcell v. Miner, 4 Wall. 517; Williams v. Morris, 95 U.S. 444; Madison v. Alderson, L. R. 8 App. Cas. 467. (3) Plaintiff claims to be a trustee for her son, and sues as such. Even if there was a contract as claimed to have been made two or three days after the child was born, it created no trust; at most it was simply an agreement with plaintiff for the benefit of her boy; he never could have sued her upon it as his trustee. To be a trust, some estate must have been conveyed to the trustee; had she received anything from Adams on account of injuries, it would have belonged to her and not to the boy, and even if she had declared in the most solemn form that she held it in trust for the boy, it would have been a falsehood, establishing no trust. This so-called agreement, made just after the birth of the child, was void because of the Statute of Frauds. Packett Co. v. Sickles, 5 Wall. 595. It was not in writing and by no possibility could the baby have been educated, either generally or even specially, as a doctor, during the first year of its existence; nor could Adams, no matter how bright the child may have been, have entered into a contract of partnership with him for the practice of medicine at that age. Even if there was an agreement as to a will, there is no pretense that it was made with plaintiff as trustee. If there was an agreement with plaintiff, as claimed in the first instance, creating a trust, then the trustee could not make a different one in its place (as she claims to have made years afterwards), without the consent of the cestui que trust. Hunnewel v. Lane, 11 Met. 167. And if there was a consideration for the first agreement, then the same consideration could not be used for another agreement made about seven years afterwards.

LAMM J. Woodson, J., not sitting.

OPINION

LAMM, J.

Doctor Adams (of middle age) died in Kansas City on August 3, 1899, intestate, possessed of an estate of sixty thousand dollars. Presently, on August 5, of the same year, Mr. Middlebrook of the Kansas City bar qualified and took upon himself the burden of administering upon his estate. On August 9, 1901, Mrs. Kirk and her husband lodged a bill in equity against Middlebrook and the unknown heirs of Adams, the object of which was to decree Mrs. Kirk a distributee in Adams' estate on behalf of her child, Eugene Joseph Kirk, to the amount of $ 5,000.

Cast on a hearing on the merits, plaintiff appeals here.

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