Wright v. Tinsley

• Decision Date: 31 July 1860
• Citation: 30 Mo. 389
• Parties: WRIGHT, AS TRUSTEE, &c., Plaintiff in Error, v. TINSLEY et al., Defendants in Error.
• Court: Missouri Supreme Court

30 Mo. 389

WRIGHT, AS TRUSTEE, &c., Plaintiff in Error,

v.TINSLEY et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1860.

1. A 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 second section of the second article of the practice act. (R. C. 1855, p. 1217,) He may, or may not, join the beneficiary as a party in the suit.

2. An agreement to dispose of property by will in a particular way, if made on a sufficient consideration, is valid and binding.

3. Although circumstances may render it impossible to specifically enforce such an agreement exactly, yet its substantial specific enforcement will be decreed.

Error to Callaway Circuit Court.

Demurrer to a petition. The petition is entitled thus: “Henry T. Wright, who sues as trustee for the use and benefit of Archie G. Dawson, administrator of the estate of Mary Dawson, deceased, plaintiff, against Abram Tinsley,” &c. The defendants are the executors of the will of Caleb Tinsley, deceased, and his devisees and heirs. The petition sets forth, in substance, that said Caleb Tinsley, late of Audrain county, Missouri, died in 1853, possessed of a large estate, consisting of land, negroes, choses in action, and personal property, of the value of $15,000; that said Caleb Tinsley left a will, which was duly admitted to probate; that he bequeathed his estate as follows: to his daughter Frances Childs, one-third of the negroes and money, and a house and lot in Boonville, Mo.; to his grandchildren, the children of his daughter Mildred Sampson, one-third of his negroes, all the notes held by the said Caleb on their father John Sampson, and such an amount of money as would make their share equal to one-third part of said estate; to his son Abram Tinsley, a wagon and team, all the farming utensils, and the remaining third of the negroes, and money sufficient to make his share equal to a third part of said estate; that said legatees (defendants in the suit) were all the children and grandchildren of the said Caleb Tinsley, deceased, except Peachy, the wife of Henry T. Wright, plaintiff, who died prior to the death of the said Caleb, leaving a daughter, Mary Elizabeth, wife of Archie G. Dawson; “that prior to the decease of the said Caleb, that is to say, sometime in the year 1847, the said Caleb Tinsley was desirous of settling up his affairs with his children, in order that he might ascertain the amount advanced to each, so as to make an equal and impartial distribution of the property which he might die possessed of; and he was particularly desirous of having a settlement with the plaintiff Henry T. Wright, to whom the said Caleb Tinsley owed a balance of $900 upon indebtedness which accrued against the said Caleb in favor of the said Henry T. Wright through several years' dealing. The said Caleb refused and objected to paying to the said Wright any portion of the said claim; but the said Caleb having already executed his will, wherein he had made provision for the said Henry, in right of his said wife Peachy, equally with his other children, he proposed to the said Henry T. Wright, that if he would submit the matter to arbitrators, who would make an award agreeable to his wishes and direction, he agreed and promised that the said Wright should be a legatee and devisee, and share equally with his other children in his estate after his death. Plaintiff states that in order to procure the peace, harmony and good feeling of the family, and under the existing relationship between him and the said Caleb, and in order to secure to his said daughter Mary E., and her children, her equal share of the said estate with the other children of said Caleb, he agreed and consented to waive his right and claims against the said Caleb and allow the same to be submitted to arbitrators, who were authorized to make an award agreeable to the feelings and dictation of the said Caleb; and the said arbitrators being chosen and duly apprised of the duties devolving upon them, and fully understanding the agreement, object and consideration of said arbitration, the said will being shown to them and the matter explained by the said Caleb, said arbitrators proceeded to adjust and settle the differences, and by their award found for the said Tinsley, who thereupon expressed himself satisfied with the same. Plaintiff states that he duly performed said award according to the requirements, by executing to the said Caleb a promissory note for the sum of four hundred and six dollars and fifty-six cents, being the amount received by the said Wright from the said Tinsley prior to the said arbitration as an advancement, the said note being by said award directed and required to be given, with the express understanding that the same should not be considered as an indebtedness by the said Wright to Tinsley, but to be held by the said Tinsley to show how much had been received by the said Wright of the estate of Tinsley in order to make a proper deduction on a final distribution, so that each legatee should receive an equal portion. Plaintiff states that, after the making of said award, the said Caleb Tinsley destroyed the will he had made, wherein he had provided for the said Wright as aforesaid, and afterwards made another will, wherein he failed to make any provision whatever for the said Wright or his children, save and except that he bequeathed the note which he, Wright, had given to the said Tinsley for the sum of $406.56, and he, the said Wright, and his children were otherwise excluded from all and every benefit or participation in said estate, the same being bequeathed to the above defendants as above stated, a copy of which said will is herewith filed, the original not being, &c. Plaintiff states that all the debts of said estate have been fully paid off, discharged and satisfied, and that after the payment of the same there was money and other property left subject to distribution of the value of $12,000. The plaintiff proceeds to set forth the value of the interests actually received by the defendants as legatees under the said will of Caleb Tinsley, and also what there is still in the hands of the executor, Abram Tinsley. “Plaintiff prays that the said defendants be required to state severally and distinctly the amount of property and money received by them from said estate, and he prays that guardians ad litem be appointed for” certain of the minor defendants; “that the said executor, Abram Tinsley, be decreed and ordered to specifically execute and perform said contract so entered into by and between said Wright and the said Caleb in his lifetime; and he further prays that, in order to carry out the decree and judgment of the court, each defendant be decreed to contribute and refund such portion of the amount as may be fixed by the court to be one-fourth part of said estate, after deducting the debts, costs of administration, and the other costs and expenses incident to the settlement of said estate; and that said defendant be decreed to contribute in proportion to the respective amounts received by each, and plaintiff further prays,” &c.

The defendants demurred to this petition. The following are the grounds of the demurrer: First, because the said H. T. Wright is improperly joined as a party plaintiff in said action; second, because if, as averred, the contract was made with and for the use of the said H. T. Wright, then A. G. Dawson, administrator, is improperly joined as a party, and the suit should have been brought in the sole name of H. T. Wright; thirdly, because there is no adequate consideration averred for the agreement sought to be enforced; fourthly, because the relief prayed for in the petition is impracticable, and this court has no power to decree a specific performance of the contract set out in the petition; fifthly, because the agreement set out relates to and concerns real estate, and the heirs of Mary Dawson should be made parties plaintiff in the cause; sixthly, because Archie G. Dawson is improperly joined as a party in this suit, there being no averment of his administration.

The court sustained the demurrer.

Jones & Hayden, for plaintiff in error.

I. The action was properly brought by Henry T. Wright in his own name as trustee, he being the trustee of an express trust. It is no cause of complaint, although it is stated, in the style of the suit, to be for the use of another. No part of the prayer of the petition asks a judgment in favor of Archie G. Dawson, administrator of Mary Dawson. A trustee may either sue in his own name or join the beneficiary with him; in either case he controls the judgment, and the decree is in every instance made in favor of the trustee. The mere fact that Wright styles himself the trustee of Dawson, in the margin of the petition, does not constitute Dawson a party to the suit, it being a mere recital that could not affect the judgment in the cause. (R. C. 1855, p. 1207, sec. 2.)

II. The objection, that there was not an adequate consideration to support the contract, might be answered by stating that a court of equity will not look to the adequacy of the consideration unless there be such gross inadequacy as to raise the presumption of fraud. (Adams' Eq. 79.) There was an adequate consideration. Plaintiff placed his legal rights at the disposal of the arbitrators, who, knowing the inducements and promises held out to Wright, do in the premises just what Tinsley told them to do--to acquit and release him from the debt of nine hundred dollars, and award that Wright should execute his note for the amount advanced--in consideration of which he bound himself to make Wright equal with his other children in his will.

III. Equity will enforce the specific execution of all contracts which are based upon a valuable consideration, where the consideration has been...