Nowack v. Berger

Decision Date03 March 1896
PartiesNOWACK v. BERGER et al.
CourtMissouri Supreme Court

Appeal from circuit court, Gasconade county; Rudolph Hirzil, Judge.

Action by Hermann Nowack against William Berger, as executor of the will of Eberhard H. Schweer, deceased, and others. Decree for plaintiff, and defendants appeal. Modified.

In this proceeding for specific performance, it is conceded by plaintiff: That the abstract of pleadings prepared by defendants is correct, which sets forth: "(1) That he, the said Eberhard H. Schweer, should take, adopt, support, and treat her son, this petitioner, at all times as his own natural child, and that plaintiff should at all times perform the duties towards said Schweer due from children towards parents. (2) That in case there should be no children born under his marriage with the said Augusta, that then the plaintiff should be sole heir to all the estate said Eberhard H. Schweer should have at his death, subject to the statutory legal rights of plaintiff's mother as widow; and that in case there should be children born of said marriage, that then plaintiff, upon the death of said Schweer, should receive and be given a share in the estate equal to what one of said Eberhard H. Schweer's own natural children would receive in case he were to die intestate; and that said Schweer should, during his lifetime, by last will or other means of conveyance, make disposition of his property accordingly." That, pursuant to said terms, said Augusta and said Schweer were married, on the 10th day of August, 1864. That said Schweer thereupon assumed control of plaintiff. That said Schweer required of plaintiff such services, and that plaintiff rendered to Schweer such services, as are due from a child to a parent. That plaintiff continued to live with Schweer until he approached his majority, when he was by Schweer induced to marry, and to move onto a tract of land described in the petition, being the same tract on which plaintiff now lives. That the marriage between the said Schweer and plaintiff's mother was dissolved by the death of Schweer, on the ____ day of February, 1892. That there were born of said marriage three children, defendants Henry E., Fred W., and Ferdinand Schweer. That the said Schweer did not in his lifetime make any provision for plaintiff in accordance with the alleged contract. That, on the contrary, he left a last will and testament, whereby he devised and bequeathed to each of his three sons certain real estate and personal property, and to his widow, defendant Augusta Schweer, such of his estate as she would have been entitled to in case he had died intestate, and to plaintiff's children, defendants Annie A., Henry E., Matilda, and Tina Nowack, the said real estate on which plaintiff now lives, and gave nothing to plaintiff. That said will was probated and letters testamentary issued to the defendant William Berger, now in charge of the estate as executor. That the personal property left by said deceased was worth $13,635.11, and the real estate at least $27,000. Specific performance of this contract was asked by plaintiff. The second count states substantially the same facts as the first count, except that the alleged contract between E. H. Schweer and Augusta Nowack is stated in somewhat different terms, as follows: That the plaintiff should be legally adopted by the said Schweer, and should perform all the duties and services towards said Schweer due from children towards parents; and that, upon the death of the said Eberhard Schweer, if no children should be born of the marriage between the said Schweer and the said Augusta, plaintiff should inherit all the property which said Schweer might leave; and that, if there should be children born of the marriage, then plaintiff should have equal share with each of said children. And, except that, the second count states that, when plaintiff approached the age of majority, said E. H. Schweer induced him to marry one Caroline Bartlett, upon a promise to give to plaintiff the farm on which plaintiff now lives, and renewed his promise that at his death he would give plaintiff sufficient to make him equal with his own sons; that, in reliance upon these promises, plaintiff married, on the 15th day of September, 1882 (before he had fully arrived of age), and went into possession of said real estate, and made lasting and valuable improvements thereon, by clearing land, erecting buildings, and planting an orchard, and continued to cultivate the same to the commencement of this suit; that, instead of giving plaintiff the said farm, said Schweer, by said last will, gave it to plaintiff's minor children, the defendants Annie, Henry, Matilda, and Tina Nowack, etc. With the exception of the minor defendants, who answered by their guardian, in usual way, the adult defendants answered as follows: "(1) A general denial of all the allegations of the petition. (2) That the contract alleged in both counts of the petition, and all matters alleged touching and concerning the same, was and is, and this action is brought to charge defendants upon, an agreement in consideration of marriage; and no such agreement, nor any note or memorandum thereof, was or is in writing, signed by the said E. H. Schweer, or by any other person by him thereto lawfully authorized."

Kiskaddon & Meyer and John W. Booth, for appellants. Robt. Walker, for respondent.

SHERWOOD, J. (after stating the facts).

1. The testimony of Frederick and Henrietta Kotwitz (at whose house Augusta Nowack was then living, with the illegitimate son, the plaintiff, then some two years old) abundantly sustains the allegations of the petition as to the nature, terms, and scope of the agreement entered into between Eberhard H. Schweer, deceased, and said Augusta. There was no evidence to the contrary, and the lower court, after findings suitable to the occasion, decreed that "a child's share, or the one-fourth part of all the estate and property of the said Eberhard H. Schweer, be decreed to plaintiff, subject to the right of dower of the widow, the defendant Augusta Schweer, in all the real and personal estate; that all the estate and property left by the said Schweer at his death is hereby declared in trust, to be distributed as follows: That plaintiff receive the one-fourth part thereof, subject to the right of dower of the widow aforesaid; and that this one-fourth part comprise the land on which he now resides, and which by the last will of said Schweer was given to plaintiff's children, and the balance of all property and estate be divided as directed in the last will of said Schweer; and that, for the purpose of dividing said property, contribution is hereby ordered of the defendants Henry E. Schweer, Fred W. Schweer, and Ferdinand Schweer, in proportion to the value and amount of property respectively given to each of them in said will; and that the executor of said Eberhard H. Schweer be adjudged to pay the costs incurred in this suit out of the estate of said Eberhard H. Schweer."

Inasmuch as the circuit court did not find plaintiff entitled to specific performance of the additional contract made with plaintiff, as alleged in the second count in his petition, and did not decree performance thereof, and inasmuch as he is content with, and does not appeal from, the decree, it is unnecessary to consider the correctness of the ruling which omitted to specifically perform such additional contract. But while this is true, and while plaintiff is in no position to complain, yet it is otherwise as to the minor defendants, his children. To them the will of Schweer gave the farm on which plaintiff resided, and on which he had thus lived for some 10 years at the time of Schweer's death. The contract made between plaintiff's mother and Schweer only entitled plaintiff to one-fourth of whatever property, real and personal, Schweer had at the time of his death....

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