Kinney v. Murray

• Decision Date: 17 December 1902
• Citation: 170 Mo. 674,71 S.W. 197
• Parties: KINNEY v. MURRAY et al.
• Court: Missouri Supreme Court

71 S.W. 197

170 Mo. 674

KINNEY v. MURRAY et al.

Supreme Court of Missouri.

December 17, 1902.

CONTRACT TO MAKE WILL—EVIDENCE—SUFFICIENCY —FINDINGS OF CHANCELLOR—REVIEW ON APPEAL—ERRORS IN FAVOR OF APPELLANT.

1. Evidence in a suit for the specific performance of an oral contract, whereby a husband and wife agreed to adopt plaintiff as their child, and to devise to her their property in the event of their death childless, held insufficient to establish the contract.

2. Equity will specifically enforce an oral promise to make a devise in a particular manner or to a particular person where the promise is founded on a valuable consideration, and a fraud would be perpetrated on the promisee if unenforced, only if the terms of the promise are established by clear evidence beyond a reasonable doubt, and the performance of the consideration, if consisting of acts to be done, is shown by the same grade of proof.

3. An oral contract, whereby a husband and wife agreed to adopt a child, and to devise to her all their property in the event of their death childless, cannot be established by evidence of conversations had with and declarations made by the husband and wife from 30 to 40 years before the testimony was given.

4. Evidence of declarations, though generally admissible, does not amount to direct proof of the facts claimed admitted by the declarations, and when unsupported by other evidence is entitled to but little weight.

5. The intrinsic weakness of the evidence of declarations is enhanced by the length of time which has intervened since the declarations were made and by the fact of the death of the declarants.

6. Where, in a suit in equity, the trial court did not have the advantage of the oral testimony of the more important witnesses, the supreme court is not bound by the chancellor's findings.

7. The error of the lower court, in a suit for the specific performance of an alleged contract whereby a husband and wife agreed to devise to plaintiff all their property in the event of their death childless, in finding that the contract was established by the evidence, and rendering a decree in favor of plaintiff for part of the property, cannot be corrected on plaintiff's appeal for the alleged insufficiency of the relief granted.

In banc. Appeal from circuit court, Greene county; Jas. T. Neville, Judge.

Suit by Mattie Kinney against L. H. Murray and others. From a decree granting insufficient relief, plaintiff appeals. Affirmed.

Rathbun & Allen and W. D. Tatlow, for appellant. T. J. Delaney and J. T. White, for respondents.

BRACE, J.

This is a suit in equity, instituted in the Green county circuit court on the 15th of March, 1899, to specifically enforce an oral contract, alleged to have been entered into in the year 1855 or 1856, in the state of Virginia, between the plaintiff's parents, Edward S. Benson and his wife, and her uncle John S. Benson (brother of the said Edward) and his wife, Amanda, whereby it is alleged that the said John S. Benson and Amanda Benson, his wife, agreed "that they would take the plaintiff herein as their adopted child, educate and care for her as a natural child until she was fully grown, and, if the said John S. Benson and Amanda Benson should have no natural child or children born of their said marriage, then at the death of the said John S. Benson and Amanda Benson this plaintiff should receive all of their property, real, personal, and mixed, wherever situated." In the year 1885 the said John S. Benson died testate and childless, having by his last will and testament, executed October 20, 1880, and duly admitted to probate in the probate court of Green county, Mo., on the 2d of October, 1885, devised and bequeathed all of his property, real, personal, and mixed, to his wife, the said Amanda F. Benson, who was appointed executrix of his will, and upon final settlement of his estate in said court the sum of $2,483.60 was distributed to her as the sole legatee under said will. As sole devisee under said will she also came into the possession of 960 acres of valuable land in the state of Illinois. Afterwards she intermarried with one Walter Mitchell, who died, leaving her a widow, and afterwards, on the 12th of February, 1899, she died testate and childless, having by her last will and testament, duly admitted to probate in the probate court aforesaid on the 18th day of February, 1899, devised and bequeathed all her estate to the defendants. It is alleged in the petition that the property so devised and bequeathed by the said Amanda "is of the value of about $100,000, and is the property that the said Amanda Benson received under the will of her deceased husband John S. Benson, the real estate in Illinois being identically the same property, and the personal property being the accumulation from the rents and profits of the said real estate in Illinois, and the proceeds of the sale of other property received by her under said last will of said John S. Benson, and the increase therefrom." At the close of the evidence the court made a finding of facts at the request of the plaintiff, which is as follows:

"In 1856 John S. Benson and his wife, Amanda, lived in the state of Illinois. Edward Benson and his wife and several children lived on the eastern shore of Virginia. Edward and John S. Benson were brothers. John S. and Amanda Benson were in moderate circumstances, having some two or three thousand dollars worth of property, but no children. Edward and his wife had several children, but no property to speak of. John S. Benson and Amanda visited Edward in that year, and brought back to Illinois the plaintiff, who lived with them as one of the family continuously with the exception of one visit to Virginia, until she was married, in 1871. John S. Benson moved to Springfield, Missouri, and plaintiff, who was visiting in Virginia, afterwards came and lived with them some eighteen months. At the time plaintiff first went to live with her uncle she was somewhere between three and six years old. John S. Benson died in Springfield, Missouri, in 1885, seised of considerable real estate in the state of Illinois and $2,483.60 in personal property, as shown by the final settlement of his estate in Missouri. This went to Amanda Benson. Amanda Benson afterwards married one Mitchell, whom she survived, and herself died in the beginning of the present year. The entire property of the Bensons is of the present value of nearly $150,000. It is not certain where their original property came from, but certain it is that considerable portion, if not all, had come through the wife. They formerly lived in Louisiana, and may have held their property by the laws of that state, or Mrs. Benson may have inherited their property at the start from her parents. The plaintiff, after she became of age in 1871, married one Kinney against the will of John S. and his wife, for which there was an estrangement for some time; but John S. seems to have become reconciled, and after his death Amanda became reconciled also, and a few years before her death paid off a mortgage on plaintiff's property of about $2,000. Amanda, by her will, devised all her property to others than plaintiff. Plaintiff claims by this action that at the time she was taken to Illinois her uncle and aunt contracted with her father and mother that she should be adopted by them, raised and educated as their child, and at their death should have their property. Considering the facts, I fully realize the tendency to make false claims of this character against the estates of childless persons. I also realize the fact that in cases where such contracts as the one in question are in fact made the obligor is ofttimes liable to treat it lightly, and consider it a kind of moral obligation subject to his will at the varying moods of life. I have not had the advantage of seeing and hearing the more important witnesses, but, considering the relationship of the parties, the age of the child, the long distance she was taken, the entire change in her life, the childless condition of John S. and Amanda and their strong desire to have a child to call their own, the evidence of witnesses to the contract, and the facts and circumstances and conduct of the parties at the time and afterwards, convinces me beyond a doubt that they took her with the full understanding that she should have what they left when they were both dead. Mrs. Amanda Benson was at that time, and until long after plaintiff quit their services, a married woman, and hence her property was not bound by the agreement. At no time after her discoverture did she ratify or bind herself to it. The real estate belonging to John S. Benson at his death was situated in the state of Illinois. Under the laws of Illinois the contract could not be enforced; the decisions of its courts holding it to be within the statute of frauds, which statutes and decisions are pleaded and proven in this case. While courts of equity acting on the person may in proper cases define and adjudge the equities of parties before the court to property without the jurisdiction, I hold it would not be right in this case to do so. When the contract was made, it was with a view of residence in Illinois. The property is in Illinois. The evidence that satisfies this court would be incompetent in Illinois, and I think the well-known law there should be considered here, and, with reference to the real estate, should be respected. The personal property which Mrs. Benson derived from the proceeds of the farm, being her own, cannot be affected by decree in this case, since the plaintiff's right did not begin until her death; and, the real estate of John S. Benson not being subject to the contract, the rents and profits went to Mrs. Benson unaffected by it. I therefore hold that, while the contract is good and fully established, and the services fully performed, the only property which can be affected by this decree is the $2,483.60 received...