Asbury v. Hicklin

• Decision Date: 29 March 1904
• Parties: ASBURY v. HICKLIN et al.
• Court: Missouri Supreme Court

81 S.W. 390

181 Mo. 658

ASBURY v. HICKLIN et al.

Supreme Court of Missouri, Division No. 1.

March 29, 1904.

CONTRACT TO WILL—SPECIFIC PERFORMANCE— EQUITY — EVIDENCE — RESERVATION OF OBJECTIONS—REVERSIBLE ERROR.

1. In a suit in equity it is reversible error for the court to hear evidence subject to objection, reserving the ruling until the decision of the case, if the evidence is material, and an exception is taken.

2. Though an exception is not taken, if evidence received subject to objection is incompetent, and is of such a character as is justly calculated to influence the mind of the trial judge, the fact that it was received and retained while the case was held under advisement is to be considered by the appellate court in weighing the evidence and considering to what extent such evidence affected the finding of the trial judge.

3. Where plaintiff's mother made an alleged contract with defendant's decedent by which plaintiff was surrendered to deceased to live with her as her own child during deceased's life in consideration of deceased's agreement to make plaintiff her heir, plaintiff's mother was a party to the contract, and incompetent to testify to such agreement after decedent's death, under Rev. St. 1899, § 4652.

4. A court of equity will specifically enforce an oral contract to devise property to another in consideration of services actually rendered, provided the proof of such contract is so cogent, clear, and forcible as to leave no reasonable doubt as to its terms and character.

5. Evidence reviewed, and held insufficient to establish the making of a contract between defendant's decedent and plaintiff's mother, by which deceased orally agreed to make plaintiff her heir in consideration of plaintiff being surrendered to deceased, and services performed by her during decedent's lifetime.

Appeal from Circuit Court, Johnson County; Wm. L. Jarrott, Judge.

Action by Zoe Asbury against Josephine Hicklin and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

O. L. Houts, for appellant. W. W. Wood and J. W. Suddath, for respondent.

VALLIANT, J.

The plaintiff brings this suit against the heirs of Samantha E. Baldwin, deceased, and the administrator of her estate, to enforce the specific performance of an alleged contract to the effect that the plaintiff, who was then an infant four years old, was to be taken into the family of the intestate, reared as a daughter, and receive, at the death of the intestate, one-half her estate. The petition states that in 1878 Mrs. Baldwin, who was then the wife of defendant John L. Baldwin, had one son, David, about 14 years old. The alleged contract is stated in the petition in these words: "That at that time the said Samantha E. Baldwin took the plaintiff, then a child about four years of age, from her mother, and orally agreed with the mother of this plaintiff that, if this plaintiff would live with her, the said Samantha E. Baldwin, and do the part of a child, and act and live with her as a member of the family, and render to her, the said Samantha E. Baldwin, all the attentions, services, and care that a dutiful daughter would render in the family, that she, the said Samantha E. Baldwin, in consideration thereof, would, at her death, give to this plaintiff one-half of all the property of which she might die seised, and to her son, David Baldwin, the other half." The petition then states that the plaintiff went into the family in those terms, and faithfully bestowed the care, attention, and affection and rendered the services of a daughter to Mrs. Baldwin up to the year 1897, when the son, David, died, leaving his mother and father his only heirs; that prior to the death of her son, who in his lifetime had acquired considerable property of his own, Mrs. Baldwin orally promised the plaintiff that, if she would continue to live with her as her daughter, and take care of her, and render services like a dutiful child, she would at her death give her all the property of which she might die seised, and repeated that promise orally many times both before and after the death of her son, David; that the plaintiff, in consideration of the agreement, continued to bestow such care and render such service to Mrs. Baldwin up to the time of her death in 1899; that Mrs. Baldwin died intestate, leaving personal estate of the value of $1,200 and considerable real estate, the larger part of which was a farm she had inherited from her father, and which she owned in 1878, when she made the contract with plaintiff's mother; the rest she inherited from her son, who died in 1897. She left her husband surviving, who is now the administrator of her estate, and a sister, Mrs. Hicklin, who claims to be her heir at law. The prayer of the petition is for the specific enforcement of the contract by a decree vesting all the property in the plaintiff.

The husband, as administrator, filed an answer denying all the allegations of the petition. Then in his own right as surviving husband he filed another answer, admitting all the allegations of the petition to be true. Mrs. Hicklin filed an answer, which amounts to a general denial.

On the trial the plaintiff offered evidence which tended to prove as follows: She was born in the household of Mr. and Mrs. Baldwin while her mother was living there. She continued to live in the family until she was about four years old, when her mother got married, and moved away, taking her with her. About two months after moving away, her mother brought her back, and she was received again in the Baldwin family, was reared as a member of the family, was known by the name of Zoe Baldwin, was always kind and affectionate to Mrs. Baldwin as a good daughter would be, and Mrs. Baldwin was in turn kind and affectionate to her as a good mother would be. As the plaintiff grew large enough to perform household work, she did so, was the mainspring of the household so far as its work was concerned, and was loved and respected by all the family. The family consisted of Mr. and Mrs. Baldwin, their son, David, Zoe, and a youth named James Spencer. James was an orphan, of no kin to the Baldwins, but had been taken into the family when he was 10 years old, treated as a member thereof with kindness and affection, and had rendered the services that were to be expected of one in his situation. He was still living in the family at the date of the trial, and was then 29 years old. The plaintiff was married in 1896, but continued to live in the Baldwin family and render the services and bestow the care and attention on Mrs. Baldwin until her death in 1899.

The only witness offered by the plaintiff to prove the alleged contract was the mother of the plaintiff, with whom it is alleged Mrs. Baldwin made the contract. When this witness was offered, the defendant Mrs. Hicklin objected on the ground that it was the offer of the testimony of one of the parties to the contract in issue and on trial, when the other party was dead. The court ruled that it would hear the testimony, and pass on its admissibility afterwards. The counsel for defendant said, "I would like to have the matter passed on now." Counsel for plaintiff said, "We admit that the plaintiff is disqualified, but this is the agent who made the contract." The court said, "I will hear her testimony subject to your objection." This witness' testimony as to the contract was that about two months after she had taken the child away "Mrs. Baldwin had me bring her back. Q. Tell the conversation between you and Mrs. Baldwin? A. She told me if I would bring the child back, and never interfere, she would take her as her own child, and do a child's part by her. Q. Well, what further did she say, if anything? A. That is the biggest part of it. I was to bring her back, and she was to keep her, and she was to educate her, and treat her as her child, and she should heir as a child in everything." The rest of the plaintiff's testimony was the relation by witnesses of the purport of conversations had with Mrs. Baldwin running through the period of the last 10 years of her life, the substance of which was that she intended for Zoe to have her property at her death. The following is an epitome of this evidence: George Edwards (colored): "She said Zoe was to have an equal share in the family." Mrs. Scruggs: "She called it her Honey Creek farm, and she said when she was done with it it was for Zoe." Mrs. Taylor: "She wanted Zoe to stay with her while she lived, and take care of her, and she would give her what she had at her death." Frank Day, a young man paying attention to Miss Zoe: Mrs. Baldwin "told me how good Zoe was to work. Said she never had to tell her the second time; and then she said expected when she died to give Zoe everything she had. She said Zoe was next to Dave with her, and she never expected him to live long, as he was afflicted some time, and she expected when he died Zoe was to have everything." James Spencer was present and heard the conversation that Mrs. Taylor testified about, and had a conversation with Mrs. Baldwin about the time Zoe was married, in which she said that when Mr. Asbury asked Mrs. Baldwin for Zoe "she told him she always intended to give Zoe what she had if she stayed with her," and Mr. Asbury promised he would never take her away. This witness had been reared in the family as a member, went to school, worked on the farm, was paid no wages, but understood he was to have one of the farms. Dave, in his lifetime, had said so, and after his death Mrs. Baldwin had said that witness was to have Dave's farm. W. W. Howard visited Mrs. Baldwin's son during his illness. "Mrs. Baldwin told me, when she got through with what she had she expected to give what she had to Zoe." Bart Jackson, in 1896, after Zoe's marriage, heard Mrs. Baldwin say that "she intended for her [Zoe] to stay with her as long as she lived, and she would give her her part; all what she had." Andrew Lockard, in 1...