Barton v. Barton

• Decision Date: 31 July 1864
• Citation: 35 Mo. 158
• Parties: WILLIAM A. BARTON, Plaintiff in Error, v. REBECCA BARTON, Defendant in Error.
• Court: Missouri Supreme Court

35 Mo. 158

WILLIAM A. BARTON, Plaintiff in Error,

v.REBECCA BARTON, Defendant in Error.

Supreme Court of Missouri.

July Term, 1864.

Error to Cole Circuit Court.

The plaintiff in error sued the defendant in error before a justice of the peace, on a statement or complaint filed, in which he alleged that she owed him $76.50, which, in May, 1862, she agreed to pay to him, if he demanded it; it being what would have been his distributive share of his father's estate, which she consumed by bringing in a pretended claim for the support of infant children, and which the county court, at her final settlement, accepted on the express condition that she would pay the above sum if plaintiff claimed it; that he had claimed it, and she had refused to pay it.

Judgment was given for plaintiff, and defendant appealed.

At the trial in the Circuit Court, plaintiff introduced W. F. Fowler, a judge of the county court, and proved by him (defendant objecting) that in May, 1862, defendant came into the county court to make a final settlement on her deceased husband's estate, and brought in an account and claimed in said settlement $625.30, as a credit for maintaining, educating, &c., the infant children of deceased; that it was suggested that plaintiff (who was not present) would object to it, he being the eldest of the children, and grown up, and not living with defendant; that the widow bought articles at the sale which took place in 1858, articles which amounted to the sum for which she was claiming a credit; that she had maintained the children at her own expense, and if this sum was not allowed her, she would fall considerably behind; -- and defendant then agreed, that if plaintiff claimed his share of this sum, she would pay him; that the court allowed the account to be placed to her credit, with the understanding that plaintiff was to have his distributive share paid him, if he claimed it.

All of which testimony the court excluded, and the plaintiff excepted.

It was also shown that, by giving defendant this credit, the other expenses of administration about exhausted the assets of said estate; that deceased had six children, and plaintiff was the eldest; that plaintiff demanded the sum in controversy.

Plaintiff then asked the following instruction, which was refused by the court:

“If the jury believe from the evidence that defendant agreed to pay plaintiff, if he demanded it, his distributive share as heir of his father of the credit that the county court allowed her in her final settlement, and that plaintiff did demand the same, the jury will find for the plaintiff the amount of his distributive share of the same, and interest from the time of demand.”

A mother may charge the estate of her deceased husband for the support of her infant children, but it must appear that they were so small that their services would not compensate for their support, and that the mother during the time that she was maintaining them expected to charge for the same.

Defendant asked the following instruction which was given by the court, and plaintiff excepted:

“The jury are instructed to exclude from their consideration the entire testimony of witness W. F. Fowler.”

Verdict for defendant, which defendant moved to set aside, and also moved to arrest judgment.

G. T. White, for plaintiff in error.

The court below erred in excluding Judge Fowler's testimony. The county court may make some contracts by parol. (Baggs v. Caldwell County, 28 Mo. 586.) We do not propose to recover on a contract made with the county court, which was of such a nature that the record should have contained said contract; but we insist that we have a right to show why it was that the county court was induced to permit defendant to make her final settlement, which inducement could not be made a matter of record. And if we show by parol that defendant was benefited by being permitted to make her settlement, and that, as a condition to her making her settlement in a particular form, she made a promise for the benefit of the plaintiff, he has a right to avail himself of it. (1 Ves. & B., 378.)

The final settlement being made upon this express condition -- and with this outside understanding, it (the understanding) was not a matter which the law required to be made a matter of record; and no fact can be established by record evidence, unless it be a fact of such a character that must necessarily be made a matter of record; which was not the case here -- she thereby became a trustee, holding for plaintiff, if he demanded it, that sum. (Podmore v. Gunning, 10 Eng. Ch. 247, 249.)

The plaintiff's only remedy was by an action of this sort; there was no violation of the condition of the administratrix' bond that could be sued on; the county court had the entire control of the matter -- had a right to allow defendant's claim, exercising at the same time a due regard for the interests of those concerned; and it being suggested that plaintiff was the only one whose rights could be justly said to be injured by their allowing the claim, they had a right to guard his interest by imposing the condition that they did upon defendant. He then could not have appealed if he had been present, because he had not been injured by the judgment of the court, when the outside understanding is taken in connection with the court's judgment; and it should not now be in the defendant's mouth to come in and say, that she is not bound on a promise that she found it necessary to make, by which she was benefited to the amount of six times the sum here sued...