Bateman v. Franklin

• Decision Date: 07 July 1923
• Docket Number: 24,685
• Citation: 114 Kan. 183,217 P. 318
• Parties: M. D. L. BATEMAN, Appellant, v. W. N. FRANKLIN, as Administrator, etc., Appellee
• Court: Kansas Supreme Court

217 P. 318

114 Kan. 183

M. D. L. BATEMAN, Appellant, v. W. N. FRANKLIN, as Administrator, etc., Appellee

No. 24,685

Supreme Court of Kansas

July 7, 1923

Decided July, 1923.

Appeal from Pottawatomie district court; ROBERT C. HEIZER, judge.

Reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

ORAL CONTRACT--Conveyance of Land or Its Proceeds for Personal Services--Contract Enforceable. An oral promise of an uncle and aunt to their nephew, a minor, that if he would come and live with them and render them dutiful obedience and service as their own child until he attained his majority, at the death of the survivor of them they would leave him half their farm or half its proceeds, when accepted and fully performed by the nephew is an enforceable contract against the administrator of the estate of the last surviving obligor and the statute of frauds is no bar to an action thereon, nor is the statute of limitations a bar thereto if the action is timely begun against the administrator.

Maurice Murphy, of St. Marys, and W. F. Challis, of Wamego, for the appellant.

E. C. Brookens, E. S. Francis, both of Westmoreland, A. E. Crane, and B. F. Messick, both of Topeka, for the appellee.

OPINION

DAWSON, J.:

Plaintiff brought this action against an administrator to enforce an oral contract with parties now deceased.

Plaintiff alleged that in the year 1894, when he was 16 years of age, his paternal uncle George W. Bateman and wife, Margaret J. Bateman, who then resided on a farm (160 acres) in Pottawatomie county, and who had no children of their own, made a verbal agreement with plaintiff that if he would come and live with them as a member of their family and aid and assist in the farm work they would treat him as a child of their own, and if he would stay with them until he was twenty-one years of age, at the death of George W. Bateman and his wife, Margaret, they would give him half of their farm, and if they should sell it during their lives they would pay him a sum of money equal to half its value, to be paid at the death of the survivor of them; and that on consultation with his parents and with their consent he accepted this offer of his uncle and aunt and accordingly he went and lived with them in dutiful obedience and service as their child until he attained his majority and for many years thereafter; and that he had never received any money or property from them or either of them but wholly depended upon this oral promise and agreement of his uncle and aunt for his compensation. He further alleged that in 1906 the farm was sold for $ 8,000; in 1907 his uncle died intestate and without issue, leaving Margaret as his sole heir at law; that his uncle had no debts and there was no administrator of his estate; that Margaret came into possession, and during her life time she kept the proceeds of the farm intact, having only spent the interest thereon; that in 1920 Margaret died, intestate, without husband or issue; and that this defendant was appointed and qualified as her administrator and he is in possession of her funds which include the proceeds of the sale of the farm; "and plaintiff avers that the said fund was so kept by the said George W. and Margaret J. Bateman during the lifetime of each for the purpose of providing means with which to pay and satisfy plaintiff's said claim against them, and survivor of them."

Plaintiff's cause of action stated these facts in two counts, to which the defendant filed a general denial, and raised the one, two, three, and five-year provisions of the statute of limitations.

On this joinder of issues, the case was called for trial, a jury empaneled, and the defendant objected to the introduction of evidence on the ground that neither count stated a cause of action, which objection was sustained, and...