Bowling v. Bowling's Administrator

• Decision Date: 16 December 1927
• Citation: 222 Ky. 396
• Parties: Bowling v. Bowling's Administrator.
• Court: United States State Supreme Court — District of Kentucky

222 Ky. 396

Bowling v. Bowling's Administrator.

Court of Appeals of Kentucky.

Decided December 16, 1927.

1. Wills. — Promise of father to mother of illegitimate child to provide for child out of his estate, in consideration of mother's agreement not to institute bastardy proceedings, is valid and enforceable.

2. Frauds, Statute of. — Generally, an oral agreement to devise real estate to another is within the statute of frauds and cannot be enforced.

3. Wills. — Measure of damages for father's breach of oral contract to devise property to illegitimate child, in consideration of mother's agreement not to institute bastardy proceedings, is value of property agreed to be devised as constituting in part standard of value agreed on by father for relinquishment or surrender by the mother of such right.

4. Contracts. — In action by illegitimate child for damages for breach of contract alleged to have been entered into between father and mother, whereby, in consideration of mother's refraining from instituting bastardy proceedings, father agreed to support plaintiff and make him an equal heir, evidence as to such contract being based on an immoral and illegal consideration because agreement for future illicit relations constituted part of consideration therefor held for jury.

5. Contracts. — Contract whereby father of illegitimate child agreed to support him and make him an equal heir is not void, even though illicit relations continued between parents, if there is no stipulation in contract for continuance of such relations.

Appeal from Clay Circuit Court.

W.O.B. LIPPS and W.W. RAWLINGS for appellant.

ROY W. HOUSE and MARTIN T. KELLY for appellee.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

The appellant, Lawrence Bowling, the illegitimate son of Daniel Bowling, brought this action against James Bowling, administrator of the estate of Daniel Bowling, for damages for the breach of a contract alleged to have been entered into between Daniel Bowling and appellant's mother, Flora Reiser, whereby it was agreed that if she would refrain from instituting bastardy proceedings against Daniel Bowling he would support appellant and make him an equal heir with his other children.

It was alleged in the petition that Daniel Bowling at the time of his death owned property worth $40,000 and that he left ten legitimate children, and that by reason of the alleged contract plaintiff was entitled to recover of the administrator a sum equal to one-eleventh of $40,000, or $3,636, subject to the rights of Daniel Bowling's widow therein. At the conclusion of the testimony for the plaintiff, the trial court directed the jury to render a verdict for the defendant, and, from a judgment dismissing plaintiff's petition, this appeal is prosecuted.

The trial court peremptorily instructed the jury to find for the defendant because (1) the contract alleged and proved was for the devise of realty and unenforceable under the statute of frauds, and (2) the contract was made in consideration of future illicit intercourse, and therefore contrary to public policy and void.

The evidence discloses that at the time appellant was born his mother was 14 or 15 years of age, and that Daniel Bowling was married and about 40 years of age. About three weeks after appellant's birth, Daniel Bowling went to the home of a brother of appellant's mother where she was staying and told her, as testified to by the witness, Flora Reiser:

"If I would not swear the child to him, he would support him and help me raise him and make him an equal heir with the rest of his children."

Bowling did contribute now and then to appellant's support.

It is well settled in this state that the promise of a father to the mother of his illegitimate child to provide for the child out of his estate, in consideration of the mother's agreement not to institute bastardy...