Bray v. Cooper

• Decision Date: 10 April 1937
• Docket Number: 33306.
• Citation: 145 Kan. 642,66 P.2d 592
• Parties: BRAY v. COOPER et al.
• Court: Kansas Supreme Court

66 P.2d 592

145 Kan. 642

BRAY v. COOPER et al.

No. 33306.

Supreme Court of Kansas

April 10, 1937

Syllabus by the Court.

Lack of definiteness or mutuality, if any, in contract providing that testatrix and her husband would raise niece as their daughter until she was of age or as long as she wanted to stay with them and that when they were dead everything they had would be niece's, held cured by subsequent performance on part of niece by living with testatrix and her husband as their daughter during her minority.

Fact that subsequent to entering into contract to leave property to niece, testatrix executed will devising most of property to others held not to deprive niece of right to enforce contract on proof of execution of contract and performance by niece.

Evidence held to justify judgment granting specific performance of contract to make will leaving property to niece on ground that contract had been executed as alleged by niece.

Niece to whom testatrix promised to leave property in consideration that niece would live with testatrix as her daughter during niece's minority held not limited to action for compensation for services rendered after testatrix died leaving will in which property was left to others, but niece was entitled to specific performance of contract, as against contention that legal remedy was adequate.

In an action in the nature of specific performance, brought to establish an oral contract and secure the enforcement thereof, under which contract property was to be left to plaintiff at the death of the promisor, the record examined and it is held:

1. If the contract was originally lacking in definiteness or mutuality, those deficiencies were cured by subsequent performance on the part of plaintiff.

2. Plaintiff's evidence was sufficient to sustain the court's findings of fact.

3. The fact the promisor, subsequent to entering into a contract to leave her property to plaintiff, executed a will devising most of her property to others, did not deprive plaintiff of her right to enforce the previous contract which had been sufficiently established and fully performed on her part.

4. Under the contract plaintiff was not limited to an action for compensation for services rendered.

5. The demurrer to plaintiff's evidence was properly overruled.

Appeal from District Court, Crawford County; L. M. Resler, Judge.

Suit by Osie Bray against Charles Cooper and others and the First Christian Church of Pittsburg. From the judgment, the defendants Charles Cooper and others appeal.

Lee E Weeks and J. E. Schroeder, both of Kansas City, and C. S Denison, of Pittsburg, for appellants.

D. G Smith, of Girard, and C. O. Pingry and Carl Pingry, both of Pittsburg, for appellee.

WEDELL Justice.

This suit was based on two causes of action. The first was for specific performance of an oral contract according to which plaintiff was to have the property of deceased at her death. The second was to set aside a will on the ground of restraint, undue influence, and mental incapacity which will was inconsistent with the alleged contract. The trial court found in favor of plaintiff on the first cause of action and against her on the second, except in so far as the will infringed on the obligations of the contract. From that ruling all defendants except the First Christian Church of Pittsburg, appeal.

Defendants were the parties who claimed under the provisions of the will. The First Christian Church of Pittsburg, two nephews and plaintiff, a niece of the deceased, Lottie Worthington, were each bequeathed $100. The remainder of the estate was left to Charles Cooper, a brother, a sister, and another niece. The husband of Lottie Worthington had predeceased her. She had no children.

Appellants list eight specifications of error, but argue only one on this appeal, namely, the alleged error in overruling their demurrer to plaintiff's evidence. Appellee contends the appeal should be dismissed for the reason the appeal was not perfected within six months after the ruling on the demurrer. Owing to the status of this particular record, we prefer to dispose of the case on its merits. We may, therefore, turn at once to the error urged.

Plaintiff's maiden name was Osie Cummings. She married a man by the name of Bray. The deceased was the aunt of plaintiff. The trial court made findings of fact and conclusions of law. The findings made present a sufficiently clear picture of the facts and circumstances to render a further statement of the facts unnecessary. The findings of fact and conclusions of law on the first cause of action were:

Findings of Fact.

1. "That William Worthington and Lottie Worthington were husband and wife prior to and after 1903, and up until the time of the death of William Worthington; that William Worthington died about December 10, 1934, and Lottie Worthington died about April 1, 1935; that Harry Cummings and Alice Cummings were the father and mother of the plaintiff, Osie Bray and Alice Cummings, the mother of Osie Bray, was the sister of Lottie Worthington and sister-in-law of William Worthington, and the plaintiff, Osie Bray, nee, Cummings, was the niece of William Worthington and Lottie Worthington; that Alice Cummings and Harry Cummings were divorced about 1903; that Alice Cummings, plaintiff's mother, predeceased William Worthington and Lottie Worthington; that at the time of Lottie Worthington's death she left surviving her, as her heirs at law, the defendants, her brother, Charles Cooper, her sister, Maggie Burke, her nephew, Charles Stanlick, her nephew, Ellis Fossman, and the plaintiff, her niece, Osie Bray.

2. "That about December 31, 1934, Lottie Worthington made or attempted to make a will, in which she purported to give to the plaintiff, Osie Bray, $100.00; to the defendant, Charles Stanlick, $100.00; to the defendant, Ellis Fossman, $100.00, and to the defendant, First Christian Church of Pittsburg, Kansas, $100.00, and all the remainder and residue of her estate to the defendants, Maggie Burke, Charles Cooper and Hazel Greenwood, to be equally divided among them, share and share alike, that said will was admitted to probate on or about April 11, 1935, and Charles Cooper, who was named in said will as executor, was appointed executor and is now acting as executor under said appointment.

3. "That Lottie Worthington owned, at the time of her death, Lot 128 Playter's Addition to the City of Pittsburg, Kansas, the value of which is not disclosed by the evidence, and personal property of the value of about $4,524.43.

4. "After the parents of plaintiff were divorced, about the year 1903, when the plaintiff was of the age of eight years she was left by her parents in the care and custody of Lottie Worthington and William Worthington, who were, at that time, childless; that about the year 1906, the plaintiff's mother married Richard Fossman and reestablished a home and after doing so the said mother went to the home of the Worthingtons for the purpose of taking the plaintiff home with her; that the plaintiff had lived with and made the home of the Worthingtons her home from the time that she was first given into their custody by her parents until her mother came to take her to her home, a period of about three years, and during said three years the Worthingtons had become greatly attached to the plaintiff, and did not want to give up her care and custody; that when plaintiff's mother came to take plaintiff to her home, Lottie Worthington and William Worthington proposed to plaintiff's mother that if she would let Osie, the plaintiff, stay there with them and let them have control over her and not interfere with her in any way, that they would raise Osie as their daughter until she was of age, or as long as she wanted to stay with them, and that when they were dead they would leave everything they had to Osie, and plaintiff's mother agreed to let Osie stay with the Worthingtons under such conditions and relinquished to the Worthingtons her right to care, custody, and control of plaintiff; that thereafter the plaintiff lived with the Worthingtons and was treated and loved by them as their daughter, and the plaintiff treated the Worthingtons as her parents and gave to them the services, affection and obedience of a daughter; that the plaintiff lived in the home of the Worthingtons until her marriage in 1915, and after that at various times the plaintiff and her husband lived with the Worthingtons and visited with the Worthingtons and the Worthingtons visited with the plaintiff and her husband at various places, and that during all of said time up until the time of the death of the Worthingtons the plaintiff was treated as the child of the Worthingtons and was referred to, particularly by Lottie Worthington, as her child, and the plaintiff and her husband were referred to by Lottie Worthington as her children; that the plaintiff broke an engagement with one John Fossman because the Worthingtons did not approve of the match and, at the time of plaintiff's marriage in 1915, the plaintiff, in obedience to the request of Lottie Worthington, was married in her home as her own daughter; that Lottie Worthington told several persons, among them being plaintiff's husband, Roy C. Bray, and the former fiance of the plaintiff, John Fossman, and a friend of Mrs. Worthington's, May Bray, and a former suitor of plaintiff, Clarence Ogan, of the agreement that she would raise the plaintiff like her...