Burnett v. Hudson

• Decision Date: 30 December 1920
• Docket Number: No. 20S36.,20S36.
• Citation: 228 S.W. 462
• Parties: BURNETT v. HUDSON et al.
• Court: Missouri Supreme Court

228 S.W. 462

BURNETT v. HUDSON et al.

No. 20S36.

Supreme Court of Missouri, Division No.

December 30, 1920.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Dora E. Burnett against Theodore Hudson and others. Judgment for plaintiff, and defendants appeal. Affirmed.

N. T. Gentry, of Columbia, for appellants. Gillespy & Conley, of Columbia, for respondent.

JAMES T. BLAIR, P. J.

This is an appeal from a judgment for plaintiff in a suit she brought to enforce an agreement whereby, she alleges, her uncle, James D. Duane, contracted to devise to her his property. James D. Duane died intestate in 1916. The contract to devise is alleged to have been made in 1905. Duane had never married. The defendants are nieces and nephews, grandnieces and grandnephews of Duane. Real estate of the value of $800, and some persgnalty constituted his estate. The trial court called a jury, 9 of whom signed a finding that the contract was proved. The court adopted this finding, and decreed accordingly. Three questions are raised. They concern (1) the overruling of a motion to make the petition more definite and certain; (2) the refusal of requested instructions; and (3) the sufficiency of the evidence when tested by the applicable rule.

I. By answering over and going to trial upon the merits, appellants waived the overruling of their motion to make more definite and certain. Sperry v. Hurd, 267 Mo. loc. cit. 639, 185 S. W. 170.

II. The assignments of error based upon the refusal to give requested instructions to the jury, which the trial court called to advise it upon the questions of fact, are without force, since the decree is the chancellor's on both facts and law, and is to be tested here as such. Hall v. Harris, 145 Mo. loc. cit. 620, 47 S. W. 506.

III. The real question is whether respondent's evidence measures up to the requirements of the rule applicable in a case of this kind. The petition alleges:

"That in the year 1905 * * * James D. Duane entered into an agreement with plaintiff by which in consideration of plaintiff looking after said James D. Duane and performing such services as he required when he was sick and performing such other services as he required when he was well, and looking after his burial, when he died, the said James D. Duane undertook and agreed by his last will and testament to devise and bequeath to plaintiff all of the property of which he died seized;" that respondent performed the terms on her part, and Duane failed to perform on his part, and died intestate in 1916.

This suit was begun in 1916, and the trial was had in April, 1917.

Arthur Burnett, respondent's son, testified to the making of the contract pleaded between his great uncle and his mother. He further testified that Mr. Duane was at respondent's home in the summer of 1905; that he had been in bad health and was sickly, and would come to respondent's home, and at the time the contract was made was staying there, was sick; that he was suffering from abscesses on the head and face; that he remained at respondent's home for three months (other witnesses made the time longer) after the contract was made; and that she waited on"him, dressed the abscesses, applied the medicines prescribed, and did all the necessary nursing; that in the fall of 1906 Mr. Duane again became afflicted; this time he had a carbuncle which proved quite serious; he came again to respondent's home, and was cared for there by her for three or four months; that thereafter respondent periodically would go to Mr. Duane's (her uncle's) house, where he kept bachelor's quarters, and clean the house and can fruit for him; that respondent was not paid, and was not to be paid, for these services otherwise than as contemplated by the contract. Witness said some of the appellants at times visited Mr. Duane, but he did not know of their performing any services for him. He also stated that his father and his mother (the respondent), himself and small children of the family, were present when the contract to which he testified was made. The other testimony establishes beyond doubt that the testimony of Arthur Burnett as to the illness of Mr. Duane and as to his staying at respondent's home and being attended by her at those times, as to her cleaning up his home, canning and preserving fruit for him, and frequently going to his home to perform various services there, is true. It was conclusively shown that Mr. Duane's afflictions were of such character as to require much attention in 1905 and 1906; that respondent looked after him "like a daughter would"; that she was faithfully attentive, and her uncle, Mr. Duane, had frequently so stated and commented upon it, and had frequently been heard to say, in substance, that he was going to leave her what he had, and that he "was going to fix it." He had a conversation or this kind with William Charleton a few months before his death. Shannon Nichols testified he once suggested to Mr. Duane, rather as a jest, that he (Nichols) would take care of Duane if Duane would leave him his property. Mr. Duane said No; that his intention was for respondent to wait on him, and that he was going to give her the Ashland property. Duane told the witness substantially the same thing two or three times in 1908, 1909, and 1910. It was shown Mr. Duane "expected" respondent to wait on him whenever he became and that whenever this happened he "always wanted her phoned for." The great weight of the evidence, even as viewed here in the printed record, is to the effect that respondent did for this old bachelor uncle of hers practically all that was done in the way of work and service, and that she was frequently at his house on such missions, and that this was the case during the whole period following the time at which Arthur Burnett testified the contract was made. Some of his other relatives, appellants and...