Cassilly v. Cassilly

• Decision Date: 17 December 1897
• Parties: CASSILLY v. CASSILLY.
• Court: Ohio Supreme Court

49 N.E. 795

57 Ohio St. 582

CASSILLY v. CASSILLY.

Supreme Court of Ohio.

December 17, 1897

Error to superior court of Cincinnati.

Appeal by Margaret Cassilly against Thomas F. Cassilly. A judgment for plaintiff in the superior court of Cincinnati was affirmed at general term, and defendant brings error. Reversed.

Syllabus by the Court

1. A written instrument in the following terms: ‘In consideration of five hundred dollars ($500) to me this day paid by Thomas Cassilly, I hereby release and give to him all the interest I have, or may ever have, in the estate of Francis Owens, deceased, whether said estate, or any part thereof, passes, or may ever pass, to me by descent, bequest gift, devise or otherwise. I further agree, in consideration of said five hundred dollars, not to contest the probate of the will of the late Francis Owens, dated February 25, 1890 and not to bring an action, or to be a party to the same, to set said will aside. Margaret her X mark Cassilly. Witness Edw. A. Foy. Wm. F. Foy. Dated July 26th 1890,’-embodies a contract which cannot be contradicted by parol evidence.

2. Where mother and son enter into a written contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established, that she could not read writing, and, on account of the confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument when it was read to her, afford no ground to treat it as a nullity, or to permit her to contradict its terms by parol evidence, when interposed by the son as a defense to an action at law brought by her against him.

Outcalt & Granger, for plaintiff in error.

C. W. Baker, for defendant in error.

BRADBURY, J.

The plaintiff in error, Thomas Cassilly, is the son of the defendant in error. In the year 1890, her brother, Francis Owen, died in Cincinnati, Ohio, unmarried, leaving a will, by the terms of which her son Thomas, plaintiff in error, was made the principal legatee. The testator left surviving him two sisters, the defendant in error, and Ellen Goddard, and possibly one brother. However, as they had not heard from the latter for many years, he was supposed to be dead. These two sisters of the testator were not satisfied with the provisions of the will of their brother, and were considering the expediency of contesting its validity. Wishing to prevent this, the plaintiff in error sought a compromise with his mother, the defendant in error, and also with his aunt, Ellen Goddard. He first entered into a written contract of settlement with his mother, by the terms of which he paid her $500 in consideration, among other things, that she would neither bring an action herself to contest the validity of the will, nor become a party to such action if brought by another. He and his mother subsequently disagreed respecting the amount, which, by the terms of the settlement, was to be paid to her; he claiming that the amount was $500, and she contending that she was to be paid whatever sum her son should pay to her sister in case the two latter should come to a settlement. Afterwards her son and sister came to an agreement by which the latter was paid $2,000. Thereupon the defendant in error brought an action to recover the difference between what had in fact been paid to her under the settlement with her ($500) and the sum paid to her sister under the settlement with the latter. In her petition she averred that by the terms of the settlement between herself and her son, the latter was to pay to her whatever he should pay to her sister according to the terms of the settlement had by him and the sister. The defendant below, by answer, among other matters, set up in bar of the action that he and the plaintiff below had come to an agreement by the terms of which he was to pay, and had paid her $500 in full settlement of all rights she might have in the estate in question. The action was founded on a contract by the terms of which Mrs. Cassilly had released to her son (defendant below) whatever interest she might have in the estate of her deceased brother. The son rested his defense upon the same contract. Both agreed that she had released that interest to him. The amount to be paid to her by him in consideration of such release was the only matter in dispute between them. When the cause came on for trial in the superior court, the son (defendant below) introduced in evidence, in support of his contention in this respect, the following written instrument:

‘In consideration of five hundred dollars ($500.00) to me this day paid by Thomas Cassilly, I hereby release and give to him all the interest I have, or may ever have, in the estate of Francis Owens, deceased, whether said estate, or any part thereof, passes, or may ever pass, to me by descent, bequest, gift, devise, or otherwise. I further agree, in consideration of said five hundred dollars, not to contest the probate of the will of the late Francis Owens, dated February 25, 1890, and not to bring an action, or to be a party to the same, to set said will aside.

‘Margaret her X mark. Cassilly.

‘Witnesses: Edw. A. Foy. Wm. F. Foy.

‘Dated July 26th, 1890.’

While this instrument bears the form of a...