Cathcart v. Myers
| Decision Date | 08 April 1916 |
| Docket Number | 20075[a1] |
| Citation | 156 P. 751,97 Kan. 727 |
| Parties | CATHCART v. MYERS ET AL. |
| Court | Kansas Supreme Court |
In a suit against the legal representatives and devisees under the will of a deceased person to compel the specific performance of a contract made by the testator, the facts stated in the opinion are held sufficient to support the trial court’s findings that the deceased made a contract with plaintiff’s father, when she was 14 years of age, agreeing to adopt her as his daughter, and at his death to leave her all his property, in consideration of the father’s surrender to him of her care, custody, control, society, and education and the further finding that the contract had been fully performed by the plaintiff and her father.
Appeal from District Court, Jackson County.
Action by Margaret C. Cathcart against John Q. Myers, administrator of the estate of Felix C. Duffy, deceased, and others. From a judgment for plaintiff, defendants appeal. Affirmed.
I. T Price, of Holton, Garver & Garver and McClintock & Quant, all of Topeka, and Edwin A. Krauthoff, of Kansas City, Mo., for appellants.
Woodburn Bros., of Holton, and A. E. Crane, of Atchison, for appellee.
The action in the district court was brought by the plaintiff to enforce specific performance of an alleged oral agreement between her father, Wm. Cooney, and Felix C. Duffy, deceased, by which it is claimed the latter agreed to leave her all the property of which he might die seised in consideration of her father’s surrender to him of her custody and permitting him to adopt her. The district court found that such contract was made, and adjudged that plaintiff should have all the estate of Felix C. Duffy, subject to the payment of debts. From that judgment defendants appeal.
Felix C. Duffy was a Catholic priest of the parish at Monmouth, Ill., from 1882 to 1887 and of a parish at Kewanee, Ill., from 1888 until 1897, when he removed to Danville, Ill., and was in charge of the parish there until 1910. Plaintiff’s aunt, Mrs. Mary Bailey, then Mary Cooney, was housekeeper for Father Duffy. Her brother, Wm. Cooney, had removed from Illinois to Graham county, Kan., where he took a claim and lived with his family. Mrs. Bailey visited her brother on several occasions, and in 1890 took the plaintiff, who was seven years old, with her to Kewanee, and the plaintiff lived with her in the parish house with Father Duffy. At that time Wm. Cooney was in poor financial condition and had seven children. Plaintiff remained in the parish house until her aunt’s marriage, when she made her home with the Baileys in Kewanee. After plaintiff left the parish house in 1892, Father Duffy frequently visited her at the Bailey home, and she visited him at the parish house, and they became much attached to each other. He made her presents of various kinds, dresses and other apparel. She was taken sick with typhoid fever while at her aunt’s home, and Father Duffy took her to his house and provided a trained nurse and medical attention, paying all the expenses of her sickness. He was a distant relative of the Cooney family, and when Margaret’s mother died in 1894 in Graham county, Kan., he brought the child to the funeral and preached the sermon. In the fall of 1896 Father Duffy visited Wm. Cooney in Kansas and offered to adopt Margaret, and said that if Cooney would consent to the adoption, he would maintain and educate her and give her all the property he possessed at his death. The proposal was not accepted by Cooney at this time. In January, 1897, Father Duffy again visited Wm. Cooney and repeated his offer. Wm. Cooney testified that at this time Father Duffy entered into a parol contract with him, by the terms of which Cooney agreed to surrender to him the right to the care, control, and custody of plaintiff, the right to have and receive plaintiff’s obedience, society, and love in all respects as though she were his own child, and Cooney was to consent to an adoption of plaintiff by Father Duffy, in consideration of which the latter agreed to accept the plaintiff as his own child, care for her and raise and educate her, adopt her and make her his heir, and further agreed that she should receive whatever property he possessed at his death. In pursuance of this agreement Cooney surrendered control and care of plaintiff to Father Duffy, and on the following day, January 14, 1897, Father Duffy and Wm. Cooney went before the probate court of Jackson county at Holton, where the plaintiff was legally adopted by Father Duffy.
Immediately thereafter Father Duffy returned to Kewanee and informed Mrs. Bailey, his former housekeeper, of the terms of this agreement, and requested her to inform the plaintiff, which she did. The foregoing statement of facts is taken substantially from the findings of the trial court. In addition thereto, the court made findings that Wm. Cooney fully performed his part of the agreement, and that plaintiff on her part at all times complied with the terms of the contract, yielding to him the full duty of child to a father; that during the remainder of his life Father Duffy at all times enjoyed to the full the love and affection of the plaintiff and her society in all respects as desired by him, visiting with her at the home of the Baileys, and that she visited him at Chicago and other places and joined him in a trip to Europe. The court further finds that Father Duffy complied with the contract in part; that he adopted the child and educated her and looked after her welfare during her schooling and afterward; that when she contemplated marriage he was pleased with her choice and consented thereto; that after her marriage in 1909 to Sloan Cathcart, he provided a house for her and her husband, and paid the expense of improving it.
After her marriage Father Duffy lived for a time in her home with her husband, while she was absent taking treatment for an affection of the eyes. He made large financial investments in and near Mayetta, Kan., where plaintiff and her husband lived, and did so in the belief that it would be for her best interests. The court further finds that in all respects he continued to manifest a natural father’s interest in and affection for her, and complied with all the terms and conditions of the agreement with Wm. Cooney, except that he failed and neglected to give her the property he had at his death.
At the time of making the contract with Wm. Cooney, Father Duffy owned 200 acres of land near Mayetta, subject to a mortgage of $3,000. He was receiving, by way, of salary and perquisites of his calling, about $1,400 a year, with the free use of the parish house. The court finds, however, that in 1905 he was given a deed for a tract of land in Illinois, which he afterward sold for $54,000, and that during seven years ending in 1909 he served as a trustee of the estate of Michael Kelly at Danville, Ill., and for his services received the sum of $25,000; that at the date of his death Father Duffy owned real estate, situated for the most part in Jackson county, stock in a bank at Mayetta, an interest in several business enterprises in Mayetta, together with property in Illinois and Ireland; and that he was indebted to a large amount, the exact total of which had not been determined.
Additional findings of the court are:
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Shirk's Estate, In re
...with care the evidence offered to sustain the contract relied upon. This court and others have frequently so ruled. Cathcart v. Myers, 97 Kan. 727, 732, 156 P. 751; James v. Lane, 103 Kan. 540, 549, 175 P. 387. Where the evidence to establish the parol contract relied upon consists of the t......
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In re Henry's Estate
... ... Phillips v. Bishop, 92 Kan. 313, 140 P. 834; ... Smith v. Cameron, 92 Kan. 652, 141 P. 596, 52 ... L.R.A.,N.S., 1057, and citations; Cathcart v. Myers, ... 97 Kan. 727, 156 P. 751; Taylor v. Holyfield, 104 ... Kan. 587, 180 P. 208; Lyons v. Lyons, 114 Kan. 514, ... 220 P. 294; Greiner v ... ...
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Harris v. Morrison
...pleaded and proved was not a contract to make a will. It was a contract very similar to the one which was set out in Cathcart v. Myers, 97. Kan. 727, 156 P. 751, which was upheld by this court. (See, also, the cases cited under the sixth heading of this opinion.) 10. The defendant testified......
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Woltz v. First Trust Co. of Wichita
...of evidence, for they offer a great temptation to set up fraudulent claims against the estates of deceased persons. Cathcart v. Myers, 97 Kan. 727, 732, 156 P. 751; James v. Lane, 103 Kan. 540, 549, 175 P. 387. in the nature of specific performance, the theory on which the courts proceed is......