Chandler v. Dye

• Decision Date: 10 December 1887
• Citation: 15 P. 925,37 Kan. 765
• Parties: J. F. CHANDLER, as Administrator of the Estate of Byron E. Dye, v. MARY I. DYE
• Court: Kansas Supreme Court

15 P. 925

37 Kan. 765

J. F. CHANDLER, as Administrator of the Estate of Byron E. Dye, v. MARY I. DYE

Supreme Court of Kansas

December 10, 1887

Error from Miami District Court.

THE opinion states the facts. Judgment for plaintiff Dye, at the October Term, 1885. The defendant brings the case to this court.

Judgment reversed and cause remanded for new trial.

Thos M. Carroll, for plaintiff in error.

Brayman & Sheldon, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This action was originally commenced on October 18, 1884, in the probate court of Miami county, by Mary I. Dye, by filing an account for $ 3,166 against the estate of Byron E. Dye, her former husband, for the support, education and maintenance of their minor son, Robert C. Dye. The administrator, J. F. Chandler, filed a motion requiring her to itemize her account, which motion was sustained, and on November 11, 1884, an amended statement, containing the various items of her account, amounting to $ 3,628.50, was filed. Afterward a trial was had before the probate court, and the claim disallowed on the authority of Harris v. Harris, 5 Kan. 46. An appeal was then taken by Mary I. Dye to the district court, and on February 2, 1885, she filed her first amended petition. To this petition a demurrer was interposed, which was sustained by the court on the authority of Harris v. Harris, supra. Having failed to establish her account as a claim against the estate of her former husband, she then, with leave of the court, and on March 24, 1885, filed her second amended petition. In this petition, and for the first time, she set up a contract between herself and Byron E. Dye, under which contract, she alleged, he was to pay her for the support, education and maintenance of their minor son. By the consent of the parties, and the order of the court, the cause was then referred to a referee for trial, and on June 18, 1885, a trial was had before the referee. The referee found that there was such a contract as was alleged in the plaintiff's petition, and found that the sum of $ 2,747.50 was a reasonable sum for the support, education and maintenance of said minor son, and that Mary I. Dye was entitled to a judgment for this amount against the estate of Byron E. Dye. A motion to set aside the referee's report on various grounds, and also a motion for a new trial on the ground of newly-discovered evidence, were filed by the defendant, and overruled by the court, and the defendant then brought the case to this court for review. All the evidence heard on the trial before the referee is preserved in the case, and brought to this court.

The only question presented to this court is, whether the evidence establishes a contract between Byron E. Dye and the plaintiff, whereby he agreed to pay her for the support, education and maintenance of their minor child. The facts in this case, stated in brief, are substantially as follows: Byron E. Dye and Mary I. Dye were married on May 14, 1855, and were divorced on June 16, 1877, by a decree of the circuit court of Jackson county, Missouri. During their marriage they had two children -- one a girl, Frankie Dye, and the other a boy, Robert C. Dye, aged respectively at the date of the divorce, about 18 and 8 years. The father supported and maintained the daughter. The court granting the divorce gave the custody and control of the minor son to the mother. In November following the granting of the divorce, Mary I. Dye left Kansas City, Missouri, and removed to Chicago, Illinois, taking with her their minor son, Robert, where they have since resided. Byron E. Dye continued to reside in Kansas City until March, 1881, having about that time married again, when he with his wife removed to Miami county, Kansas, where they continued to reside up to the date of his death, which occurred on September 26, 1883. At the time of the divorce, June 16, 1877, the wealth of Byron E. Dye was variously estimated at from $ 40,000 up to $ 50,000; his most intimate business acquaintances placing it at about $ 45,000. By the decree of divorce, Mary I. Dye received of this amount $ 5,000 as alimony. This is all that she was shown to have received, until after the trial, when it was shown on the hearing of the motion for a new trial, that by an amicable arrangement between herself and Dye, she in fact received, in all, about $ 16,000. Mrs. Dye could not testify in this case in her own behalf with respect to any transaction or communication had personally between herself and Byron E. Dye, which occurred before the divorce was granted. (Civil Code, §§ 322, 323.) But with respect to all other matters, and all matters occurring since the divorce, she was as competent to testify as any other person. About the only evidence in the case tending to show that any contract was ever made between Byron E. Dye and Mrs. Dye for the support, education and maintenance of their minor son, is the following.

Mrs. Rilla Webster testified with respect to a conversation had between herself and Mr. and Mrs. Dye, on the day that, but before, the divorce was granted, among other things as follows:

"I started to leave the room, when Byron called me back and said, 'I wish you to hear what I have to say.' He then said, 'he would have to support Robert anyway.' This was said by him in connection with what he had been saying about the amount he would give his wife, Mary I. Dye. He seemed to be defending himself on account of the small amount he was giving Mrs. Dye."

John F. Gregory, a cousin to Byron E. Dye, testified among other things as follows:

"I was intimately acquainted with Byron E. Dye during his lifetime. I had several conversations with him in relation to his boy, Robert, since he (Dye) and Mary I. Dye were divorced. He said he had Robert to support, and also that he had his daughter, Frankie, to support. This conversation was after he was married to his second wife, Augusta Kreinhop, and before his daughter was married. At another conversation, about a year afterward, he spoke in relation to the support of his children. He seemed to speak as though the support of his daughter was costing him too much money. He said it was better for Robert to be with his mother, for he did not want the care of him; that it would cost him less for his mother to take care of him."

On February 29, 1880, Byron E. Dye wrote a letter to Mrs. Dye, which contains, among other things, the following:

"Mary, I have made arrangements with Willoughby, Hill & Co., clothiers, corner Clark and Madison, to furnish Robert his clothes on my credit. . . . I know you do not want to ask me for the money for his clothes, and I cannot tell when he needs them, nor how much to send; and furthermore, I neglect it when I am not where he is. I hope to be in a position, when he becomes of the proper age, to give him such education as his tastes and future prospects in life will require. I am highly pleased with his progress. . . . While I do not want to be extravagant, I want him to look nice."

On December 12, 1880, Byron E. Dye wrote a letter to his son, which contains, among other things, the following:

"I hope you will write me a letter at least once a month, and not wait until you want some more clothing."

H. H. Grimshaw testified with regard to a conversation had between himself and Byron E. Dye, in 1880, or in 1881, as follows: "He said he had a boy to support, who was at school." On April 20, 1882, Byron E. Dye wrote a letter to his son, which contains, among other things, the following:

"DEAR ROBBIE: Yours of the 22d duly received. Come as soon as you want to. If your mother will advance your ticket and expenses, I will send it to her as...