Darnell v. Darnell
| Decision Date | 01 November 1943 |
| Docket Number | 38496 |
| Parties | DARNELL v. DARNELL et al |
| Court | Missouri Supreme Court |
Ward & Reeves, of Caruthersville, for appellants.
O. E Hooker, of Caruthersville, and R. J. Kiley, of Portageville for respondent.
BRADLEY, Commissioner.
Action for specific performance of an alleged oral contract to convey a described forty acres of land in Pemiscot County to plaintiff. The trial court found for plaintiff, and defendants appealed.
Thomas J. Darnell 'past seventy', died December 26, 1940. He did not marry until September 14, 1924, on which date he married Helen Choin, who is administratrix of his estate and a party defendant, both in her representative and individual capacity. Defendants, Dola Dean Darnell and George DeLisle Darnell, are minor children of the marriage. Jack Darnell, plaintiff, was born May 1, 1921, and is the illegitimate son of Thomas J. Darnell and Ruth Wilkins, now Ruth Wilkins Wheeler.
Pertinent to the ground upon which the learned chancellor below based his decree of performance, plaintiff alleged: 'That in the course of time the said Thomas J. Darnell and the said Ruth Wilkins separated and lived separate and apart (they had lived together though not married); that at the time of said separation the said Thomas J. Darnell entered into a contract, oral in nature, with the said Ruth Wilkins whereby it was mutually agreed that in consideration of the said Ruth Wilkins permitting him, the said Thomas J. Darnell, to retain the custody, care and control of this plaintiff exclusively as his son in the home of the said Thomas J. Darnell and the right to exclusively control and supervise the rearing and education of this plaintiff as his son, he, the said Thomas J. Darnell promised the said Ruth Wilkins to give this plaintiff an interest in his estate as an heir and specifically to deed to this plaintiff in addition thereto the following described premises located in Pemiscot County, Missouri: The northeast quarter of the northwest quarter of section 29, township 20, range 13 east in Pemiscot County, Missouri, consisting of forty acres; together with a team to work the same.
'That the said Ruth Wilkins, relying on the said contract and the said promise of the said Thomas J. Darnell, and for the benefit of Jack Darnell, the plaintiff, surrendered the said Jack Darnell to the said Thomas J. Darnell and permitted the said Thomas J. Darnell to have the exclusive care, custody and control of the said Jack Darnell and the exclusive supervision of his rearing, training and education as the son of the said Thomas J. Darnell.
'That the said Ruth Wilkins performed all the conditions of the said contract on her part to be performed and that the said Thomas J. Darnell failed to deed the said premises to this plaintiff or to provide him with a team or to make any provisions for him by will or otherwise. * * *
'Plaintiff further states that he continued to live with and in the home of the said Thomas J. Darnell, as his son, and was educated, trained, and reared by the said Thomas J. Darnell, as his son, even after the said Thomas J. Darnell was married to his wife, Helen Darnell, administratrix herein; that this plaintiff was educated by the said Thomas J. Darnell until such time as this plaintiff was able to work; that the said Thomas J. Darnell was engaged in farming in Pemiscot County, Missouri; that the said Thomas J. Darnell repeatedly promised this plaintiff that if he would remain with him as his son, help him with his work and give him the love and affection of a son, he, the said Thomas J. Darnell would give to him an interest in his estate as an heir and in addition thereto would specifically deed to him the following described premises located in Pemiscot County, Missouri: The northeast quarter of the northwest quarter of section 29, township 20, range 13 east in Pemiscot County, Missouri, consisting of forty acres; together with a team to work the same.
'That this plaintiff, relying on said promise, after school hours, assisted the said Thomas J. Darnell in his work of farming, cutting timber, working the saw mill and doing chores and other labors that his years and ability made possible; that after discontinuing school this plaintiff continued to work for the said Thomas J. Darnell as aforesaid, and at all times treated the said Thomas J. Darnell with respect, love and affection that a father receives from a son, until the decease of the said Thomas J. Darnell; that the said Thomas J. Darnell received the benefit of the services, love and affection of this plaintiff until his death.'
Plaintiff also alleged that the real estate left by his father consisted of 760 acres, which was described, all in Pemiscot County, and that the 'personalty was appraised at $ 15,000.'
Guardian ad litem was appointed for the minor defendants. The answers denied the alleged contract; denied that such a contract was valid, and alleged that if such a contract as claimed was made and was valid, 'then said contract became inoperative and not binding on the said Thomas J. Darnell and the defendants herein for the reason that the plaintiff herein failed and refused to perform the same and failed and refused to live with the said Thomas J. Darnell and to give to the said Thomas J. Darnell his services until he was twenty-one years of age; that the plaintiff herein became disobedient many years ago and refused to live with the said Thomas J. Darnell, and by reason of which facts the contract set up and pleaded in plaintiff's petition became inoperative and ineffectual and not binding upon said Thomas J. Darnell and the defendants herein.' The reply was a general denial of new matter.
The trial court made a finding of facts and conclusions of law. The finding recites that 'it is further claimed that when Ruth Wilkins left the Darnell home, Thomas J. Darnell requested her to leave the boy with him, have him take the name of Darnell and he would educate the boy, make him an heir and, in addition, give him forty acres of land, as above described, a team and tools with which to work the land.
'I do not find the evidence sufficient to support the claim that Thomas J. Darnell did make plaintiff, Jack Darnell, an heir or give him an interest in his estate equaling that of an heir, neither do I find the evidence sufficient to support the claim that Thomas J. Darnell agreed to give Jack Darnell a team and tools with which to cultivate the forty acres of land above mentioned; but I do find the evidence sufficient to support the claim that he would give Jack Darnell forty acres of land and often pointed out to his friends and neighbors the forty acres that he had given Jack Darnell, which is the northeast quarter of the northwest quarter of section twenty-nine, township twenty, range thirteen east in Pemiscot County, Missouri.
'I further find that plaintiff, Jack Darnell, is entitled to specific performance of that part of the contract conveying the above described land to him.'
The contention of the defendants is that the evidence of plaintiff's mother was incompetent, and that absent her evidence, the contract upon which the decree is based was not proven, and that 'even if the testimony of Ruth Wilkins Wheeler is held to be competent, it was so ancient, indefinite and uncertain that a court of equity will not hold it to be such a contract that can be specifically performed.'
Over objection and exception, plaintiff's mother testified that she and Thomas J. Darnell lived together, but were not married; that as a result of their cohabitation plaintiff was born; that she and Darnell lived together 'almost three years' after Jack was born; that when she left the Darnell home, Darnell said that he wanted to keep Jack ...
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