Deboe v. Brown
| Decision Date | 26 November 1929 |
| Parties | Deboe et al. v. Brown. |
| Court | United States State Supreme Court — District of Kentucky |
2. Frauds, Statutes of. — It is the general rule than an oral agreement to devise real estate to another is within the statute of frauds and cannot be enforced.
3. Wills. — The measure of damages for breach of a contract to devise is the value of the property agreed to be devised.
4. Execution. — In suit to enforce lien of execution on realty devised to judgment debtor by his wife for life, with remainder to a son as reward for taking care of them, such son could not set up his ownership of property because of his mother's promise to devise it to him; his remedy, if any, being to recover reasonable value of services rendered.
5. Wills. — Meaning of will clearly expressing testator's intent without latent ambiguities must be determined from language used by testator in will itself, and neither extrinsic parol evidence nor written evidence is admissible for purpose of ascertaining what testator intended to say or to alter, contradict, add to, or subtract from terms of will.
6. Continuance. — In suit to enforce lien of execution on realty devised to judgment debtor for life with remainder to his son, refusal of continuance to take deposition of nonresident witness as to testatrix's contract to devise realty to son held not error such evidence being incompetent either to show meaning of will different from that apparent on its face or that property automatically passed to son because of such promise.
7. Judgment. — A judgment should be read as a whole to determine its meaning.
8. Appeal and Error. — Error, if any, in judgment susceptible of construction as directing sale of either entire estate or life estate in lot for satisfaction of prior judgment against one clearly held to have only life estate was harmless, as no more than life estate could be sold under judgment.
9. Wills. — Will providing that testatrix's husband "shall have the use and benefit of all my property . . . so long as he shall live," and that her son should receive all of remainder, except sums specifically bequeathed, after husband's death, vested in husband only a life estate, which was subject to his debts to extent of such estate, unless exempt as homestead.
10. Homestead. — Ky. Stats., sec. 1702, denying right of homestead exemption to purchaser of land as to pre-existing debts, does not apply where land was obtained through descent, devise, or gift.
11. Homestead. — It is essential to creation of homestead, but not to continuance of the right, that debtor should have a family, and loss of family by death or marriage does not deprive him of homestead.
12. Homestead. — Debtor is entitled to a homestead if he is a housekeeper and has residing with him any person whom he is under a natural or moral obligation to support.
13. Homestead. — One acquiring life estate in land under will of his deceased wife when there was no one residing with him whom he was naturally or morally obligated to support was not entitled to a homestead, though a son probably resided with him, where he was dependent on such son, who was bound by contract with wife and provisions of will to support him.
Appeal from Caldwell Circuit Court.
R.W. LISANBY for appellants.
ALBERT MORSE and S.D. HODGE for appellee.
Affirming.
On the 3d day of November, 1916, the appellee, J.L. Brown, obtained a judgment in the Caldwell circuit court for $150 against W.H. Deboe, Sr., with interest from that date, with $10.25 costs. Execution was issued and returned unsatisfied in whole, or in part.
The wife of W.H. Deboe, Mrs. N.J. Deboe, died in 1927 leaving a will. The first paragraph of her will is as follows: "It is my will and desire that my son, W. H. Deboe, Jr., shall take care of and administer to the wants of myself and my beloved husband, W.H. Deboe, Sr., until our demise, and shall provide decent burial for each of us, and that he shall receive for such labor the reward hereinafter devised to him."
The second paragraph of her will is as follows:
Mrs. N.J. Deboe, at the time of her death, was the owner of a lot on the east side of McNary street fronting thereon 68 feet, and running back between two parallel lines 95 feet to the line of Mrs. J.B. Groom in the city of Princeton, and on this lot were two dwelling houses.
After the death of Mrs. Deboe, an execution was issued from the office of the clerk of the Caldwell circuit court, and the sheriff made this return on it:
Thereafter the appellee instituted suit in the Caldwell circuit court reciting the facts above set out in his petition, and alleging that by reason of the levy of the execution he had a lien on the lot and the house to secure the amount of his judgment, interest, and costs, in the sum of $253.75. The property is described in the petition as the levy made on the execution, with the additional description that it is the same real estate devised to W.H. Deboe, Sr., by his deceased wife, N.J. Deboe. The appellants filed a demurrer which was overruled. They then filed an answer traversing the allegations of the petition in the main and pleading that several years prior to the death of Mrs. N.J. Deboe she made an agreement with her son, W.H. Deboe, Jr., that she would will the property in controversy to him in consideration of his caring for her and her husband during the remainder of their lives, and alleging that he had complied with his part of the contract and for that reason, the property was his. There was a plea of the exemption statutes in favor of W.H. Deboe, Sr., if it should be held by the court that he had an interest in the property.
The able attorney representing appellants has pointed out with particularity in his brief the errors on which he relies for a reversal, six in number: (1) The court erred in overruling the demurrer to the petition. (2) The court erred in striking from the answer the plea of the contract to convey by will the property to W.H. Deboe, Jr., in consideration of his caring for and supporting his mother and father during their lives. (3) The court erred in overruling the motion of appellants for a continuance. (4) The court erred in his judgment in that it is susceptible of the construction that it directs a sale of the property outright and not only a life estate. (5) The court erred in holding that W.H. Deboe, Sr., owned a life estate in the property. (6) The court erred in refusing to sustain the plea that the property was exempt from the debts of W.H. Deboe, Sr.
We are of the opinion that the demurrer to the petition was properly overruled. The only objection made to it in the brief is that the description is not sufficient. The property is specifically described so that it could be identified by the description given. It is suggested that the reference to it as the property willed to W.H Deboe, Sr., by his wife is only a conclusion of the pleader. We think the description was sufficient without that, but the will was filed as an exhibit with the petition, and while the property is not described in the will, it is described in the petition with particularity which, in our judgment, was sufficient.
The second alleged error is that the court struck from the answer the plea relating to the contract between Mrs. Deboe and her son. It is the general rule that an oral agreement to devise real estate to another is within the Statute of Frauds and cannot be enforced. Bowling v. Bowling's Adm'r, 222 Ky. 396, 300 S.W. 876. There is a line of cases holding, however, that where the benefit to the beneficiary of such a promise cannot be measured in money, there is no way to determine the amount of the recovery other than by the pecuniary standard fixed by the parties to the contract. The measure of damages for the breach of a contract to devise is the value of...
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