DeMoss v. Robinson
| Decision Date | 27 April 1881 |
| Citation | 46 Mich. 62,8 N.W. 712 |
| Court | Michigan Supreme Court |
| Parties | DE MOSS v. ROBINSON. |
A daughter-in-law, having some money of her own, gave it to her father-in-law upon an agreement that he would make a will by which her husband should have half of his father's property, and in case he should die before the wife, she should receive his share. The will as made did not conform exactly to this agreement, but otherwise disposed of some of the personal estate, and subjected the real estate to a life interest in favor of the widow of the testator. Held, not a compliance with the agreement, and that the money might be recovered back by the administrator of the daughter-in-law. COOLEY, J., dissenting.
Error to Berrien.
Chandler Richards, for plaintiff in error.
E.R Annable, for defendant in error.
Harriett De Moss having received $900, offered to give it to the plaintiff in error, who was her father-in-law, "on condition that he should make his will giving his property to his two children (one of them the husband of Harriett) equally in case her husband survived her, and in case she survived her husband then that plaintiff in error should will his property equally, to the remaining son and herself." This proposition seemed to have been satisfactory, the money was paid over and a will afterwards made and executed, which the testator offered to read to Harriett, but she expressing confidence in the testator it was not read. Harriett De Moss dying intestate Robinson was appointed administrator and brings this action to recover back the money. The will gave certain of testator's property to his wife and also bequeathed to her his real estate for and during the term of her natural life, and subject to this life estate the real estate was bequeathed in accordance with the oral agreement with Harriett De Moss.
The administrator recovered in the court below, and we find no error in the record. The payment was made without consideration. The oral agreement related, in part at least to real estate, and no valid agreement was made binding upon the plaintiff in error. The will he made was not in accordance with the oral agreement, and even if it had been there was nothing to prevent his revoking the same, or selling or encumbering the same during his life-time. Under such circumstances the administrator was entitled to recover and the judgment must be affirmed with costs.
This action is brought by John Robinson, administrator of the estate of Harriett I. De Moss, to recover from Jonah De Moss the sum of $900 which it is conceded the intestate in her life-time let the defendant have of her own moneys. The defence is this: That the intestate was the daughter-in-law of the defendant, and at the time of letting him have the money was living with her husband in his family; that the sum in question was all her means, and she and her husband had contemplated making use of it in the purchase of lands, but as it could not be of much avail in that direction without leaving them considerably in debt, she decided to offer it to the defendant to pay a mortgage on his homestead, if he would agree that in the event of her surviving her husband the share the husband would otherwise have taken in the defendant's estate should be willed by defendant to her.
The proposition was made and assented to. Unfortunately the terms are not made very clear by the evidence, and there is reason to believe they were not very definite in the minds of the parties. Defendant testified that Harriett said she wanted it so fixed that if she outlived her husband she would come in as one of two heirs--defendant having but one child besides her husband. The substance as stated by other witnesses is not very different, and on all hands it is agreed that the arrangement was to be completed by a will executed by defendant. The money was paid over and the will was made. This bore date April 24, 1876. By this the defendant gave to his wife his household goods, pictures and library for her life, and "the right to occupy" and have one-third the net proceeds of his homestead of 20 acres for her life-time; these gifts to be in lieu of dower. He then gave the remainder of his property to his two children, but provided that in case the husband of Harriett died in her life-time, Harriett should have the share that otherwise would go to him. This will was executed in due form, and defendant offered to show it to Harriett, but she expressed a confidence that it had been executed according to agreement, and did not look at it. The will remained unaltered uutil Harriett's death, and she and her husband continued to live with defendant.
The question is whether this is a sufficient consideration for the money defendant received. This, it seems to me, must depend upon whether the will complies with the understanding under which it was made. There is nothing in the nature of the act to be done that precludes a party from bargaining for a benefit to be received by will; and promises to reward...
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