Dillon v. Gray

• Citation: 87 Kan. 129,123 P. 878
• Decision Date: 11 May 1912
• Docket Number: 17,622
• Parties: GRACE DILLON et al., Appellees, v. MATTHEW GRAY, as an Individual and as Executor, etc., et al., Appellants, and MARION DILLON, Appellee
• Court: Kansas Supreme Court

123 P. 878

87 Kan. 129

GRACE DILLON et al., Appellees, v. MATTHEW GRAY, as an Individual and as Executor, etc., et al., Appellants, and MARION DILLON, Appellee

No. 17,622

Supreme Court of Kansas

May 11, 1912

Decided January, 1912.

Appeal from Leavenworth district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--To Care for Parents--Consideration--Specific Performance. Upon sufficient evidence the court found that the owner of a farm, with the consent of his wife, made a written contract with their daughter and her husband, the plaintiffs, by which plaintiffs were to live with them on the farm and care for them as long as they lived, in consideration of which all their property was at their death to become the property of plaintiffs; that for more than ten years plaintiffs fairly performed their part of the contract and made lasting and valuable improvements on the land; that afterwards, following the death of his wife, the owner of the land sold the farm, deprived plaintiffs of possession refused longer to live with them, remarried, and executed a will leaving his property to other heirs. In an action for specific performance against his heirs and the executor of the will, held, that no circumstances or conditions being shown by the findings and the evidence which would render the enforcement of the contract inequitable, a decree will be upheld which fastens a trust in favor of the plaintiffs upon the fund in the hands of the executor.

2. MARRIAGE--Wife's Interest in Husband's Real Estate. Marriage will not constitute the wife a purchaser of an interest in lands owned or held by the husband. Upon his death the wife acquires no interest by will or under the statute in any property to which he held the legal title but which in equity belonged to others. Under the facts stated in the preceding paragraph, therefore, the plaintiffs were not required to show that the second wife, before her marriage, had notice of their claim under the contract.

3. EVIDENCE--Transaction with Deceased. Testimony as to the receipt of letters which, in the opinion of a witness, were in the handwriting of deceased, is not incompetent as relating to a transaction with a deceased person.

4. EVIDENCE--Same. Conceding that other statements of witnesses as to things done implied assent by the deceased to the doing thereof, the admission of the testimony is held not prejudicial error, the cause having been tried to the court and other witnesses having testified to substantially the same facts.

Frank Doster, and A. E. Dempsey, for the appellants.

C. P. Rutherford, F. B. Dawes, R. C. Miller, and Lucien Rutherford, for the appellees.

OPINION

PORTER, J.:

This is an action for the specific performance of a contract to convey certain real estate formerly owned by Andrew Gray and his wife, which they agreed should at their death become the property of the plaintiffs. The court decreed specific performance and the defendants appeal. The plaintiffs are the daughter and son-in-law of Andrew and Margaret Gray, and in 1896 were living in Birmingham, Ala. Andrew Gray and his wife were then each sixty-nine years of age and were living on their farm in Leavenworth county. Andrew, with his wife's assent, wrote two letters to the plaintiffs, in which he promised that if the plaintiffs would leave Alabama and come and live on the farm and take care of the old people while the latter lived, the farm and everything owned by them should, upon the death of himself and wife, become the property of the plaintiffs. Relying upon this promise, plaintiffs left Alabama, came to Kansas, took charge of the farm, managed and controlled it, made lasting and valuable improvements thereon, and for more than ten years took care of Andrew and Margaret Gray, until the death of Margaret, in 1907. Shortly after her death Andrew sold the farm and notified the plaintiffs to leave. They removed to a comfortable house in the city of Leavenworth, and offered him a home if he would come and live with them. He refused the offer, and a few months later married Maggie Caruthers, a maiden lady of seventy years. He was then seventy-eight years old. About the time of this marriage he made a will, by the terms of which he left to three of his sons all of his property except a bequest of $ 25 to Mrs. Dillon, plaintiff, and another bequest of $ 200 to her daughter Marion. Matthew Gray, one of the sons, was named as executor. At the time of Andrew Gray's death, which occurred December 8, 1908, his estate consisted solely of the proceeds of the sale of the farm, amounting at the time of the trial to the sum of $ 5872.01.

The action was brought against Matthew Gray as executor and trustee, the four sons and the second wife being joined as defendants. The prayer was for specific performance, and a decree declaring a resulting trust in plaintiffs' favor upon the funds in the hands of the executor. The court made findings of fact, including the following: that for a period of more than ten years the plaintiffs substantially and fairly performed all the obligations required of them by the contract; that they were willing to continue to care for and support Andrew Gray; that the only reason they did not continue to do so the few remaining months of his life was his fault in leaving their home; that the care and attention bestowed upon him and Margaret Gray during the time they lived with plaintiffs was reasonably worth the sum of $ 6500, and that plaintiffs had made lasting and valuable improvements on the farm of the value of $ 400.

The plaintiffs' evidence showed that the letters, which were the only written memoranda of the contract, were not in existence. Secondary evidence was offered as to their contents. This evidence was competent, and abundantly supports the finding made by the court as to the substance of the letters and that a contract of the terms stated was in fact entered into. The facts in this case are very like those in Anderson v. Anderson, 75 Kan. 117, 88 P. 743. There the only memorandum of the contract was a letter, which was lost, but the contents were proved by a person who had seen and read the letter several years before he testified. In fact, all the contentions presented by the present appeal, save two, which will be referred to later, are answered in the Anderson case, and therefore it is not deemed necessary to review the principles upon which equity in cases of this character will afford relief by declaring a trust upon the funds in the hands of the personal representative of a person who dies without performing his part of a contract to convey by will or otherwise his property to another:

"When a definite contract to leave property by will has been clearly and certainly established, and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable." (p. 123.)

In that case the plaintiff was found to be entitled to specific performance, and equity followed the proceeds of the property as a trust fund in the hands of the administrator. Equity in such cases does "what is equivalent to a specific performance of such an agreement, by compelling those upon whom the legal title has descended to convey or deliver the property in accordance with its terms, upon the ground that it is charged with a trust in the hands of the heir at law devisee, personal representative, or purchaser, with notice of the agreement, as the case may be." (Burdine v. Burdine, 98 Va. 515, 519, 36 S.E. 992, 81 Am. St. Rep. 741; Bolman et al. v. Overall, Ex'r, et al.,...