Emery v. Darling

• Decision Date: 07 March 1893
• Citation: 50 Ohio St. 160,33 N.E. 715
• Parties: EMERY et al. v. DARLING.
• Court: Ohio Supreme Court

33 N.E. 715

50 Ohio St. 160

EMERY et al. v. DARLING.

Supreme Court of Ohio.

March 7, 1893

Error to circuit court, Morrow county.

Action by Mary E. Powell Darling against Homer P. Emery and others for partition of real estate. There was judgment for plaintiff, and defendants bring error. Affirmed.

The other facts fully appear in the following statement by MINSHELL, J.:

The suit below was an action brought in the court of common pleas by one of the heirs against the others of A. Cordelia Powell deceased, to compel partition of certain real estate of which she died seised. One of them, Mary E. Darling, a sister of the deceased, filed a cross petition, claiming that under a written contract between her and her sister, and which had been fully performed on her part, the property in equity belonged to her, and that, in specific performance of the contract, the other heirs should be required to convey to her the legal title that descended to them by the death of her sister. Issues of fact having been made upon the averments of the cross petition by a reply, the court found upon the trial in favor of Mary E. Darling, and rendered judgment accordingly, from which the others appealed to the circuit court, where, upon the trial, the court made a finding of the facts, and rendered judgment thereon in favor of Mary E Darling, decreeing a conveyance of the property to her. The finding is as follows: ‘ First. That A. Cordelia Powell died intestate on the 31st day of December, A. D. 1885 leaving the following named heirs and legal representatives viz.: The said plaintiff, Homer Emery, her nephew; and the said defendants, Mary E. Darling, her sister; Rebecca Tupper, her sister; William Powell, her nephew; Alice Powell and Eunice Emery, her nieces. Second. That said A. Cordelia Powell died seised of the legal title to the lands and tenements in said petition described. Third. That said A. Cordelia Powell executed and delivered to the said Mary E. Darling the paper writing offered in evidence, which reads as follows, to wit: ‘ I, A. Cordelia Powell, do covenant and agree that in and for the consideration of my sister Mary E. Powell Darling staying with me as long as I require, I do give and bequeath to said Mary E. Powell Darling all the real estate and personal property of which I may die seised or possessed. A. C. Powell. October 12, 1882.’ Fourth. That no possession was ever taken of said premises in said petition described by said Mary E. Darling (except that she stayed with said A. Cordelia Powell thereon in pursuance with the terms of said paper writing) under said paper writing, during the lifetime of said A. Cordelia Powell, and that said A. Cordelia Powell remained in the possession thereof until her death. Fifth. That said Mary E. Darling fully performed said agreement on her part, and stayed with said A. Cordelia Powell from the 12th day of October, A. D. 1882, in said premises, until the death of the said A. Cordelia Powell, and remained thereon and held possession thereof ever since, and is now living thereon.' The only question is whether, upon the facts, the court erred in decreeing a conveyance by the other heirs to Mary E. Darling.

Syllabus by the Court

One sister covenanted in writing with another that, if the latter would reside with her as long as she desired, she would ‘ give and bequeath’ to her all the property, real and personal, of which she should die seised. The sister to whom the promise was made accepted it, and fully performed the contract on her part; but her sister died without making a will, or in any way conveying the property to her. Held , that at the death of the sister making the promise the other became the equitable owner of the property of which her sisted died seised, and, in specific performance of the contract, is entitled to a conveyance of the legal title from the heirs of her deceased sister.

Thomas E. Duncan, for plaintiffs in error.

James Olds and Geo. Fluckey, for defendant in error.

MINSHALL, J., (after stating the facts.)

The ground on which objection is made to the relief granted the defendant in error is that the paper on which she founds her claim is in the nature of a testamentary disposition, and void for want of conformity to the statute of wills. It is true that the party who signed it merely covenants that if her sister should stay with her as long as she requires, she would ‘ give and bequeath’ to her all the real and personal property of which she should die seised; but it is of the essence of a will that its...