Feiden v. Gibson

• Decision Date: 14 March 1949
• Docket Number: 40928
• Citation: 218 S.W.2d 105
• Parties: Rose Ellen Feiden, Appellant, v. Blanche K. Gibson, Dorcas R. Imm, Mrs. Francis Madison, James W. Kersey, Laura Penney, O. L. Linck, Jr., Jacquette Wilson, Kersey Clark, Bruce J. Clark, Katherine Kowitz, Walter Clark, George Clinton Clark, Richard Clark, Margaret Jane Peters, Norman L. Pickering, and Blanche K. Gibson, Administratrix of the Estate of Thomas J. Kersey, Deceased, Respondents
• Court: Missouri Supreme Court

218 S.W.2d 105

Rose Ellen Feiden, Appellant, v. Blanche K. Gibson, Dorcas R. Imm, Mrs. Francis Madison, James W. Kersey, Laura Penney, O. L. Linck, Jr., Jacquette Wilson, Kersey Clark, Bruce J. Clark, Katherine Kowitz, Walter Clark, George Clinton Clark, Richard Clark, Margaret Jane Peters, Norman L. Pickering, and Blanche K. Gibson, Administratrix of the Estate of Thomas J. Kersey, Deceased, Respondents

No. 40928

Supreme Court of Missouri, Second Division

March 14, 1949

From the Circuit Court of Buchanan County, Civil Appeal, Judge Emmett J. Crouse

Affirmed

OPINION

Bohling C.

Rose E. Feiden instituted this suit February 24, 1947, in the circuit court of Buchanan county, Missouri, against Blanche K. Gibson and other collateral heirs of Thomas J. Kersey deceased, and the administratrix of Mr. Kersey's estate for the specific performance of an alleged oral contract to make a will giving the whole of his estate to plaintiff, plaintiff alleging performance by rendering services to Mr. Kersey during his lifetime as agreed. The estate of Thomas J. Kersey, deceased, is valued at $10,376.83, and includes certain real estate in Buchanan county. Plaintiff appeals from a judgment dismissing her bill, contending she established her right to the relief prayed.

Thomas J. Kersey died intestate on March 9, 1946, at the age of fifty-four. He left no widow or descendants. His next of kin were first and second cousins. Mr. Kersey married plaintiff's mother, Mrs. Ora Mae Pickering, when plaintiff was about three-and-a-half years of age. Plaintiff lived with them as one of the family for about fifteen years, until February 6, 1937, when she married John N. Feiden. Plaintiff was never adopted by Mr. Kersey. After plaintiff's marriage she visited her former home several, three or four, times a week up to the death of her mother on January 29, 1942.

Plaintiff alleged that Kersey on said January 29, 1942, and at divers times thereafter, entered into the alleged oral contract. Summarized, the evidence established that Kersey treated plaintiff with kindness and affection, as though she were one of the family or his child; that plaintiff in turn treated him with affection and consideration; and that Kersey made statements he intended to make a will leaving his property to her. Kersey was described as intelligent and knowing how to direct his business affairs. He left some life insurance to plaintiff.

Defendants offered no witness.

Mrs. Fred E. Roach testified she had known Kersey for twenty years, the families being good neighbors. Kersey had greater affection for plaintiff than for her brother Norman Pickering, and had said, probably two or three times, "that he intended to make a will and leave his property to Rosie." On cross-examination witness testified she never heard him say he "had made a contract" to give plaintiff all of his property.

Mrs. Amanda Jones, plaintiff's grandmother, testified that Kersey said "if he didn't remarry that [his] property and everything would go to Rose Ellen" - plaintiff; because he had raised her; she was like his own; and she was kind to him and would help him.

Mrs. C. O. Mayfield (who had known Kersey for fifteen years and was his closest neighbor to the east, practically across the street) and Mr. Fred Leucht (who had known Kersey since 1914 and was his nearest neighbor to the west) testified individually to the friendship existing between plaintiff and Kersey and on cross-examination to never having heard him say he had made a contract with plaintiff under which he was to leave all his property to her.

Others gave like testimony. We need not repeat it.

Equity, to safeguard against fraud and perjury, imposes several requirements respecting the probative value of the proof necessary to take an oral contract out of the statutes requiring contracts involving the title to real estate or wills to be in writing, and among these are: "There must be an absence of doubt or equivocation throughout the whole case in pleadings and proof. From end to end it must be made out beyond a reasonable doubt and the state of the proof must bring the case within the reason of the exception to the statute, viz., that not to perform in kind, or in sort, would itself be a fraud. * * * A mere testamentary disposition to devise by will * * by way of gift or as a reward for services not plainly provoked by and bottomed on the contract in suit, will not take the case out of the statute." Forrister v. Sullivan, 231 Mo. 345, 374, 132 S.W. 722, 730; Walker v. Bohannan, 243 Mo. 119, 136, 147 S.W. 1024, 1028; Sulgrove v. Sulgrove (Mo.), 215 S.W.2d 490, 491, n. 5. Plaintiff's cases are in accord. Bick v. Mueller, 346 Mo. 746, 142 S.W.2d 1021, 1024; Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447, 452; Adams v. Moberg, 356 Mo. 1175, 205 S.W.2d 553, 558. Plaintiff's difficulty is that she has failed to establish the contract sued on. Evidence, as here, which establishes only a testamentary disposition on the part of one to will his property to another is insufficient to establish a contractual obligation to do so.

Plaintiff says that defendants' affirmative defenses control over defendants' general and special denials and admit the existence of the oral contract, and since defendants offered no evidence to sustain the affirmative defenses plaintiff was entitled to a decree of specific performance. Even so plaintiff would still have to prove performance. In plaintiff's cases the answer contained...