Findley v. Johnson

• Citation: 142 S.W.2d 61
• Decision Date: 04 May 1940
• Docket Number: No. 36058.,36058.
• Parties: FINDLEY et al. v. JOHNSON et al.
• Court: United States State Supreme Court of Missouri

142 S.W.2d 61

FINDLEY et al. v. JOHNSON et al.

No. 36058.

Supreme Court of Missouri, Division No. 2.

May 4, 1940.

Rehearing Denied July 3, 1940.

Appeal from Circuit Court, Linn County; Walter A. Higbee, Special Judge.

Action by Mabel Findley and others against Mason F. Johnson, administrator of the estate of Bessie M. Fore, deceased, and others, for specific performance of an oral contract between two deceased persons for reciprocal wills. From judgment for plaintiffs, the defendants appeal.

Affirmed.

Marvin Hopper, Owen & Thurlo, and Hart & Joyce, all of Brookfield, for appellants.

L. F. Cottey, of Lancaster, and Phineas Rosenberg, Daniel L. Brenner, and Joseph Koralchik, all of Kansas City (Rosenberg & Brenner, of Kansas City, of counsel), for respondents.

BOHLING, Commissioner.

This is an appeal by the sole surviving heirs of Bessie M. Fore, deceased, and the administrator of her estate, defendants below, from a judgment decreeing specific performance of an oral contract between Dr. Thomas P. and Bessie M. Fore, husband and wife, for reciprocal wills. The judgment directed the payment of $3,000 out of the estate of Bessie M. Fore, deceased, to Jane Findley and decreed that the other plaintiffs, the sole surviving brothers and sisters of Thomas P. Fore, deceased, were the beneficial owners as tenants in common of the real estate and remaining personal property of the estate of said Bessie M. Fore.

At the threshold of the case we encounter respondents' assertion that appellants' motion for new trial was insufficient to preserve for review appellants' points to the effect that under the pleadings and the evidence the decree and judgment should have been for appellants. We mention only one of the grounds of the motion for new trial, to wit: "That the judgment and decree in said cause is against the evidence, against the weight of the evidence, and against the law under the evidence." Respondents stress Marsters v. Bray, Mo.Sup., 85 S.W.2d 479, 481 [2]. That was an action at law. Ibid., [1]. This is a suit in equity and the scope of the review embraces inquiry into the merits de novo, if presented. Respondents also stress an observation made arguendo in Castorina v. Herrmann, 340 Mo. 1026, 1031 [5], 104 S.W.2d 297, 300 [8], that assignments in a motion for new trial to the effect that findings, orders and decrees were "contrary to the evidence" and "should have been for the relief prayed" are general statements serving no purpose in preserving anything for appellate review. The cases cited in support of the observation were law actions; and Clay v. Owen, 338 Mo. 1061, 1064 [1], 93 S.W.2d 914, 915 [1] (there cited), quoting State ex rel. Ward v. Trimble, 327 Mo. 773, 780, 39 S.W.2d 372, 375, brings out the underlying distinction, viz.: That in law actions appellate courts do not pass upon the weight of the evidence but only interfere with verdicts unsupported by substantial evidence. It is evident the author of Castorina v. Herrmann, supra, had in mind motions for new trial in actions at law; because a reading of that opinion as a whole and with an eye to the precise issue ruled, discloses the ultimate ruling, upholding the granting of a new trial to plaintiff, considered a determination by the trial court "that its `findings, orders and decrees are contrary to the evidence in the case' and that its `decree under the evidence and in equity should have been for the relief prayed for by the plaintiff,'" meant "its findings were against the weight of the evidence." 340 Mo. loc.cit. 1033 [8], 104 S.W.2d 301 [20]. See, for instance, Shaw v. Butler, Mo.Sup., 78 S.W.2d 420, 421 [1], and C. Bewes Inc. v. Buster, 341 Mo. 578, 581 [2], 108 S.W.2d 66, 67 [2], other equity cases by the author of Castorina v. Herrmann, supra. The point is ruled against respondents.

Respondents' bill alleged an agreement between Thomas P. Fore and Bessie M. Fore, his wife, to the effect that Thomas P. Fore agreed to will all his property to Bessie M. Fore and that Bessie M. Fore, if she survived her husband, agreed to bequeath $3,000 to Jane Findley and transmit the balance of her estate as of the date of her death equally to the brothers and sisters of her said husband.

Thomas P. Fore engaged in the general practice of medicine in Brookfield, Missouri, for approximately thirty years. About 1900, he married Nellie Rhoades. She died in 1910. He married Bessie M. Griffith in 1915. No children were born of either marriage. During his lifetime Dr. Fore acquired several pieces of real estate. He was one of the directors of the Linn County Bank at the time of its failure in 1924 or early 1925. Setting forth the legal description of the realty involved will serve no useful purpose. Certain lots or parts of lots in the city of Brookfield, designated for convenience, tracts A, B, C, D, and E, stood in his name; also an undivided interest in certain Chariton county land, designated tract F. Two and one-half city lots stood in the names of Bessie M. Fore and Thomas P. Fore, as husband and wife, designated tract G. Dr. Fore was either sued or threatened with suits arising out of the bank's failure. On May 29, 1925, he conveyed tracts A, B, C, D, and E to John H. Findley, who immediately quit-claimed said lots to Thomas P. Fore and Bessie M. Fore, as husband and wife. It appears that matters arising out of the bank's affairs in which Dr. Fore was interested were fully adjusted by 1928 or prior, and the alleged agreement was made about that time. Dr. Fore died December 25, 1930, and his will, dated May 29, 1928, vested all his estate in Bessie M. Fore, his wife, in fee, and named her executrix. It will be recalled that the Chariton county land alone stood in Dr. Fore's name. The inventory and appraisement filed in his estate by Mrs. Fore, as executrix, listed certain real estate as the property of Dr. Fore, designating the same by street. Aided by respondents' additional abstract, we find that said real estate consisted of the tracts hereinbefore designated A, B, C, D, E, and G, estates held by Dr. and Mrs. Fore as tenants by the entirety. Dr. Fore's interest in the Chariton county land was not inventoried. The total appraised value of said real estate was $8,800. Dr. Fore's personalty was appraised at $1,742.80. Mrs. Fore died in February, 1937, intestate. The inventory and appraisement of her estate listed the aforesaid real estate, including the Chariton county land, and the total appraised value thereof was $12,405, of which $165 was allocated to the Chariton county land. Mrs. Fore's personal property was appraised at $5,313.21.

Respondents adduced testimony as follows:

James Roan testified he had been a railroad conductor for thirty-six years; knew Dr. Fore for thirty years and went hunting and other places with him. On direct examination he testified that Dr. Fore's brother James, Dr. Fore and he were in Dr. Fore's office the latter part of January or the first part of February, 1928; that they had been talking about the Linn County Bank; that Mrs. Fore came in; that Dr. Fore said: "`Bessie, I am glad you came in. I was just telling the boys about my troubles being over in the bank'; and Doctor said: `You know my troubles are over in the bank now, and it is safe for me to take my property back'; and Mrs. Fore said: `Yes, Doctor, the property is yours and you can have it back any time you want it'; and Doctor said: `No, I will leave it as it is provided you will agree—'; and then I spoke up and said: `If you folks are going to talk business, I will leave, as I have an engagement down the street'; and Doctor said: `No, I want you to stay and hear this, Stormy, it will only take a few minutes'; and Doctor went ahead talking and said: `Now, if you will agree to make a will, I will leave the property as it is and all other property—.'" [Here witness was interrupted, and testified Dr. Fore was talking to Mrs. Fore. Witness continued:] "`Now, Bessie, if you will make a will, I will leave a will of all my other properties, if you will agree if I did before you die you will make a will leaving all I have to my brothers and sisters, except $3,000 to Jane Findley.' Mrs. Fore replied: `Doctor, if that's your wish you can have it.'" On cross-examination the witness testified that he could not remember everything that was said but that he remembered the meaning of it; that when Mrs. Fore came in the Doctor was just telling that he had closed the matter with the bank; and witness then repeated the substance of the above narrative, but twice in response to more direct questions than were propounded upon direct examination testified Mrs. Fore was to "leave everything she had"; "all my [Dr. Fore's] property, all your property, all you have to my brothers and sisters, except $3,000 to Jane Findley.'"

The deposition of R. X. De Graw, a resident of Florida, was offered. Mr. De Graw had lived in Brookfield for fifty-eight years prior to 1927, and returned several times annually to look after his property. He and Dr. Fore were intimate friends. He testified to a conversation had in Dr. Fore's office, possibly in 1927, at which Bessie M. Fore, Dr. Fore and he were present: "He said to me: `Dick, you know,' he said, `I feel I am not going to live very long.' That is the way the conversation started. And he said: `I have given everything to Bess during her lifetime and then it is to go to my people'; and then he turned to his wife, who was sitting behind the desk, and he said: `Bess, you know that I told you that I wanted to leave Jane a special bequest of $3,000.' Her name is Jane Findley, but he said Jane. He said: `Bequest of $3,000.' And, she said: `Yes, I understand that, that's all right.' That is all the part she took in the conversation." He also testified to a conversation had with Mrs. Fore about a year and a half after Dr. Fore's death: "She said to me: `Have you got a will?' I said: `Oh, yes.' Well, she said: `You know, I never have made a...