Finn v. Barnes

• Decision Date: 05 February 1937
• Docket Number: 34327
• Citation: 101 S.W.2d 718,340 Mo. 445
• Parties: Mary M. Finn v. Paul Barnes, Executor of the Estate of James M. Bucher, and Paul Barnes, Clara Barnes, Bert Leedum, Beatrice Stamm, Appellants, Moberly Savings & Loan Association, Mechanics Bank & Trust Company, Moberly Trust Company and Bank of Moberly, Defendants
• Court: Missouri Supreme Court

101 S.W.2d 718

340 Mo. 445

Mary M. Finn v. Paul Barnes, Executor of the Estate of James M. Bucher, and Paul Barnes, Clara Barnes, Bert Leedum, Beatrice Stamm, Appellants, Moberly Savings & Loan Association, Mechanics Bank & Trust Company, Moberly Trust Company and Bank of Moberly, Defendants

No. 34327

Supreme Court of Missouri

February 5, 1937

Appeal from Monroe Circuit Court; Hon. Edmund L. Alford Judge.

Affirmed.

W W. Barnes and Lawrence Holman for appellants.

(1) The trial court erred in finding for plaintiff for the reason that plaintiff wholly failed to prove the alleged parole contract in accordance with the requirements of the law which are as follows: (a) The alleged oral contract must be clear explicit and definite. (b) It must be proven as pleaded. (c) Such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other. (d) The alleged oral contract must itself be fair and not unconscionable. (e) The proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged, was in fact made and that the full performance, so far as lies in the hands of the parties to perform, has been had. (f) The work constituting performance must be such as is referable solely to the contract sought to be enforced, and not such as might be reasonably referable to some other and different contract. (g) The contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand but not upon the other would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity. (h) Proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services is not sufficient, but there must be shown a real contract to devise by will or convey by deed, made before the acts of performance relied upon were had. Walker v. Bohannon, 243 Mo. 119; Hersman v. Hersman, 253 Mo. 175; Bert v. McKibbin, 188 S.W. 187; Wanger v. Marr, 257 Mo. 482; Kinney v. Murray, 170 Mo. 674; Rosenwald v. Middlebrook, 188 Mo. 58; Oliver v. Johnson, 238 Mo. 359; Russell v. Sharp, 192 Mo. 270; Collins v. Herrel, 219 Mo. 279; Woods v. Woods, 13 S.W.2d 569; Waller v. George, 16 S.W.2d 63; McFall v. Hampe, 267 S.W. 54. (2) The deed from respondent to Bucher conveying the Moberly property to him cannot be considered as a part of any consideration for the alleged contract, as it recites a consideration of $ 1200, and there is no testimony to show that this amount was not paid by Bucher and the recital of said consideration in the deed is prima facie evidence that same was in some way paid and cogent and satisfactory evidence is required to overcome this showing. Eystera v. Cappelle, 61 Mo. 578; Courtney v. Finnell, 106 Mo. 445; Crider v. Meatte, 7 S.W.2d 691; Burkholder v. Henderson, 78 Mo.App. 287. (3) Party to contract cannot claim its benefits when he is first to violate it. Major v. Hast, 263 S.W. 466; Kreitz v. Egelholf, 231 Mo. 694; Murphy v. St. Louis, 8 Mo.App. 485; Doyle v. Turpin, 57 Mo.App. 84; Motorport v. Freeman, 62 S.W.2d 479.

Redick O'Bryan and Arthur B. Chamier for respondent.

(1) While the appellate court in an equity case may review the facts and evidence, yet in determining the weight to be given to oral and conflicting evidence, it will defer largely to the trial court's findings. Vining v. Ramage, 319 Mo. 86, 3 S.W.2d 712; Boggess v. Boggess, 127 Mo. 322; Jones v. Thomas, 219 Mo. 540; Fifer v. McCarty, 243 Mo. 42; Nevins v. Moore, 211 Mo. 330; Hoehn v. Hoehn, 297 S.W. 959; Kelly v. Industrial Operating Co., 329 Mo. 637; Ande v. Ande, 28 S.W.2d 668; Keener v. Williams, 307 Mo. 704; Creamer v. Bivert, 214 Mo. 479. (2) The record shows that plaintiff and deceased, James M. Bucher, entered into an oral agreement, by the terms of which the one dying first was to leave to the survivor all of his or her property, and accordingly on October 5, 1916, each made such a will. In consideration of the will so made by deceased and his promise to leave her all of his property, plaintiff made such a will and made a deed to him of certain real estate, and promised to perform certain services. Plaintiff performed all her part of said contract, and her said will remained unrevoked, but deceased a short time before his death revoked his said will and executed a new one under which defendants, who are not related to him, now claim. Plaintiff is therefore entitled to specific performance of such contract. (a) Because a person may make a valid contract to leave his property at his death in a particular way and such contract is enforceable. Wright v. Tinsley, 30 Mo. 389; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Clark v. Cordry, 69 Mo.App. 6; Sharkey v. McDermott, 91 Mo. 647; McFall v. Hampe, 267 S.W. 54; Hiatt v. Williams, 72 Mo. 214; Hall v. Harris, 145 Mo. 614, 47 S.W. 506; 68 C. J. 565; 28 R. C. L. 64; Schrage v. Hutt, 252 S.W. 658. (b) Because such contract is not within the Statute of Frauds, for the reason it has been fully performed by plaintiff, and a denial of specific performance would work a fraud on her, the party who has fully performed. Selle v. Selle, 88 S.W. 881; Berg v. Moreau, 199 Mo. 416, 9 L. R. A. (N. S.) 157; Alexander v. Alexander, 150 Mo. 579, 52 S.W. 256; Cave v. Wells, 319 Mo. 930; 25 R. C. L. 307; Asbury v. Hicklin, 181 Mo. 675, 81 S.W. 390; Collier v. Porter, 322 Mo. 713, 16 S.W.2d 49; Hiatt v. Williams, 72 Mo. 214; Schrage v. Hutt, 252 S.W. 661; Sutton v. Hayden, 62 Mo. 112; McCune v. Graves, 273 Mo. 584; McElvain v. McElvain, 171 Mo. 244, 71 S.W. 142; Kerr v. Smiley, 239 S.W. 501; Nowack v. Berger, 133 Mo. 24; Carney v. Carney, 95 Mo. 353; Hall v. Harris, 145 Mo. 614; Forrister v. Sullivan, 231 Mo. 345. (c) Because plaintiff faithfully performed her part of the contract, and the deceased, by revoking the will of October 5, 1916, and disposing of his property contrary to said agreement, breached said agreement. Equity will regard that as done which should have been done, and enforce the contract as made, by fastening a trust upon the property of the decedent in the hands of the defendants who are mere volunteers. Wright v. Tinsley, 30 Mo. 397; McCune v. Graves, 273 Mo. 534, 201 S.W. 894; Schrage v. Hutt, 252 S.W. 661; Wright v. Wright, 285 S.W. 188; Brown v. Webster, 90 Neb. 591, 134 N.W. 185, 37 L. R. A. (N. S.) 1196; Stewart v. Todd, 190 Iowa 283, 173 N.W. 619, 20 A. L. R. 1272. (3) The will executed by the deceased on October 5, 1916, is strong corroborative proof of the contract sued on in this case. Hiatt v. Williams, 72 Mo. 214; Worden v. Worden, 96 Wash. 562, 165 P. 501. (4) The weight and convincing character of testimony does not depend so much on the number of witnesses as upon the intelligence, honesty and veracity of those who testified. Merrill v. Thompson, 252 Mo. 714.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause is for the specific performance of an alleged contract for reciprocal wills between plaintiff and James Bucher, deceased. Under the pleadings, title to real property is involved and by the decree rendered, such title was determined. Appellant, Paul Barnes, is executor under the probated will of James M. Bucher, deceased, and the executor and his wife, Clara Barnes, are the residuary devisees and legatees under said will. Appellants Bert Leedum and Beatrice Stamm are legatees under the probated will. Defendants, Moberly Savings & Loan Association, Mechanics Bank & Trust Company, Moberly Trust Company and Bank of Moberly are institutions in Moberly, Missouri, and Bucher, at the time of his death, owned stock in the first three, and a savings account in the Bank of Moberly.

The trial court found for plaintiff and the beneficiaries under the probated will appealed. We shall refer to respondent as plaintiff and to those appealing as defendants.

Plaintiff alleged that Bucher died testate on or about September 19 1931; that defendant Paul Barnes was appointed executor; that the will was probated, and further alleged the respective interest of all those named in the petition as defendants. Also, it is alleged that on or about October 5, 1916, plaintiff and Bucher entered into an agreement by the terms of which she was to convey to him by deed a certain house and lot in Moberly, and to take care of his room, his mending, washing, ironing and sewing; that she was to execute her will devising and bequeathing to Bucher all of her property, real and personal, and that in consideration thereof and the services rendered, he agreed to execute his will devising and bequeathing to her all his property, real and personal; that pursuant to said agreement and on October 5, 1916, plaintiff executed her will in compliance with the agreement and at the same time, executed and delivered the deed, and thereafter, she took care of Bucher, did his washing, ironing, mending and sewing, and did all things she agreed to do; that she continued so to do until a short time prior to his death, and stood ready and willing so to do at all times; that at said time (October 5, 1916) she and Bucher each owned property and continued to own property up to the time of his death; that she "was induced to enter into said contract and to do and perform the things aforesaid by reason of the promise and agreement on the part of said deceased to devise and bequeath to her at his death all of his property, real, personal and mixed, and his execution of his last will and testament on the said 5th day of October, 1916, devising and bequeathing to her all of his property, real, personal and mixed;" that the will executed by Bucher on October 5, 1916, was pursuant to the said agreement; that she performed all the terms and...