Fox v. Fox
| Decision Date | 16 March 1926 |
| Docket Number | 15735. |
| Citation | 245 P. 641,117 Okla. 46,1926 OK 245 |
| Parties | FOX et al. v. FOX. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A motion to make more definite and certain is addressed to the sound discretion of the court, and a ruling thereon, in the absence of an abuse of such discretion that results prejudicially to the party complaining, will not be disturbed.
No general rule can be formulated defining what acts of acceptance or acquiescence will constitute an "election" between a devise in a will and a right inconsistent with the will, but there must be an intention to make an "election," or some decisive act, that will prevent restoring the parties affected to the same situation as if such acts had not been performed.
A suit in equity may be maintained to enforce specific performance of an oral contract for the conveyance of land, where the moving party has fully performed the terms of such contract on his part.
The court may, before or after judgment in furtherance of justice, allow the petition to be amended to conform to the facts proved, and the judgment of the trial court will not be reversed because of defects or omissions in the petition.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, Canadian County; James I. Phelps, Judge.
Suit by Roscoe C. Fox against Isabel Fox, as executrix of the last will of J. N. Fox, deceased, and others, praying to be declared the legal owner of lands in Canadian county, under and by virtue of an oral agreement with J. N. Fox, deceased. Judgment for the plaintiff, and defendants appeal. Affirmed.
A. G Morrison, of El Reno, for plaintiffs in error.
H. L Fogg and J. C. Snyder, both of El Reno, for defendant in error.
While there are numerous parties named as defendants, now plaintiffs in error, there appears to be no issue, except between plaintiff, Roscoe C. Fox, and defendant Charles S Fox.
Plaintiff alleges his father, J. N. Fox, hereafter called the deceased purchased the southwest quarter of section 33, township 12 north, range 6 west, of the Indian meridian, in Canadian county, about 1897, and entered into an agreement with the plaintiff by the terms of which deceased agreed to devise to the plaintiff the south half of the southwest quarter of said section 33, provided plaintiff would remain with deceased and operate and manage deceased's farms until the debt incurred by the purchase of this additional farm was paid; that plaintiff operated the farms for a long period of time after the debt was paid, received no wages, and performed all the services required of him, and expected nothing, save and except the lands promised him by the deceased; that about 1917 plaintiff, at the solicitation of deceased, made permanent improvements on the land promised to him, such improvements being of the reasonable value of $2,000; that prior to his death J. N. Fox made a will devising the southwest quarter of the southwest quarter of section 33 to plaintiff and devised the southeast quarter of the southwest quarter of section 33 to the defendant Charles S. Fox, and plaintiff prays that he be decreed to be the owner of the southeast quarter of the southwest quarter of section 33, so devised to Charles S. Fox, and the southwest quarter of the southwest quarter of section 33.
Defendants filed a motion to make the petition more definite and certain by stating whether the agreement entered into between plaintiff and deceased was in writing, and, if in writing, that a copy of the written agreement be set forth in the petition. The motion was overruled, and the defendants excepted, and assign the ruling of the court as error.
"A motion to make more definite and certain is addressed to the sound discretion of the court, and a ruling thereon, in the absence of an abuse of such discretion that results prejudicially to the party complaining, will not be disturbed." City of Lawton v. Hills, 156 P. 297, 53 Okl. 243; Ft. Smith & W. Ry. Co. v. Ketis, 110 P. 661, 26 Okl. 696; Frey v. Failes, 132 P. 342, 37 Okl. 297; City of Chickasha v. Looney, 128 P. 136, 36 Okl. 155; Terre Haute, Ind. & E. Traction Co. v. McDermott (Ind. App.) 144 N.E. 620.
See Ph nix Ins. Co. v. Rowe, 20 N.E. 122, 117 Ind. 202, wherein the court said:
"While the granting or refusing of such motions is not matter wholly within the discretion of the nisi prius courts, it is, nevertheless, so far discretionary that a reversal would not follow, except in a case where it appeared that the rights of the party complaining may have suffered."
An examination of the petition and the whole record discloses that the rights of the defendants could have in no manner been prejudicially affected by the ruling of the court. The allegations of the petition specifically allege a complete performance of the contract on the part of the plaintiff, and a performance of such a nature as to render it impossible to place the plaintiff in his original position, and this court has repeatedly held that, where a party to a contract has fully performed his part of the contract, and by reason of the particular nature of that performance it is impossible to place him in his original position, the contract is taken out of the statute of frauds. It therefore becomes immaterial whether the contract alleged in the plaintiff's petition was oral or in writing; and the ruling of the court does not constitute reversible error.
Defendants filed their demurrer to plaintiff's petition, which was overruled by the court, and exceptions allowed, and defendants assign the ruling of the court as error and urge that the demurrer should have been sustained for the following reasons: First, that plaintiff accepted 40 acres of land under his father's will, and then instituted this action for specific performance to possess himself of another 40, and that he cannot take under the will and do any act which would defeat its terms; second, that the contract upon which plaintiff predicated his action must, under the statute of frauds, be in writing.
There is nothing in the petition to indicate that plaintiff had taken under the will or had signified any intention to take under the will; in fact, the very filing of his petition for the purpose of acquiring title to the 40 acres devised to Charles S. Fox negatives the idea that it was his intention to take under the will.
While his petition prayed that he be declared the owner of the 40 so devised to Charles S. Fox, the prayer was subsequently amended to include the south half of the southwest quarter of section 33, being the 80 acres agreed to be devised to plaintiff, and upon which he had erected lasting and permanent improvements. The petition simply recited the fact that by the will certain lands were devised to the plaintiff and certain lands, to which the plaintiff was entitled, were devised to Charles S. Fox, and it developed at the trial that, after the executrix qualified and the will was admitted to probate, nothing further was done in Re Estate of J. N. Fox. The estate was not settled; no distribution was had or attempted under the will; no petition for distribution had been filed; and no person had taken or could have taken under the will at the time of the filing of plaintiff's petition.
Cobb v. MacFarland, 127 N.W. 377, 87 Neb. 408; Cooley v. Houston, 78 A. 1129, 229 Pa. 495.
And so it has been held that the allowance of a will propounded for probate, with the consent of the surviving spouse, appearing as the sole contestant, is distinct from the right to waive the provisions of the will for his or her benefit, and mere consent to probate is not an election to take under the will, instead of as statutory heir. McGrath v. Quinn, 105 N.E. 555, 218 Mass. 27.
The Supreme Court of Ohio, in Bebout v. Quick, 90 N.E. 162, 81 Ohio St. 196, has held that a devisee under a will, who in his pleadings claims both under and against the will, does not thereby either make an election or waive his right to make it. The court, in the body of the opinion, said:
In Cobb v. MacFarland, supra, the court said, after citing Medill v. Snyder, 58 P. 962, 61 Kan. 15, 78 Am. St. Rep. 307; Bierer's Appeal, 92 Pa. 265; and Goodrum v. Goodrum, 20 S.W. 353, 56 Ark. 532:
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