Hall v. Getman

• Decision Date: 05 November 1906
• Citation: 121 Mo. App. 630,97 S.W. 607
• Parties: HALL v. GETMAN.
• Court: Missouri Court of Appeals

97 S.W. 607

121 Mo. App. 630

HALL v. GETMAN.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

Rehearing Denied November 19, 1906.

FRAUDS, STATUTE OF — OPERATION — PART PERFORMANCE — CONTRACT TO DEVISE AND BEQUEATH — SPECIFIC PERFORMANCE — QUANTUM MERUIT.

Plaintiff entered the home of decedent, her grandaunt, under an express oral agreement that decedent would, by will or otherwise, leave all her property to her. Plaintiff performed her part of the contract by doing all the housework, waiting upon decedent, and performing other valuable services, but decedent died without willing or conveying the property. Held, that plaintiff could not maintain an action at law against decedent's administrator for the value of the property, as damages for the breach of the contract, but that, despite the statute of frauds and Rev. St. 1899, § 4604, requiring all wills to be in writing, she could, having performed the contract, maintain an action against the heirs for specific performance, or recover at law, from the administrator, for her services, a reasonable amount, not exceeding the value of the property.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Allie Hall, by Charles Wilson, her guardian, against H. H. Getman, administrator of Fanny J. McConnell. From a judgment for defendant, plaintiff appeals. Affirmed.

J. Allen Prewitt, for appellant. A. M. Ott and Paxton & Rose, for respondent.

JOHNSON, J.

This action was brought in the probate court of Jackson county against the administrator of Fannie J. McConnell, deceased, to recover damages in the sum of $3,000 for an alleged breach by decedent of an oral contract, under the terms of which the decedent, in consideration of services to be rendered by plaintiff, and which were afterwards fully performed, agreed that plaintiff should receive her whole estate at her death. On appeal to the circuit court the case was tried before a jury and plaintiff recovered judgment in the amount prayed, but subsequently the court sustained the motion for a new trial and in arrest of judgment filed by defendant on the ground "that the court erred in giving plaintiff's instructions, and, upon the whole record and the law and the evidence in the case, plaintiff is not entitled to recover in this form of action," and plaintiff appealed.

The facts in evidence are undisputed. William McConnell and his wife, Fannie J., owned, as tenants by the entirety, a farm of 40 acres near Independence, which they occupied as their home. The place was valued at about $2,000. They had a little money in bank and some other personal property, all of the value of $2,000. They lived alone on the farm, were childless, and both were very old, feeble, and infirm. Plaintiff, their grandniece, was 13 years of age, large, strong, and able to do the work of a household at the time the relation began which gives rise to this controversy. Her mother, a niece of the McConnells, had died some years before and she was living with her aunt, but was supported by her father. Plaintiff was born under the McConnell roof and her mother had been the favorite niece of the old couple. In March, 1902, the McConnells sent for plaintiff's father. On his arrival this, as told by a disinterested witness, is what occurred. "Mrs. McConnell had been very sick — indeed, they both had been sick and Mrs. McConnell was in bed — she had been very sick, and I had been over a number of nights and sat up with her, and this night I had been up all night, and in the early morning, I think before breakfast, she told me to tell Mr. Wilson [plaintiff's father] to come into her room, and I called him in. Mr. McConnell was present, he was sitting by the side of the bed. She said: `Charley [that is Mr. Wilson], I want you to let Allie come and stay with me as long as we live, and if you will she may have my home and all I have.' And Mr. McConnell was sitting by the side of the bed and he said, `Yes; she can.' Well, Mrs. McConnell says, `Well, Charley, I want you to go and get a lawyer and have him come out and make a will, and do it this morning,' and Mr. McConnell says, `No; you get Ike Rogers, he will not charge anything,' and Mrs. McConnell says, `Get Mr. Rogers and have him come out,' and Mr. Wilson says, `Oh, Aunt Fanny, you will get better in a time, and then you can fix this,' and Mr. McConnell says, `As soon as the weather moderates a little I will go to town and have it all fixed; it is too cold now; I am not able now, but I will be better in a few days.'" "Q. What did Mr. Wilson say? A. Mr. Wilson, when Aunt Fanny wanted Allie to come there said, `Yes, Aunt Fanny, I will bring Allie.'" This testimony was corroborated by that of a number of other disinterested witnesses, one of whom acted as the messenger to summon Mr. Wilson and had been instructed by the McConnells to tell him that if "Allie" would come and live with them, she should have all their property. Others testified to statements made to them by the McConnells to the effect that the girl was to have all of their property, and, without detailing the evidence, it is enough to say that the fact is undisputed and apparently indisputable that plaintiff entered the home of these old people on the express agreement that, by will or otherwise, they would leave all of their property to her. All of the witnesses agree that this mere child fully performed the arduous duties of her position with cheerful bravery. A few months after her advent, the old man's senility dethroned his reason, but he lingered on a helpless invalid until February, 1903, when he died. The old lady was nearly blind, very feeble, and survived her husband but a month. Plaintiff did all of the housework and cooking, nursed, and waited on her charges, and at times performed the work of a farm hand in caring for the live stock on the place. Not only did she render the service that money can buy, but she brightened the last days of this lonely couple with the affectionate companionship of one of their own blood, a service money can neither buy not measure. On her husband's death, Mrs. McConnell became the sole owner of the farm, and of one-half the personal property, all of the estimated value of $3,000, and this property she owned at the time of her death. The promised will was not executed, nor was any provision made to recompense plaintiff. Before the bringing of this suit plaintiff intermarried, but, being a minor, the action is prosecuted by her father, her guardian.

The inventory and appraisement of the defendant's estate shows assets as follows: Money, $1,220.90. Other personalty, $93.58. Real estate, valued at $2,000. Total, $3,314.48. The claims allowed against the estate are as follows: Class 1, $98. Class 2, $5. Class 5, $80. The evidence tends to show that the estate owes no other debts except the claim of plaintiff, which, if allowed, will belong to the fifth class. At the time of trial the time for proving claims belonging to the sixth class had not expired. The expenses of the administration are not disclosed.

The theory on which the case was submitted to the jury appears in this instruction, given on behalf of plaintiff: "The court instructs the jury that, if they find...