Healey v. Simpson
| Decision Date | 31 December 1892 |
| Parties | Healey et al., Appellants, v. Simpson, Administrator |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court.--Hon. Jacob Klein, Judge.
Reversed and remanded.
A. A Paxson and J. S. Laurie for appellants.
The agreement in question is a contract whereby Brewster, for a valuable consideration (the services and companionship of Eva), obligated himself that Eva should have a child's share in his estate, that is to say, an interest equal to that which a child born in wedlock would inherit from a parent dying intestate; said agreement was valid and binding and the legal effect thereof was such that Eva's children upon the death of their mother, after performance of her part of the agreement, became entitled to Brewster's estate when he died. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 40; Sutton v Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Davis v. Hendricks, 99 Mo. 478; Van Duyne v. Vreeland, 11 N.J.Eq. 370; Godine v. Kidd, 19 N.Y.S. 335; Roberts v. Hall, 18 Canada L. J. 177; Hill v. Gomme, 1 Beav. 540; Rhodes v. Rhodes, 3 Sandf. Ch. 279; Jaffee v. Jacobson, 48 F. 21; Reinders v. Koppelmann, 68 Mo. 482; In re Clements, 78 Mo. 352; Power v. Hafley, 85 Ky. 671.
E. S. Robert, W. F. Smith and R. M. Nichols for respondent.
(1) Mrs. Martha McWilliams, divorced wife of Joseph Brewster, was not a competent witness to prove the purported signatures to the paper writing of her then husband, and the deed was not admissible under Revised Statutes, 1889, sections, 2427, 4859, and 4860, as conveyances affecting real estate. Revised Statutes, 1889, sec. 8922; 1 Greenleaf on Evidence, sec. 337; Lane v. Lane, 95 N.Y. 501; Spradling v. Conley, 51 Mo. 51; Moore v. Wingate, 53 Mo. 409; Holman v. Bachus, 73 Mo. 51. (2) The paper writing cannot take effect as a deed of adoption. Revised Statutes, 1889, secs. 968, 970; Sharkey v. McDermott, 16 Mo.App. 89; Tyler v. Reynolds, 53 Iowa 146; Shearer v. Weaver, 56 Iowa 578; Reinders v. Koppelmann, 68 Mo. 499. (3) Both at law and in equity the whole personal estate of appellants' deceased ancestor vested in her executor or administrator, and her heirs cannot maintain an action for the same without the intervention of an administrator, even though they be the sole heirs or distributees to the estate. Hounsol v. Moore, 18 Mo.App. 407; Hastings v. Myers, 21 Mo. 519. (4) The elements of uncertainty as to the amount of the property to which an heir under such contract as claimed would be entitled, and the unjust, unfair and inequitable provisions and circumstances of such a contract, as against the widow and the collateral heirs of deceased, would preclude a court of equity from enforcing the same. Pomeroy's Equity Jurisprudence, sec. 1405; Woods v. Evans, 113 Ill. 187; Wallace v. Rappeleye, 103 Ill. 240; Grayham v. Grayham, 34 Pa. St. 474; Pollock v. Ray, 85 Pa. St. 428. (5) If Brewster agreed that plaintiff's mother should inherit his property, in consideration of which she rendered him valuable services, is not a breach of this contract redressable in an action at law? It was a mere personal contract, and only personal property was involved. A court of equity would have no jurisdiction under the circumstances. Pomeroy's Equity Jurisprudence, sec. 1405; Wallace v. Long, 105 Ind. 522; Revised Statutes, 1889, sec. 2131; Schwab v. Pierre, 43 Minn. 520; Grayham v. Grayham, 34 Pa. St. 475.
This is a suit in equity by the children of Evangeline Healy, nee Pharis, now deceased, for the specific performance of an agreement alleged to have been executed by Caroline Pharis and Joseph Brewster and wife, which is as follows:
Plaintiffs who are minors and who sue by curator aver: "That in pursuance of said agreement said mother of Evangeline then and there surrendered the care, custody and control of said infant Evangeline to said Joseph Brewster and he took her and placed her in his household as his child and continued to care for, support, maintain and recognize her as his child up to the time of her death; that said Evangeline from the date of said agreement up to the time of her death yielded a willing obedience to the said Joseph Brewster, and during all of said time said Evangeline did and performed the household duties of said Brewster and continued to live with said Brewster, discharging for him all of the duties commonly discharged by a child for its parent and giving him the affection due from a child to a parent."
It is further averred that said Evangeline married and had three children, the plaintiffs; that she died in 1883; that Joseph Brewster, having been divorced from his wife Martha, re-married, and upon his death in 1886 left a widow, Prucenia Brewster, but no lineal descendants.
Brewster's estate consisted of personalty only, and his administrator, his widow, and collateral kindred were made defendants. Plaintiffs prayed for a decree "establishing their rights as aforesaid, under contract and agreement made and entered into as aforesaid, and declaring them to be the heirs at law of said Brewster, and as such entitled to said estate, and that said contract be specifically enforced against said estate and the defendants herein, and for such other and further relief as may seem proper." Defendants answered, denying the allegations of the petition and charging that the alleged written agreement was a forgery. They also set up the judgment of the probate court of the city of St. Louis adjudging the estate to the widow and collateral heirs to the exclusion of these plaintiffs who appeared there and set up their claim under said agreement, from which judgment plaintiffs appealed to the circuit court of said city, where their appeal was then pending.
The evidence tended to prove the allegations of the petition. It also appeared that Brewster and his wife were childless, and were well off financially; that Mrs. Brewster and Evangeline's mother were sisters, the latter being a widow and poor. At the close of plaintiffs' case the court sustained a demurrer to the evidence, rendered judgment for defendants and plaintiffs have appealed.
I. It is difficult to perceive what office a demurrer to the evidence in an equity case performs. Commissioner DeArmond, in Leeper v. Bates, 85 Mo. 224, said that in such a case But the court there held that the demurrer to the evidence was improperly sustained, because plaintiff made out a prima facie case. In Cox v. Cox, 91 Mo. 71, 3 S.W. 585, an issue of fact in an equity case was submitted to the jury, and the court finally directed the jury to return a verdict for the defendant, and Judge Ray, speaking for this court, held that plaintiff was not prejudiced by this, saying: "Virtually this was a finding to the same effect by the chancellor of his own motion, and such as he was authorized to make," non obstante veredicto.
In actions at law the demurrer to the evidence concedes every fact which the evidence tends to prove, and every inference fairly deducible from the facts proved, and we see no reason why it should not perform the same office in an equitable proceeding. When the chancellor decides a case upon its merits, we defer somewhat to his finding and judgment, but what is his finding when he sustains a demurrer to the evidence? Manifestly there is no finding. He simply declares that the evidence does not tend to prove the issues tendered, neither directly nor inferentially. In this case then, in the determination of the question whether the demurrer to the evidence was properly sustained, we must...
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