Kennedy v. Marshall
| Decision Date | 26 June 1945 |
| Docket Number | 31839. |
| Parties | KENNEDY et al. v. MARSHALL. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by William B. Kennedy against Mabel Marshall, executrix of the estate of Ella Rogers, deceased, to recover the amount of an alleged loan. From a judgment for defendant dismissing plaintiff's action on demurrer to the evidence, William Bernard Kennedy and another, as joint executors of the estate of plaintiff who died after trial, appeal, the action having been revived in the names of such executors.
Affirmed.
Syllabus by the Court.
When a person, now deceased, received from her brother-in-law the sum of $25 per month, as a gift, until the amount given aggregated $3,775 and thereafter orally agreed to treat the money received as a loan and to repay the same from the assets of her estate, the promise is without good consideration and is not legally enforceable.
Keaton Wells, & Johnston, of Oklahoma City, for plaintiffs in error.
Twyford Smith & Crowe, E. P. Ledbetter, and Louis Woodruff, all of Oklahoma City, for defendant in error.
This cause is presented on appeal from the District Court of Oklahoma County where it was instituted on February 6, 1943 by William B. Kennedy, as plaintiff, against Mabel Marshall executrix of the estate of Ella Rogers, deceased.
Plaintiff's petition was divided into two 'causes of action', the first of which asserted that between and including January 1 1919 and July 31, 1931 the plaintiff loaned Ella Rogers the sum of $3,775 and that on or about July 31, 1931 an oral agreement was made whereby Ella Rogers agreed that she, through her estate, would repay said sum after her death.
It was alleged that Ella Rogers died on July 19, 1942, a resident of Oklahoma County, and that her estate is being administered by the county court of that county. Plaintiff also asserts that on November 10, 1942 plaintiff filed his claim for the sum of $3,775 with the defendant administrator who, on November 10, 1942, approved said claim and presented the same of the county judge who thereupon approved and allowed the same.
Thereafter and on January 12, 1943 there was filed in the county court a motion to vacate approval of the claim which motion was heard and sustained. The claim was thus disallowed.
Plaintiff's second cause of action constituted an effort to state a cause of action on the same debt as that set forth in his 'first cause of action'. It adopts by reference all of the allegations of his first cause of action and in addition thereto asserts that on or about September 15, 1939, Ella Rogers proposed that the debt of $3,775 be paid in common stock of the T. H. Rogers Lumber Company, which amount of stock the said Ella Rogers then owned and which by will of September 15, 1939 she bequeathed to the plaintiff, W. B. Kennedy.
Plaintiff alleged that thereafter and on March 3, 1941 Ella Rogers executed and published another last will and testament revoking all prior wills without making any provision for the payment to the plaintiff of the sum of $3,775 in common stock of the T. H. Rogers Lumber Company or otherwise.
Plaintiff in the prayer of his petition sought judgment decreeing that the estate of Ella Rogers is indebted to him in the sum of $3,775 and that the said sum be established as a proper claim against such estate.
On February 9, 1943 Pauline Fisher Smith and Gladys Wilson Wheeler, the sole beneficiaries under the will of Ella Rogers, filed there motion to be made additional parties defendant. On March 11, 1943 the motion was heard and denied but it was ordered that said parties might appear through attorneys of their choice and it was further noted and ordered that the objection of said parties to the deposition of W. B. Kennedy be withdrawn.
On March 22, 1943 the defendant Mabel Marshall, executrix of the estate of Ella Rogers, deceased, filed her amended answer consisting of a general denial, a plea of the statute of limitations, an assertion that the oral agreement, if made, was wholly without consideration and void; an assertion that there was a fatal variance between the claim filed in the county court and the claim sued upon in this action, and an assertion that the claim filed in the county court amounted to an election of remedies by virtue of which plaintiff is now estopped to urge the claim sued upon in this action.
Plaintiff's reply was a general denial.
On November 16, 1943 the cause was tried without the aid of a jury. The plaintiff introduced his evidence and rested. The defendant demurred to plaintiff's evidence. Both parties moved for judgment. The demurrer to the evidence was sustained by the trial court and plaintiff's action was dismissed.
On March 23, 1944 the plaintiff died. William Bernard Kennedy, his son, and Roy E. Fellers were appointed joint executors of his estate. This cause was thereafter revived in the names of William Bernard Kennedy and Roy E. Fellers, joint executors, as plaintiffs.
The plaintiffs have appealed and appear before this court as plaintiffs in error. The order of appearance is thus preserved. Our continued reference to the parties will be by their trial court designation.
Plaintiffs first urge that the judgment is contrary to the evidence. They then urge that the judgment is contrary to the applicable law; that the claim is not barred by the statute of limitations; that the agreement is supported by a sufficient consideration; that there is no variance between the claim filed (in the county court) and the claim sued upon, and that the trial court committed error in overruling plaintiff's motion for judgment and in sustaining defendant's demurrer to plaintiff's evidence and defendant's motion for judgment.
In this case one of the above propositions is all that need be considered. If the trial court was correct on any one of the theories upon which relief could properly be denied its error, if any, on the remaining theories becomes and is immaterial.
Ella Rogers is a sister of T. H. Rogers, the founder of the Rogers Lumber Company. She worked for the Rogers Lumber Company until 1911 when she quit due to failing health.
The plaintiffs' testate, William B. Kennedy, was a brother-in-law of T. H. Rogers. Mr. Kennedy was in charge of the lumber company after the death of Mr. Rogers. Beginning on January 1, 1919 and continuing thereafter until July 31, 1931 Mr. Kennedy caused the secretary-treasurer of the lumber company to transfer from his account to the account of Ella Rogers the sum of $25 each calendar month until the total amount transferred was $3,775, which constitutes the fund over which this lawsuit started.
Miss Rogers owned a number of shares of stock in the Rogers Lumber Company. She also carried her personal account with the company as did Mr. Kennedy. There is no proof in the record which indicates that Miss Rogers knew the source from which her $25 per month came. She may have thought it was a part of the dividends from her stock in the lumber company. Miss Rogers first learned the source from which the $25 per month had been paid in July of 1931. She then decided to treat the money received as a loan and then orally agreed with Mr. Kennedy that the sum received should be paid back on her death from the assets of her estate.
Subsequent to this oral...
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