Klein v. Klein

• Decision Date: 17 July 1939
• Docket Number: No. 6595.,6595.
• Citation: 69 N.D. 353,286 N.W. 898
• Parties: KLEIN v. KLEIN et al.
• Court: North Dakota Supreme Court

69 N.D. 353

286 N.W. 898

KLEIN

v.KLEIN et al.

No. 6595.

Supreme Court of North Dakota.

June 28, 1939.

Rehearing Denied July 17, 1939.

On Petition for Rehearing.

Syllabus by the Court.

1. A court of equity may enforce an agreement to devise property after the death of the promisor as against heirs, devisees, and personal representatives of the deceased.

2. “A contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it.” Section 5841, Compiled Laws N.D.1913.

3. A third person for whose benefit a contract has been made cannot recover thereon if before he accepts the contract the parties thereto have rescinded it or terminated it by mutual agreement.

Appeal from District Court, Stark County; Harvey J. Miller, Judge.

Action by Nick Klein against Peter Klein, as the executor of the estate of Katherine Klein, deceased, and others, in the nature of an action in specific performance, wherein the plaintiff sought a decree declaring himself to be entitled to an undivided one-fourth interest in the estate of Katherine Klein, deceased. From a decree in favor of the plaintiff, the defendants appeal.

Reversed.

J. K. Murray, of Bismarck, for appellants.

T. F. Murtha and C. H. Starke, both of Dickinson, for respondent.

MORRIS, Judge.

This is an action in equity in the nature of specifice performance in which the plaintiff seeks a decree declaring him to be entitled to an undivided one-fourth interest in the estate of Katherine Klein, deceased. The plaintiff bases his claim upon an indenture made in 1924 between the deceased and the New York Foundling Hospital. The plaintiff was born in New York December 25, 1913. He was brought to North Dakota by the Foundling Hospital in 1922. A short time later he was turned over to Mrs. Klein, who was a widow residing with her family and three children upon a farm near Dickinson, North Dakota. The plaintiff was then about nine years old. The indenture provided that Katherine Klein should furnish the plaintiff with proper board, lodging, medical attention, schooling, religious training in the Catholic Faith, and surroundings and care usually provided for children of families of her station in life. It also provided that the plaintiff should live with and obey Mrs. Klein and demean himself as her child. The parts of the indenture that most directly bear upon this controversy, read as follows:

“If the said child is returned to the party of the first part when he shall become Twenty-one years of age, then the part of the second part will give to said child a new Bible, a complete suit of new clothes, together with all those he shall then have in use, and an outfit of at least the same in every respect as their own child.”

“And the part of the second part further agree, that if said child be not returned to the party of the first part when he attains the age of Twenty-one years, or shall not have been so returned before he shall have attained such age and this Agreement of Indenture be duly cancelled and annulled by the consent of both parties, or if said child be not legally adopted by said part of the second part before said child attain such age, then the part of the second part, in consideration of this Indenture and of being permitted by the party of the first part to keep such child, shall be deemed to have elected to keep, treat and maintain said child as if it were her own natural and legitimate child. And the part of the second part further agrees that, if the part of the second part shall die intestate, said child shall inherit and succeed to such share of the property, real and personal, of which the part die seized and possessed as would have descended or would have been distributed to said child if he had been the natural and legitimate child of the part of the second part; and that if the part of the second part shall die leaving a last will and testament, such will shall contain a provision or provisions, giving, bequeathing and devising to said child at least as large a share of the estate, real and personal, of the testator, as he would have received if said testator had died intestate and said child had been the natural and legitimate child of the part of the second part.”

The defendants, the natural children of Mrs. Klein, one of whom is the executor of her estate, appeal from the judgment of the court decreeing to the plaintiff a one-fourth interest in the estate of the deceased. The decision of the controversy requires the consideration of the following additional facts. Mrs. Klein substantially complied with the conditions which the indenture imposed upon her. The plaintiff, however, became involved with the law on several occasions. He was addicted to thievery and stole sums of money on various occasions. These crimes finally resulted in his being committed by the Juvenile Court to the State Training School in November 1928, for four and a half years. He was then sixteen years of age. The Klein family visited him at the school and on several occasions Mrs. Klein took him home for vacations. He was paroled to her in June 1933. She took him to her home where he remained for some time and was given care and spending money. He did odd jobs about her farm and also worked out for about four months. In June 1934 she consented to his enlistment in the army. He entered the army, served for two years, and never returned to live at the Klein home. He attained majority December 25, 1934. Mrs. Klein never adopted the plaintiff. She died October 14, 1937. About ten days prior to her death she made a will wherein she bequeathed the plaintiff $150. Most of her estate, amounting to about $10,000, was left to her natural children. The plaintiff has been paid the sum bequeathed to him. At the time he accepted the bequest he did not know about the indenture. He has not tendered back the amount of the bequest. At the time of the trial he was unable to make such tender for lack of funds. However, in his reply to defendants' answer he offers to deduct the amount of the bequest from the amount which he claims he is entitled to recover from the estate.

The appellants press two contentions: First, that the indenture was terminated prior to Mrs. Klein's death and never revived; and second, that the plaintiff, by his conduct in accepting and retaining the bequest provided for in the will, is estopped from asserting further claim to any portion of Mrs. Klein's estate. The contention that the indenture was terminated rests chiefly upon two letters and the testimony of Reverend Father Aberle, who has been the parish priest for some twenty years. While the plaintiff's case was before the Juvenile Court Father Aberle wrote to the Sisters of Charity in charge of the Foundling Hospital as follows:

“Some years ago Nick Klein from your institution was placed in the care of Mrs. Catherine Klein of this city. At that time Mrs. C. Klein lived on the farm six miles south of the city, since then however she has moved to town. Nick Klein was a hard child to manage from the very beginning, and has become unmanageable in the course of the years.

From what I understand your representative, who visited here last year, was requested by Mrs. C. Klein to take this Nick Klein back or find another home for him. The lady begged Mrs. C. Klein to try and keep him for another year. And this last year was an entire failure for the boy.

Last fall Nick Klein was in the hands of the Juvenile Court and in the County Jail for a time for stealing. During the winter months he attended our parochial school, but could not be kept to the end of the school year, as nothing was safe from him; and he went so far as to plunder the poor box and candle stand in the church on several occasions. I caught him several times, punished him, talked to him kindly, tried everything possible, but of no avail.

This summer he got again into the hands of the law for stealing in town. His case is still pending in the Juvenile Court, by which Court I was requested to notify you to take him back as soon as is possible otherwise the court will send him to the State Training School.”

The plaintiff contends that this letter was written at the instance of the Juvenile Court and that it does not amount to a request on the part of Mrs. Klein to have the plaintiff returned to the Foundling Hospital. The letter not only indicates that the court requested that the hospital be notified to take the plaintiff back, but it also recites that Mrs. Klein had previously requested a representative of the Foundling Hospital to take the plaintiff back or find another home for him, and that a representative of the hospital persuaded...