Lebo v. Green
| Decision Date | 26 February 1968 |
| Citation | 426 S.W.2d 489,25 McCanless 301,221 Tenn. 301 |
| Parties | , 221 Tenn. 301 Mrs. Jean LEBO, Appellant, v. Mrs. Kathleen Barton GREEN, Individually and as Executrix of the Last Will and Testament of H. A. Green, Deceased. |
| Court | Tennessee Supreme Court |
Ashley, Malone, Ashley & Lawson, Dyersburg, for appellant.
Clark P. Moss, Dyersburg, for appellee.
Mrs. Jean Lebo sued Mrs. Kathleen Barton Green, individually and as executrix of the will of H. A. Green, deceased. Executrix demurred; her demurrer was sustained, and Mrs. Lebo has appealed.
Mrs. Lebo's original and amended bill alleged in substance that her mother died suddenly in January, 1922, when she was three years of age; that her father entered into an agreement with H. A. Green and his wife, Mrs. Aleene Nichols Green, for the adoption of Mrs. Lebo upon the agreement of Mr. and Mrs. Green that in return for the consent to the adoption, H. A. Green would take out more life insurance for Mrs. Lebo, and at the death of H. A. Green all his property would go to her. That pursuant to the agreement Arch B. Moore consented and agreed to the adoption which was effectuated by decree of the County Court of Dyer County on January 30, 1922. That thereafter Mrs. Lebo lived with her adoptive parents offering them the affection, companionship and services of a natural child. That she so lived until her marriage to William Lebo, after one year of college. That the following year, about three weeks after the birth of Mrs. Lebo's child at the Green home in Dyersburg, to which she had returned, H. A. Green and Mrs. Aleene Green separated with Mrs. Lebo remaining with Mrs. Green until she returned to her own home in New Orleans. That following the separation of her adoptive parents Mrs. Lebo returned occasionally to Dyersburg.
That in approximately the year 1934, Mrs. Lebo's natural father, Arch B. Moore, drowned, and provided only for his widow and son, through life insurance, providing nothing for Mrs. Lebo was was at that time in the eleventh grade in the Dyersburg Public School. That she expected nothing from her natural father's estate as she had 'always been advised that she was the legal child of H. A. Green and that at the time of her adoption the said H. A. Green entered into an agreement with the said Arch B. Moore that, as a consideration for the surrender of her adoption', Green had agreed to provide her an inheritance through life insurance or other property owned at his death.
That subsequent to the divorce, H. A. Green married defendant Kathleen Barton Green; that Green died testate in Dyer County on October 25, 1965, the owner of a valuable estate; that he devised and bequeathed almost his entire estate to his wife, bequeathing Mrs. Lebo only one dollar. That Green had not otherwise complied with his agreement to provide an inheritance for appellant; that through mistake, inadvertence or fraud, the written contract failed to express the true and accurate agreement between Moore and Green as regards the provisions Green would make for his adoptive daughter by life insurance and by leaving all his property to her; that through mistake, inadvertence or fraud, the written contract did not embody this agreement to take out more life insurance for complainant, and for Green to leave her all his property at his death. But that Moore executed the agreement believing it contained these terms of their prior oral agreement. That she and her natural father fully performed their part of the agreement but that Green breached his contract by failing to devise and bequeath his estate to her.
That she was entitled to have the contract reformed, and as reformed, to have it specifically enforced, or, to be awarded damages for its breach; or, to have a decree for compensation for services rendered on an implied contract between herself and Green.
The prayers were that the contract of adoption be reformed so as to express the real contract between the parties as alleged in the original and amended bill; that the contract be specifically performed, or complainant be awarded damages for its breach; that defendant be estopped from denying the terms of the contract as reformed or from relying on the statute of frauds as a defense thereto; or, that complainant be awarded reasonable compensation for services rendered under an implied contract to perform such services; and for general relief.
Mrs. Kathleen Barton Green demurred to the original and amended bill on the following grounds:
'I. The bill shows on its face that the alleged contract is in violation of the statutes of fraud as contained in Section 23--201, Tennessee Code Annotated.
II. Because the contract filed an exhibit three to the original bill is plain, clear and unambiguous and therefore cannot be altered, reformed, changed or modified by oral proof.
III. Because the bill and amended bill shows on its face that there was no written contract between the parties by virtue of which the complainant was to be the beneficiary of the defendant's will or to be left any life insurance.
IV. Because the bill shows on its face that exhibit three contained the whole agreement between the parties.
V. Because the alleged contract, if valid, would defeat the marital rights of the defendant, Mrs. Kathleen Barton Green, in both the real and personal property of the defendant and would, therefore, be against public policy and unenforceable.
VI. Because any contract involving land must be in writing.
VII. Because the bill shows on its face that the complainant is not entitled to specific performance of said alleged oral contract.
VIII. Because if said written contract could be altered by oral proof the bill shows on its face that the enforcement of the same would show an undue hardship on the defendant.
IX. Because there is no equity on the face of the bill of the amended bill.
X. Because the bill shows on its face that there was no contract for payment for any services rendered, if any, by complainant and such relief would be contrary to the provisions of the adoptive contract.
XI. Because the bill shows on its face that complainant was supported by the defendant while in his home and as a child or adopted child of the defendant's husband, H. A. Green, the said H. A. Green, was entitled to her services as a member of the family.
XII. Because the bill shows on its face that complainant is not entitled to any damages for any reason.
XIII. Because the defendant is not liable for the specific relief prayed for or any part thereof.'
Without comment on any one of the grounds of the demurrer, Judge Robert D Jones sustained it and a decree was entered dismissing the amended original bill.
Mrs. Lebo has appealed, and has assigned errors, including the following:
'The trial court erred in sustaining the appellee's demurrer and each ground thereof and thereby holding that complainant's bill failed to state a cause of action sufficient to sustain a decree for the relief prayed for.'
Following this assignment of error, error is assigned with respect to each ground of the demurrer as though that ground was the basis of the final decree.
Having concluded that the ground of dismissal of Mrs. Lebo's suit which is made the basis of the first assignment of error required a dismissal of her suit, we shall direct our discussion to the correctness of the Chancellor's action.
In order to discuss the equitable principles which in our opinion required the dismissal of the original bill as amended, it is necessary to mention certain salient facts appearing in the bill and its exhibits. The first is, that the agreement of adoption said to be the product of fraud, inadvertence or accident, or mistake, was made in January, 1922, and approved by N. L. Scobey, County Judge of Dyer County. The agreement was filed in the Dyer County Court with the petition for adoption, which was decreed on January 30, 1922, following which the contract was copied in full into the Dyer County Court minutes in Minute Book T, pages 481--482, together with the petition and decree. In 1934, Arch B. Moore, complainant's natural father and the party who allegedly obtained the promises omitted from the contract, met his death by drowning. On October 29, 1965, H. A. Green, the last surviving party to the contract, other than the third party beneficiary, Mrs. Lebo, died. From the time of Mrs. Lebo's adoption as a three year old child until her marriage, sometime after completing one year in college, she lived with the Greens in Dyer County. And the next year after her marriage, when she expected her first child, she returned to the Green home in Dyersburg to have her baby; and stayed on at the home with Mrs. Green for some time, following the separation of the Greens about three weeks after the birth of her child. After that she made occasional visits to Dyersburg. There is no allegation that on the return visits to Dyersburg Mrs. Lebo visited with H. A. Green and his second wife, although the bill does allege that nothing occurred between H. A. Green and Mrs. Lebo to alienate them from each other.
The equitable basis for the original bill as amended is in its entirety as follows:
'That the written contract between Arch B. Moore and H. A. (Authur) Green, made Exhibit (3) to the original bill, through mistake, inadvertence or fraud, did not embody the actual agreement theretofore made as aforesaid, but that said provision and the intention of the parties relating to H. A. Green's agreement to take out more life insurance for complainant and to leave all of his property to complainant at his death was not fully and truly expressed therein; that the said Arch B. Moore executed said agreement believing that the terms of their prior oral agreement, including the above provisions had been fully and correctly expressed and embodied in said written agreement.'
In the Court's opinion the...
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...(1929).8 The basic purpose of reformation is to make the contract "conform to the real intention of the parties." Lebo v. Green, 221 Tenn. 301, 314, 426 S.W.2d 489, 494 (1968). It is "driven by a respect for the parties' intent and gives effect to the terms mutually agreed upon by the parti......
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