Merrill v. Thompson
| Decision Date | 06 December 1913 |
| Citation | 161 S.W. 674,252 Mo. 714 |
| Parties | HARRIETT A. MERRILL et al. v. ELLIOTT W. THOMPSON et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. Arch B. Davis, Judge.
Affirmed.
John H Taylor and Paul D. Kitt for appellants.
(1) This being an equity case, the court is not bound by the finding of the trial court, but will examine and weigh the evidence to ascertain whether it is sufficient to justify the decree. Collins v. Harrell, 219 Mo. 279; Lacks v. Bank, 204 Mo. 455; Plummer v. Knight, 156 Mo.App. 333; Russell v. Sharp, 192 Mo. 291; Waddington v. Lane, 202 Mo. 415. (2) The trial court erred in finding that there was an oral contract between the deecased Nathan Thompson and his two daughters, the plaintiff and Sophia Fulkerson, by which the said Nathan agreed to give or leave the land in question to such daughters, because: (a) The alleged oral contract was not clear, explicit and definite. (b) If the contract was proved, it was not the contract pleaded. (c) The contract was attempted to be established by conversations too ancient and too loose and casual. (d) The proof was not such as to leave no reasonable doubt that the contract as pleaded was in fact made and that full performance has been had. (e) The work relied upon as constituting performance is not referable solely to the alleged contract sought to be enforced, but might be referable to some other cause. (f) The rent received by plaintiff will more than offset any sums paid out by her in the support, maintenance and care of her father and mother so no fraud will be worked on plaintiff by refusing to enforce the alleged contract. (g) The proof, at best, shows a mere disposition or intention to devise by will as a reward for services already performed and money already advanced and does not show a contract to devise made before the acts of performance relied upon were had. Walker v. Bohannan, 243 Mo. 119; Forrister v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Kirk v. Middlebrook, 201 Mo. 245; Oliver v. Johnson, 238 Mo. 376; Russell v. Sharp, 192 Mo. 270; Berg v. Moreau, 199 Mo. 433; Kinney v. Murray, 170 Mo. 700; Rosenwald v. Middlebrook, 188 Mo. 58; Emmel v. Hays, 102 Mo. 186; Rogers v. Wolfe, 104 Mo. 9. (3) The making of the will by Nathan Thompson, plaintiff's father, is no evidence of a contract. (4) The evidence showing payment of debts of Nathan Thompson by the plaintiff was not relevant or material. The contract pleaded did not count on payment of debts as a consideration for the alleged provision by Nathan Thompson. The court erred in hearing incompetent evidence subject to objection. Russell v. Sharp, 192 Mo. 270; Asbury v. Hicklin, 181 Mo. 670. (5) The plaintiff did not acquire title by adverse possession. The court found she did not and the evidence sustained the finding, from which she has not appealed. Hendrick v. Musgrove, 183 Mo. 300; Golden v. Tyer, 180 Mo. 201; Benoist v. Rothschild, 145 Mo. 408; Warfield v. Lindell, 30 Mo. 272.
Lewis A. Chapman for respondents.
(1) In equity cases the appellant court will pass upon the facts together with all questions involved, though even in an equity case, where the evidence is evenly balanced, deference is paid to the finding of the chancellor. So in this class of cases, it is held that the credibility of witnesses can best be determined by the chancellor, who has the witness before him, and the Supreme Court will defer somewhat to finding of the chancellor; and when the evidence is conflicting, the Supreme Court will defer to the finding of the trial judge in equity cases. Equity cases are tried de novo, and the evidence reviewed, but the appellate court looks into the whole record, and if the judgment is right and founded upon competent proof, it will be affirmed. Benne v. Schnecka, 100 Mo. 250; Cox v. Cox, 91 Mo. 71; Erskine v. Lowenstein, 82 Mo. 301; Plummer v. Knight, 156 Mo.App. 333; Carpenter v. Roth, 192 Mo. 659; Williams v. Husky, 192 Mo. 549. (2) The finding and judgment was correct. The evidence that there was an oral contract made by Nathan Thompson with the plaintiff, Harriett, and her sister, Sophia, was clear and abundant. There really was no conflict on this point. The testimony of Fountain K. Thompson was clear. His testimony was that his father talked to him a number of times and then made the agreement with these daughters. The father had no other children with him, and these daughters were under no more obligations to support, nurse and attend their parents than the other children, who had left home and they were not obliged to stay. The evidence shows that the father agreed that if they would stay with him and care for him and their mother, as long as they lived and maintain a home for them on this land during their lives he would will them the land. They were to keep up the property, pay all the debts against it, pay all taxes and make all repairs. In other words this plaintiff, with her sister, were to support these old people and keep a home on that place for them, and stay with them and care for them, and furnish whatever money was necessary. It was understood that the plaintiff, Harriett, could not be with them all the time, as she had to make the money necessary to support them. These old people were in poor health and not able to work, and they wanted their daughters to care for them, because these daughters would give them that care and attention during the remainder of their days, such as money cannot buy. The only property was this forty acres of land, partially encumbered, worth at the time this contract was made about $ 1200 to $ 1400. Certain kinds of services of a personal nature have been recognized by a clear majority of the American cases as a sufficient act of part performance, unaided by possession or other act on plaintiff's part where the services rendered are of such a peculiar character that it is impossible to measure their value by any pecuniary standard, and where it is evident that the parties did not intend to measure them by any such standard, it is impossible adequately to compensate the party performing the services except by a decree of specific performance. There are some services that are incapable of valuation in money. As to these, the law permits individuals to make their own contracts. Sutton v. Hayden, 62 Mo. 114; Hiatt v. Williams, 72 Mo. 214; Gupton v. Gupton, 47 Mo. 37; Healey v. Simpson, 113 Mo. 346; Hall v. Harris, 145 Mo. 614; Hoch v. Habel, 32 Mo.App. 103; Sharkey v. McDermott, 91 Mo. 647; Fuchs v. Fuchs, 48 Mo.App. 18; Carney v. Carney, 95 Mo. 353; Berg v. Moreau, 199 Mo. 416; Nowack v. Berger, 133 Mo. 24; Russell v. Sharp, 192 Mo. 270. (3) It is competent for a person to make a valid and binding agreement to make a particular disposition of his property by last will and testament. Faxton v. Faxton, 28 Mich. 159; Sword v. Keith, 31 Mich. 247; Demoss v. Robinson, 46 Mich. 62; Meundy v. Foster, 31 Mich. 313; Johnson v. Hubbell, 10 N.J.Eq. 332; Van Dyne v. Vreeland, 11 N.J.Eq. 370; Carmichael v. Carmichael, 16 Am. St. 528; Bird v. Pope, 73 Mich. 483; Davidson v. Davidson, 13 N.J.Eq. 246. (4) The point is made that the will of Nathan Thompson is no evidence of a contract. It is true that the will, while it devised this property to the plaintiff and her sister, Sophia, did not mention the defendant, Elliott W. Thompson. The will as a conveyance of the property, so far as Elliott W. Thompson was concerned was a nullity. It was a mere attempt to carry out the agreement. The will was merely introduced in evidence to support the contract, and it was certainly very strong evidence to show the intent of the father, who doubtless supposed it was sufficient to accomplish his purpose. That the attempt to make a good will which failed was the fault of the scrivener. The attempt to make a good will, which failed, certainly did not place the daughters in a worse position than they were in before.
This was a bill in equity instituted in the circuit court of Livingston county, by the plaintiffs against the defendants, to quiet title, but in reality, to specifically enforce an oral contract alleged to have been entered into by and between Harriett A. Merrill, nee Thompson, and her sister Sophia, with Nathan Thompson, their father, whereby he agreed to convey to them a certain forty acres of land situated in said county, and particularly described in the bill, in consideration that the former agreed to live with, care for, support and maintain him and his wife, their mother, during their natural lives; Harriett, alleging and claiming that she, prior to the institution of the suit, purchased the interest of her sister Sophia, and that she intermarried with her coplaintiff, William T. Merrill.
The pleadings are in no manner assailed, and we will therefore put them aside.
A trial was had and the court found the issues as to the contract (title also having been alleged to have been acquired by the Statute of Limitation) in favor of the plaintiffs (there being no finding either way as to the claim of title by adverse possession), and in due time and in proper manner defendant duly appealed the cause to this court.
The evidence as usual in such cases, is quite voluminous, which we have carefully read, and that for the plaintiff tended to prove the following facts:
That sometime in the year 1869, Nathan Thompson acquired title to the land in controversy, moved thereon and there resided until his death. His family consisted of himself, wife and eight children. One, Dora, died without marrying. Prior to 1882, all of the other children married and left home, except the two daughters, Harriett and Sophia, who were living with their parents....
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