Moore's Administrator v. Wagers' Administrator
| Decision Date | 22 March 1932 |
| Citation | 243 Ky. 351 |
| Parties | Moore's Administrator et al. v. Wagers' Administrator et al. |
| Court | United States State Supreme Court — District of Kentucky |
2. Executors and Administrators. — Contract between mother and putative father that latter shall make bastard an heir in consideration of mother's foregoing bastardy proceedings is enforceable by child against promisor's estate (Civil Code of Practice, sec. 18).
3. Wills. — Contract by putative father to make bastard "equal heir with rest of his children" in consideration of mother's foregoing bastardy proceedings held valid agreement that bastardy should share equally with other children in promisor's estate.
4. Wills. — Contract by putative father to make bastard "equal heir with rest of his children" in consideration of mother's foregoing bastardy proceedings should be construed to effectuate intention of parties.
5. Pleading. — Where putative father's contract to make bastard "equal heir with rest of his children" in consideration of mother's foregoing bastardy proceedings admitted on demurrer, apparent extravagance of promise is immaterial.
6. Executors and Administrators. — Contract by putative father to make bastard "equal heir with rest of his children" in consideration of mother's foregoing bastardy proceedings held enforceable by child's against promisor's personal representative, where child predeceased promisor (Ky. Stats., sec. 10).
Such contract is enforceable by child's representative against promisor's representative, because the child's death did not discharge the contract, neither did the promisor's, and the promisor's breach of contract can readily be amended by payment of damages by promisor's administrator.
7. Abatement and Revival. — As regards survival, action for failure of putative father to make bastard an heir held action for damages for breach of contract (Ky. Stats., sec. 10).
8. Parties. — Where no objection is made to joint action by bastard's personal representative and guardian of her child for putative father's failure to make bastard his heir, court need not determine who has right of action.
Appeal from Clay Circuit Court.
CHARLES N. HOBSON, FRANK P. STIVERS and A.D. HALL for appellants.
H.H. OWENS and ROY W. HOUSE for appellee.
Reversing.
Oliver Wagers was a widower, and Kitty Smallwood was a young lady. They were neighbors residing near each other in Clay county, Ky. His attentions to her attractiveness resulted in her giving birth to a girl child, which was named Hester. The child grew to womanhood and married a Mr. Moore; she later departed this life, leaving a child, Virginia Moore, as a result of that union. Hester Moore died the 27th day of March, 1929, and Oliver Wagers died May 20, 1930. On the 11th day of June, 1930, Anderson Smallwood was by proper orders of the county court of her residence, appointed administrator of her estate, and also as guardian of the infant Virginia Moore. In an action to settle the estate of Oliver Wagers, her administrator and the guardian of Virginia Moore, by an answer and counterclaim sought to recover of his estate, $6,818.18, as the portion of his estate to which he claims Virginia Moore was entitled by virtue of a contract between Oliver Wagers and Kitty Smallwood, her grandmother.
As the basis of his cause of action, he averred that Kitty Smallwood, the mother of Hester Smallwood, and Oliver Wagers, at the time Hester Smallwood was begotten, were unmarried people, and that Kitty Smallwood was the mother of Hester Smallwood, who was begotten in unlawful cohabitation of Kitty Smallwood and Oliver Wagers; that after Hester Smallwood was born, her mother threatened to institute bastardy proceedings against Oliver Wagers, charging him with being the father of Hester Smallwood, for the purpose of compelling him by such proceedings to contribute to the maintenance and support of Hester Smallwood, her bastard child; that they entered into an agreement with each other whereby Kitty Smallwood agreed not to institute bastardy proceedings against him; that, in consideration thereof, Oliver Wagers agreed to help raise her child, Hester, and "to make it an equal heir with the rest of his children"; that Kitty Smallwood performed her part of the contract, and that Oliver Wagers performed his part of the contract to the extent of helping Kitty Smallwood raise the child, Hester, including contributing to the payment of the cost of her burial, but that he violated his contract in that at the time he departed his life he had failed to make her an heir or "an equal heir with the rest of his children."
A promise by a man, not the father of a child, to make it his heir, is against public policy and therefore unenforceable. Davis v. Jones' Admr., 94 Ky. 320, 22 S.W. 331, 15 Ky. Law Rep. 89, 42 Am. St. Rep. 360. A contract on the part of a father of an illegitimate child to provide for it out of his estate is without consideration and not enforceable. An agreement of the reputed father of a bastard child in consideration of his mother not to prosecute him for the crime of seduction is likewise unenforceable. Mercer v. Mercer's Admr. 87 Ky. 30, 7 S.W. 401, 9 Ky. Law Rep. 884; Steele v. Crawford, 197 Ky. 798, 248 S.W. 197; Clark's Admx. v. Campbell, 212 Ky. 341, 279 S.W. 327. But a promise made by the father of an illegitimate child in consideration of the mother's agreement not to institute bastardy proceedings against him is valid and enforceable. Lewis v. Creech, 162 Ky. 763, 173 S.W. 133; Burgen v. Straughan, 7 J.J. Marsh. 583; Clarke v. McFarland, 5 Dana 45; Benge v. Hiatt, 82 Ky. 666, 56 Am. Rep. 912; Puthuff v. Sewards, 9 Ky. Law Rep. 578; Steele v. Crawford, supra; Clark's Admx. v. Campbell, 212 Ky. 341, 279 S.W. 327; Hacker v. Hornsby's Admr., 223 Ky. 122, 3 S.W. (2d) 173; Clark's Admx. v. Callahan, 216 Ky. 676, 288 S.W. 301.
On the authority of these cases, it may now be regarded as the settled law of this state that a contract between a putative father and mother of an illegitimate child, whereby he agrees to make the child an heir or equal with his other children in his estate, or to make provision out of his estate for such child, in consideration of the mother foregoing the institution of bastardy proceedings against him, is not only not void for uncertainty, but is enforceable after the death of the reputed father.
In Clark's Admx. v. Callahan, Hacker v. Hornsby's Admr., Clark's Admx. v. Campbell, and Lewis v. Creech's Admr., it was held that a promise by the father to provide for his illegitimate child out of his estate in consideration of the mother's agreement not to institute bastardy proceedings against him was valid and enforceable after the death of the father.
The child may enforce it against his estate. See cases supra and also Benge v. Hiatt, 82 Ky. 666, 56 Am. Rep. 912; Blakeley v. Adams, 113 Ky. 392, 68 S.W. 393. Such a contract is for the benefit of the child, and, if living, it is the real party in interest. Section 18, Civil Code of Practice; Matheny v. Chester, 141 Ky. 790, 133 S.W. 754; Gregory v. Harlan Home Coal Co., 182 Ky. 524, 206 S.W. 765; Hendrix Mill & Lumber Co. v. Meador, 228 Ky. 844, 16 S.W. (2d) 482; Bryant v. Jones, 183 Ky. 298, 209 S.W. 30.
The amount of the estate of the deceased father is easily ascertainable; the number of heirs he left surviving him are known, and what part of the estate to which each is entitled may be determined. Although the amount of the estate which he would accumulate after the making of the contract or leave for distribution at his death was uncertain at the time of the making of the contract, there is no uncertainty about it after his death. It is susceptible of performance by the personal representative of the reputed father.
We have often held that, where it is established by clear and convincing proof that one in consideration of services performed and to be performed agreed by a parol contract to leave property by will in consideration of services, where the consideration had been fully performed, a recovery may be had, and, in a case where the benefits to...
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