Oles v. Wilson

• Decision Date: 06 April 1914
• Docket Number: 7333.
• Citation: 141 P. 489,57 Colo. 246
• Parties: OLES v. WILSON et al.
• Court: Colorado Supreme Court

141 P. 489

57 Colo. 246

OLES v. WILSON et al.

No. 7333.

Supreme Court of Colorado

April 6, 1914

Rehearing Denied June 1, 1914.

Error to District Court, Boulder County; Carlton M. Bliss, Judge.

Action by May Oles against Thomas V. Wilson, as executor of Andrew J. Macky, deceased, and others, in which the Regents of the University of the State of Colorado and others intervene. Demurrers to the complaint being sustained, plaintiff brings error. Reversed and remanded.

Mat Oles brought suit against Thomas V. Wilson, executor of the estate of Andrew J. Macky, deceased, for the specific performance of a written contract, entered into on August 27 1880, by and between John M. Bradford and Andrew J. Macky. Thereafter the board of county commissioners of Boulder county and the regents of the University of the State of Colorado intervened. An amended complaint was thereupon filed, to which the interveners separately demurred, and, the demurrers being sustained, the plaintiff brings the cause here for review.

From the amended complaint, it appears that plaintiff's maiden name was Moina May Bradford; that John M. Bradford was her father, and died in New Mexico on July 9, 1892; that Andrew J. Macky died, testate, on June 11, 1907, possessed of an estate amounting to $450,000, and his will was admitted to probate in the county court of Boulder county on July 29 1907, and letters testamentary issued to Thomas V. Wilson the executor named in such will; that at and prior to the execution of the contract in question Bradford and Macky had been, and were, intimate friends and business associates that the former had the utmost confidence in the integrity of the latter and relied implicitly upon his promises covenants, and agreements; that Macky and his wife resided in Boulder, Colo., and were childless; that the mother of plaintiff was dead, and Macky had solicited and importuned Bradford for the care and custody of the plaintiff, who was then 7 years of age, in order that he might have the enjoyment of her society and companionship in his home, and promised Bradford that he would maintain, educate, and support the child as his own, and at his death leave to her one-third of his entire estate, if Bradford would surrender to him the care and custody of the child from tence on until she attained the age of 18 years, which Bradford thereupon consented to do; that in consideration of the premises Bradford and Macky executed the following contract to wit:

'This contract is made and entered into this twenty-seventh day of August, A. D. 1880, in the city of Leadville, county of Lake, state of Colorado, by and between Jno. M. Bradford, whose child is herein named as the cause of this action, and Andrew J. Macky, who desires and importunes the possession of said child, and in the presence and to the knowledge of those parties whose names are hereunto subscribed.

'Accordingly it is hereby agreed that Moina May Bradford, who was born the twentieth day of May A. D. 1873, at Lincoln, Nebraska, and whose mother, Alice D. Bradford, departed this life in Georgetown, county of Clear Creek, state of Colorado, in the year A. D. 1874, and who is the daughter and only living child of Jno. M. Bradford, shall, on this day, and for reasons agreeable to the said John M. Bradford and Andrew J. Macky, pass from the care and guardianship of the said John M. Bradford, in the city of Leadville, state of Colorado, to the home and keeping of Andrew J. Macky, in Boulder, county of Boulder, state of Colorado.

'It is also agreed that Moina May Bradford shall, by her father's consent, become a member of the family of Andrew J. Macky, subject to the discipline and control of the said Andrew J. Macky and his estimable wife, Adelaide B. Macky (which discipline and control it has been promised by both parties shall be, at all times, of a kind and parental character), from the day that she shall reach Boulder until she shall have attained her majority, and that she shall continue to remain in the said home and in said family for such indefinite period thereafter as shall be agreeable to herself, and to the members of said family.

'That only for good and sufficient reasons, consisting of alleged and proven neglect or mistreatment, or for acknowledged or proven mental or financial inability, or for any long and continued dissatisfaction of any or more parties herein named shall the said Jno. M. Bradford make any action to remove his daughter from the custody of Andrew J. Macky, and to further annul and discontinue the terms of this contract.

'It is further agreed that Andrew J. Macky shall maintain and provide for Moina May Bradford during the life of the said Andrew J. Macky, and during the life of the said Moina May Bradford, in a manner and amount appropriate and reasonable in proportion to his income and available means.

'It is also agreed that the said Andrew J. Macky shall cause the said Moina May Bradford to receive a liberal and thorough school and college education in such schools and other institutions of learning as shall in his judgment seem the most desirable and the best calculated to insure fruitful and satisfactory results, and that he shall also foster and promote such talent or ambition as may awaken or become manifest during her years of growth and development from childhood to womanhood.

'And it is further agreed that the said Andrew J. Macky shall make actual and careful provision for the future welfare and maintenance of the said Moina May Bradford, by preparing and having in his possession at all times a legally executed and valid will in which he shall name all money, property, and securities existing under his own right and title, and comprising his individual assets, together with a specific enumeration for the disbursement and distribution of the same, which shall state in plain and direct language the wishes of the said Andrew J. Macky in the event of his death, and in which aforesaid legally executed and valid will he shall bequeath to the said Moina May Bradford a portion amounting in the minimum to or sum equal to not less than one-third (1/3) of the valuation of his entire estate.

'In consideration of the welfare and happiness of his child, and in consequence of his absolute confidence in the word and integrity of Andrew J. Macky, and as an expression of the highest esteem and most sincere regard, this contract is framed and signed by

'Jno. M. Bradford.

'The terms of this contract are known and understood and accepted by

'A. J. Macky.

'This signature is witnessed by

'M. F. West.

'Lee Kahn.

'Leadville, Colo., August 27, 1880.'

It is further alleged that Bradford performed all the conditions of the contract and surrendered the plaintiff to Macky, who took her from her father's home in Leadville to his own home in Boulder, wherein she resided continuously as Macky's child until she was 22 years of age; that the Mackys sent the plaintiff to the public schools in Boulder and caused her to be enrolled therein under the name of May Macky, and introduced her to their friends and acquaintances as their daughter, and she was so known for the 15 years she resided in the home of the said Mackys; that plaintiff, for a period of 8 years, performed the household work in the home of the said Mackys and nursed and cared for Mrs. Macky, who was then feeble and at times unable to care for herself, and in all respects performed the conditions imposed upon her by the terms of the contract aforesaid; that Andrew J. Macky failed to perform the conditions imposed upon him by virtue of the said contract, and wholly disregarded the rights of the plaintiff in the premises, leaving and bequeathing to her no portion of his estate whatever, all of which appears from his last will and testament set forth in the complaint; that said will was made and executed in fraud of the rights and interests of the plaintiff, created by, and arising out of, said contract; that since the last will and testament of Macky was probated, and letters testamentary issued to said Wilson, as executor, the latter has made distribution thereunder of the specific legacies named in the will, except to the county of Boulder, which claims $50,000; that he has also, since the commencement of this action, distributed to the regents of the University of Colorado, the residuary legatees named in said will, the greater portion of the estate amounting in value to more than $300,000; that said legatees are expending large portions of the amount so distributed and received, and will continue to do so unless restrained by order of the court; that defendant Wilson, as executor, still has in his possession about $100,000 belonging to the estate which he will distribute under the terms of the will unless prevented by order of the court. It is further alleged that plaintiff had no knowledge of the contract in question, which had been kept from her designedly and fraudulently by the said Macky, until the 9th day September, 1909, long after the said will had been admitted to probate, and subsequent to the expiration of one year after the date that letters of administration were granted the executor, and that she was therefore wholly unable to file or present a claim against the estate, if it was her duty so to do, in the county court in said county for allowance or rejection within the period of one year after the granting of such letters of administration, and should not, by reason of said facts and circumstances, be prejudiced in the assertion and maintenance of her cause of action.

The prayer of the complaint is for specific performance of the contract; that plaintiff be decreed one-third of the Macky estate; that, pending a determination of the matter, the executor be restrained...