Ridenbaugh v. Young

• Decision Date: 28 June 1898
• Citation: 145 Mo. 274,46 S.W. 959
• Parties: RIDENBAUGH v. YOUNG.
• Court: Missouri Supreme Court

46 S.W. 959

145 Mo. 274

RIDENBAUGH v. YOUNG.

Supreme Court of Missouri, Division No. 2.

June 28, 1898.

CONTRACTS — PLEADING — CONSIDERATION — PUBLIC POLICY.

1. A petition setting out a contract in writing and under seal, whereby defendant, in consideration of the fact that he had instituted and was prosecuting a suit to set aside the will of their deceased father, and of the payment to him by plaintiff of one dollar and the costs and attorneys' fees incurred, promised to pay plaintiff a certain sum out of his share of decedent's estate, if he should succeed in annulling such will, and alleging compliance with the terms of such contract on plaintiff's part, and the successful issue of such suit, showed a valuable consideration for such promise by defendant, and therefore stated facts sufficient to constitute a cause of action.

2. Where plaintiff and defendant, who were the only heirs at law of their deceased father, entered into a contract with each other, to which the devisee under the will of decedent was not a party, for the prosecution by defendant of a suit which he had instituted to set aside such will, to which proceeding both plaintiff and such devisee were necessary parties defendant, and also for the payment of a certain sum by defendant to plaintiff, out of defendant's share of the estate, if the will should be set aside, in consideration of which plaintiff was to pay the costs and attorneys' fees incurred in the prosecution of such proceeding, such contract, being not only a fraud on one of the parties to such suit, but an imposition on the court, and against public policy, could not be enforced.

Error to circuit court, Buchanan county; Vinton Pike, Special Judge.

Action by Mary T. Ridenbaugh against George W. Young. A demurrer to the petition was sustained, and, judgment for costs having been rendered against plaintiff, she brings error. Affirmed.

John M. Dickson and Johnson, Rusk & Stringfellow, for plaintiff in error. Brown & Dolman, for defendant in error.

BURGESS, J.

This is a suit by plaintiff against defendant to recover the sum of $10,000 upon a promise contained in a written contract set out in the petition. The petition, leaving out the formal parts, is as follows: "Plaintiff, for her amended petition, states: That she and defendant are brother and sister, and the only children and heirs of George Young, deceased, surviving him. That on the ____ day of September, 1875, plaintiff and defendant entered into an agreement in writing and under seal, whereby it was agreed that defendant, in consideration of one dollar to him paid, and other considerations and promises therein named, should prosecute the suit then pending, and by him brought to set aside and annul a certain instrument of writing purporting to be the last will and testament of George Young, deceased, and, in the event said will was annulled, should pay this plaintiff ten thousand dollars ($10,000.00) out of his share of the estate of said George Young, deceased, and quitclaim certain real estate to George Young Ridenbaugh, a devisee under said will, and plaintiff should consent to the prosecution of said suit, and, in case said will was annulled, pay the costs and attorneys' fees therein. Said agreement was in words and figures as follows, to wit: `Articles of agreement made and entered into this ____ day of September, 1875, between George W. Young, of the county of Buchanan, and state of Missouri, party of the first part, and Mary T. Ridenbaugh, of the said county and state, party of the second part. Whereas, the said party of the first part has instituted proceedings in the circuit court of said Buchanan county to set aside and annul a certain instrument of writing purporting to be the last will and testament of George Young, deceased, and heretofore admitted to probate by the probate court within and for said county as the last will and testament of said George Young, deceased; and whereas, the said George W. Young and Mary T. Ridenbaugh and George Young Ridenbaugh are legatees and devisees of said George Young, deceased, under his last will and testament aforesaid, and said party of the second part has, in consideration of the mutual promises and agreements of the said party of the first part hereinafter set forth, consented and agreed with the said party of the first part to the institution and prosecution by the said party of the first part of the said suit and proceedings to set aside and annul the last will and testament of George Young, deceased: Now, therefore, know all men by these presents, in consideration of the promises and of the mutual agreements and consent of the said party of the second part to the institution and prosecution of the said proceedings to set aside the last will of George Young, deceased, as aforesaid, and in further consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, the said party of the first part...