Roth v. Roth

• Decision Date: 21 April 1937
• Docket Number: 34568
• Citation: 104 S.W.2d 314,340 Mo. 1043
• Parties: Harry B. Roth and Frank Roth v. George Roth, Jr., Executor of the Will of Florence Roth, George Roth, Jr., Individually, and Norma Roth Mullins, Appellants
• Court: Missouri Supreme Court

104 S.W.2d 314

340 Mo. 1043

Harry B. Roth and Frank Roth v. George Roth, Jr., Executor of the Will of Florence Roth, George Roth, Jr., Individually, and Norma Roth Mullins, Appellants

No. 34568

Supreme Court of Missouri

April 21, 1937

Appeal from Putnam Circuit Court; Hon. A. G. Knight, Judge.

Reversed and remanded (with directions).

V C. Rose, Jr., for appellants.

(1) Respondents' (plaintiffs') petition wholly fails to state any facts sufficient to constitute any cause of action whatsoever against appellants (defendants). Walker v Bohannon, 243 Mo. 136; Younger v. Hoge, 211 Mo 456; Estes v. Desnoyers Shoe Co., 155 Mo. 577; Mathews v. Eby, 149 Mo.App. 161; Wingfield v. Railroad Co., 257 Mo. 365; Bank v. Hutton, 224 Mo. 72; 26 C. J. 1087, sec. 25; 37 C. J. 936, sec. 305; Secs. 850, 862, R. S. 1929; Kober v. Kober, 23 S.W.2d 152; Brown v. Irving Pitt Mfg. Co., 292 S.W. 1923. (2) The court erred in holding that there was a valid contract between Florence S. Roth, since deceased, and Harry B. Roth and Frank Roth, the respondents, because it was within the Statute of Frauds. Sec. 2967, R. S. 1929; Fox v. Courtney, 111 Mo. 147; Crane v. Berman, 297 S.W. 424; Logan v. Waddle, 287 S.W. 624; Jones v. Jones, 63 S.W.2d 146. (3) The alleged cause of action as disclosed upon the face of plaintiffs' petition and under the evidence adduced at the trial showed conclusively that it had been barred by the Statute of Limitations of this State. Secs. 850, 862, R. S. 1929; 37 C. J. 936, sec. 305; Kober v. Kober, 23 S.W.2d 152; Brown v. Irving Pitt Mfg. Co., 292 S.W. 1025; Shelby Co. v. Bragg, 135 Mo. 300. (4) The appellants were vested with sufficient title to the proceeds of the estate of their grandmother which descended from administration of said estate in Iowa, to such an extent that the court committed error in holding that respondents were entitled to share in the estate of Florence S. Roth, deceased, when such grandmother's estate constituted the most of it. Equity will protect the rights of remaindermen whether vested or contingent. 21 C. J., pp. 1012, 1029; Canada v. Daniel, 175 Mo.App. 65; Evans v. Folk, 135 Mo. 403; In re Estate of Beatty, 172 Iowa 174; Olson v. Weber, 194 Iowa 512; In re Estate of Cooksey, 203 Iowa 754; Mann v. Seibert, 209 Iowa 76; Volz v. Kaemerle, 211 Iowa 995; Iowa City State Bank v. Pritchard, 199 Iowa 676; Webb v. Webb, 130 Iowa 457.

Clare Magee and Lorenzo Jones for respondents.

(1) Respondents' petition states facts sufficient to constitute a cause of action; and the court has power to grant the relief prayed for. 38 Cyc. 735; 40 Cyc. 1068; 25 R. C. L., pp. 310-311; Wright v. Tinsley, 30 Mo. 369; Sutton v. Hayden, 62 Mo. 115; Ragsdale v. Achuff, 27 S.W.2d 6. (2) The contract which respondents entered into with Mrs. Florence Roth was fully performed on their part and such performance operated to take the case out of the Statute of Frauds. Farrer v. Patton, 20 Mo. 81; Bless v. Jenkins, 129 Mo. 657; Russell v. Sharp, 192 Mo. 285; McGinnis v. McGinnis, 274 Mo. 297; Carlin v. Bacon, 16 S.W.2d 46; Gates Hotel v. Real Estate Co., 52 S.W.2d 1011; Jansenn v. Christian, 57 S.W.2d 692; Jones v. Jones, 63 S.W.2d 146. (3) Respondents' contract with Mrs. Florence Roth is supported by sufficient consideration. 13 C. J. 346; Rhinehart v. Bills, 82 Mo. 534; Given v. Corse, 20 Mo.App. 132; 13 C. J. 347; Nelson v. Diffenderffer, 178 Mo.App. 49; 13 C. J. 348; Hill v. Ry. Co., 82 Mo.App. 191; 6 R. C. L. 659; Brandenburgher v. Puller, 226 Mo. 534. (4) Respondents' cause of action is not barred by the Statute of Limitations. Secs. 860, 861, 862, R. S. 1929; Rogers v. Brown, 61 Mo. 187; Zoll v. Scoper, 75 Mo. 460. (5) Mrs. Harry Roth was not a party to the agreement and was a competent witness for the respondents. Sec. 1728, R. S. 1929; Slagle v. Gallaway, 64 S.W.2d 928; Hughes v. Henshaw, 282 S.W. 1020. (6) The contract between respondents and Florence Roth clearly showed an intention of the parties to include the property after-acquired from her mother's estate; and the Will of her mother gave her that right; so that there can be no trust fastened on the property in favor of appellants as regards the $ 6000. 40 Cyc. 1068.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

The defendants herein are a half brother and half sister of plaintiffs, who are brothers. Defendants have record title to certain real property situate in the town or city of Unionville, in Putnam County, which they acquired through the will of their deceased mother, plaintiffs' stepmother. Plaintiffs brought this suit in equity asserting that they are "entitled jointly to an undivided one-half interest" in said real property by virtue of a certain contract or agreement between them and their stepmother and pray the court to so find and adjudge. Upon trial of the cause the court entered its judgment and decree granting plaintiffs' prayer, divesting defendants of an undivided one-half interest in all the property involved, and investing plaintiffs therewith. Title to real estate being involved we have jurisdiction of defendants' appeal.

Being here in the nature of a trial de novo we shall, with a view to keeping the parties and issues perhaps more clearly in mind, refer to the parties as plaintiffs and defendants. Plaintiffs, as respondents here, "adopt" the statement of the case that appellants make in their brief and therefore the following facts and events, shown by the evidence, are largely taken from appellants' statement without quotation indicated. George Roth, Sr., long a resident of Unionville, was engaged for many years in the retail hardware business in that city. He was twice married. Three children were born of the first marriage, Harry B. Roth and Frank Roth, plaintiffs, and another son Edward, who died leaving no issue. His first wife having died Roth again married. Two children, Norma Roth, now Norma Roth Mullins and George Roth, Jr., defendants, were born of this second marriage. When he was about twenty years of age the eldest child, Harry (one of the plaintiffs), obtained employment as a traveling salesman in which line of work he was thereafter regularly employed. The father Roth, Sr., owned a business house, referred to as the store building, on the north side of the public square and also a residence, in Unionville. As of the time of Roth's death (in 1916), and the time of the trial, the value of these pieces of real estate was variously estimated as $ 5000 to $ 8000 on the store building and $ 1800 to $ 2500 on the residence. At some time about, or prior to, 1907, Roth, Sr., gave a deed of trust on the residence securing a loan in the principal sum of $ 3000, and about, or prior to, 1911, gave a deed of trust on the store building securing a loan in the principal sum of $ 6000. From about 1903 until his death June 5, 1916, the father seems to have labored under a continuous and pressing financial strain. During this entire period Harry repeatedly came to his father's assistance. The father was authorized from time to time to draw on a bank account maintained by Harry at a Unionville bank. The evidence shows that during the years 1906 to 1910, both inclusive, the father checked on this account to pay wholesale bills, insurance, taxes and other of his own pressing debts, in an amount aggregating more than $ 3000. Frequently thereafter upon the urgent importunities of both his father and stepmother for financial help, as appears from letters in evidence, Harry advanced them various sums of money and also paid wholesale bills and other expenses for his father. He paid one note for his father in the amount of $ 500 with interest. He also advanced his father money on a number of notes which the father had taken from customers in payment of accounts. Such of these notes that were never paid were in evidence. Harry estimated that during the period mentioned he had, in the manner stated, paid for his father's benefit, and in an effort to relieve his financial distress, approximately $ 8000 none of which was ever repaid. It appears, that Harry's brother, and coplaintiff herein, Frank was physically afflicted; it is said at one place that Frank "was deaf and afflicted and has been all his life." It is vaguely suggested that he was so physically incapacitated that he could not earn a livelihood and the responsibility for his support seems to have fallen to Harry. Plaintiffs allege, and defendants concede that plaintiffs' evidence tends to show, that the father orally promised or agreed that, in consideration of the provision made by Harry for the care of Frank and of the financial assistance given by Harry to the father, he would by will devise and bequeath one-half of his estate to Harry and Frank. Pursuant to that understanding the father, on May 11, 1909, executed a will in due form, which he exhibited and submitted to Harry. It is apparent that Harry considered the will as fully conforming to the alleged agreement or understanding between his father and himself. The will devised and bequeathed to testator's wife Florence, defendants' mother and plaintiffs' stepmother, a life estate in all of testator's property with the right to sell, mortgage or convey any part or all of same if she should deem it best to do so and invest or use the proceeds in such manner as she thought best, with remainder to be divided equally between the four children Harry, Frank, Norma and George, Jr. This will was never revoked. By deed dated and acknowledged July 30, 1907, recorded October 3, 1910, the father conveyed the residence to his wife Florence subject to the deed of trust thereon securing the principal sum of $ 3000, and later also conveyed the store building to her, by deed dated and acknowledged March 17, 1911, recorded March 18, 1911, subject...