Ver Standig v. St. Louis Union Trust Co.

• Decision Date: 12 November 1936
• Citation: 98 S.W.2d 588,339 Mo. 539
• Parties: Jessie Ver Standig, Appellant, v. St. Louis Union Trust Company, a Corporation, Executor of the Estate of Cora Weil et al
• Court: Missouri Supreme Court

98 S.W.2d 588

339 Mo. 539

Jessie Ver Standig, Appellant, v. St. Louis Union Trust Company, a Corporation, Executor of the Estate of Cora Weil et al

Supreme Court of Missouri

November 12, 1936

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge.

Reversed and remanded.

Donnell & McDonald and George F. Wise for appellant.

An oral contract to devise or convey real estate in consideration of the rendition of services is specifically enforcible whenever the services rendered pursuant to such contract are of such a peculiar nature that their value cannot be readily estimated in terms of money; the services in the case at bar rendered pursuant to such an oral contract were of such a peculiar nature, and, therefore, the contract should be specifically enforced. 58 C. J. 1018; Ver Standig v. St. L. Union Trust Co., 62 S.W.2d 1094; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Berg v. Moreau, 199 Mo 416, 97 S.W. 901, 9 L. R. A. (N. S.) 157; Hall v Dodson, 274 S.W. 462; Fishback v. Prock, 279 S.W. 38, 311 Mo. 494; Sutton v. Hayden, 62 Mo. 101; Hall v. Harris, 145 Mo. 614, 47 S.W. 506; Gupton v. Gupton, 47 Mo. 37; Bryant v. Stahl, 217 S.W. 31; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674.

Meyer Blocher and Bryan, Williams, Cave & McPheeters for respondents.

(1) Where it appears on the face of plaintiff's petition that relief is barred by plaintiff's own laches, this point may be raised by demurrer. Bliss v. Prichard, 67 Mo. 181; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892; 21 C. J. 435. (2) It affirmatively appears on the face of plaintiff's petition herein that plaintiff is not entitled to relief in equity in this suit, because plaintiff's rights are barred by plaintiff's own laches. State ex rel. Polk County v. West, 68 Mo. 229; Burdette v. May, 100 Mo. 13, 12 S.W. 1056; McKee v. Downing, 224 Mo. 115, 124 S.W. 7; Price v. Boyle, 287 Mo. 257, 229 S.W. 206; Burgess v. St. Louis County Ry. Co., 99 Mo. 496. (3) The rights of the devisees under the will of Julius Weil, the widower of Cora Leon Weil, who had renounced her will, are superior to any of plaintiff under the alleged oral contract. Secs. 319, 325, R. S. 1929; Sec. 350, R. S. 1909; O'Brien v. Sedalia Trust Co., 5 S.W.2d 74; Owens v. McNally, 113 Cal. 444, 45 P. 710, 33 L. R. A. 369; In re Arland's Estate, 131 Wash. 297, 230 P. 157; Mayfield v. Cook, 201 Ala. 187, 77 So. 713; Alexander on Wills, sec. 97. (4) The executors of the wills of Cora Leon Weil and Julius Weil are not proper parties defendant and no cause of action is stated against them. Secs. 130, 142, 144, 146, R. S. 1929; McQuitty v. Wilhite, 218 Mo. 586, 117 S.W. 730.

OPINION

Collet, J.

Action in equity to enforce specific performance of a parol contract to devise real estate. The trial court sustained a demurrer to the petition. Plaintiff declined to plead further and judgment was entered dismissing the bill. This appeal is from that judgment.

The petition alleged the following facts: Cora Leon was the wife of Julius Leon. They lived in the city of St. Louis where Mr. Leon owned considerable property, both real and personal. On October 15, 1917, he died. Mrs. Jessie Ver Standig, the plaintiff herein, was the niece of Cora Leon. For approximately two months immediately following the death of Mr. Leon plaintiff's husband, Bernard Ver Standig, rendered numerous services of a business and personal nature to Mrs. Leon (apparently without any agreement for compensation). At the end of that time Mr. Ver Standig told Mrs. Leon that the handling of her affairs was taking so much of his time that he would prefer that she secure the services of someone else to assist her, but if he was to continue to look after her affairs and administer to her personal wants he should be compensated therefor, whereupon, at the instance of Mrs. Leon, she and Mr. Ver Standig orally agreed that he should continue to render all services of a business and personal nature which she should request for the remainder of her lifetime and in consideration therefor, she, Mrs. Leon, would, at her death, devise by will to her niece, Mr. Ver Standig's wife, a tract of land with buildings thereon located at the southwest corner of DeBaliviere and DeGiverville avenues in St. Louis, known as the DeBaliviere Avenue property, the legal description of which we omit. A recitation of a number of services, both of a business and personal nature, which were rendered by Mr. Ver Standig pursuant to the above agreement follows. In that connection it is alleged that Mrs. Leon was of an exacting disposition and possessed of peculiarities which made the rendition of the services described unusually difficult and arduous. On February 2, 1923, Mrs. Leon married Julius Weil. She will hereafter be referred to as Mrs. Weil. After her remarriage Mr. Ver Standig continued to render such services as were requested, but the requests were less frequent and the services correspondingly less frequent. Mrs. Weil died November 12, 1929, leaving a will which was duly probated but which failed to devise the property referred to above or any other property to Mrs. Ver Standig. The tract involved herein was devised to the executors, as trustees for the benefit of the Jewish Orphans' Home of St. Louis, for the purpose of erecting a memorial to Mrs. Weil's first husband. Specific legacies and devises were made by the will. All these have been paid and discharged except those contained in the residuary clause. In the residuary clause the remainder of the property not elsewhere in the will specifically devised, was left to the executors in trust for certain purposes. The trust was to terminate upon the death of Julius Weil and the trust property paid over to the Jewish Sanatorium and the Jewish Orphans' Home of St. Louis. The will made the St. Louis Union Trust Company and Julius Weil co-executors thereof. Both qualified. On January 22, 1930, Julius Weil filed a renunciation of the will of Cora Weil, electing to take one-half of all the real and personal estate left by Cora Weil.

April 9, 1930, Bernard Ver Standig filed a claim in the probate court against the estate of Mrs. Weil setting out the services alleged in the present action and praying an allowance of $ 20,000 therefor. This claim was tried in the probate court, being resisted by the executors. The trial resulted in an allowance of $ 8,700. Julius Weil died July 24, 1930, leaving as the sole executor the St. Louis Union Trust Company. The remaining executor and the claimant both appealed from the allowance of the probate court. The cause was again tried in the circuit court, resulting in a judgment for $ 5000. One of the principal legatees under the will of Cora Weil co-operated with the executor in opposing the claim in the circuit court. Both in the probate court and in the circuit court it was asserted in defense of the claim of Bernard Ver Standig that his wife, the plaintiff herein, was entitled to enforce specific performance of the oral contract between Mrs. Weil and Bernard Ver Standig and thereby recover the real property above described. This argument was advanced as a sufficient ground for the denial of Bernard Ver Standig's claim. The same argument was made on appeal to the St. Louis Court of Appeals and there sustained resulting in the outright reversal of the judgment on September 12, 1933. [See 228 Mo.App. 1242, 62 S.W.2d 1094.]

Julius Weil left a will, appointing executors and making specific devises and legacies to a large number of devisees and legatees. Seventy-five per cent of these have been paid, leaving unpaid $ 17,000. In addition to the unpaid bequests, the expenses of administration and a small sum advanced by the executors remain unpaid. The executors of the estate of Julius Weil have a balance of $ 69,507.37 belonging to that estate. This balance represents securities having a questionable value so that it is impossible to determine whether these personal assets will be sufficient to retire the unpaid bequests or whether it will be necessary to resort to the sale of real property for that purpose. All of the residue of the estate of Julius Weil, remaining after the payment of the specific bequests, was devised and bequeathed in four equal shares to his sister and three brothers. Two of these brothers on August 12, 1932, executed warranty deeds purporting to convey one-eighth interests in the property involved in the present action. Conveyances of the one-eighth interests were then made back to each brother and their respective wives for the purpose of vesting the title as tenants by the entirety. One brother has since died.

The petition alleges that plaintiff has no adequate remedy at law and that the services rendered by Bernard Ver Standig cannot be readily estimated in terms of money. It is further alleged that since the death of Cora Weil the defendants have collected large sums of money as rents from the DeBaliviere Avenue property and that the property is now badly in need of repair. The petition requests the appointment of a receiver to handle this property during the pendency of this action, prays for the specific performance of the parol contract heretofore mentioned, prays for an accounting of the rents and profits derived from the property since November 12, 1929, and for a money judgment for the amount due. The petition names as defendants the executors of the estates of Cora Weil and Julius Weil, the cestui que trust under the will of Cora Weil, and the devisees and legatees under the will of Julius Weil. General demurrers were filed by a number of the defendants. One demurrer raised the specific point that improper parties were made defendants. All of the demurrers were sustained.

The legal issues are somewhat narrowed by the following statement...