Ver Standig v. St. Louis Union Trust Co.

• Decision Date: 14 June 1939
• Docket Number: 36151
• Citation: 129 S.W.2d 905,344 Mo. 880
• 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

129 S.W.2d 905

344 Mo. 880

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

No. 36151

Supreme Court of Missouri

June 14, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded (with directions).

Donnell & McDonald and George F. Wise for appellant.

(1) A decree of specific performance of the contract should have been rendered on the evidence in the record; for (a) The evidence proved that the contract was made; (b) The evidence proved that the contract was performed by B. Ver Standig; (c) The evidence proved that the services rendered were of a peculiar nature and that their value could not be readily estimated in terms of money; Ver Standig v. St. Louis Union Trust Co., 62 S.W.2d 1094; (d) There are numerous cases, in which contracts to devise real estate in consideration of the rendition of services have been specifically enforced, when the evidence to prove the contract was not as strong as, or no stronger than, the evidence in the case at bar; Berg v. Moreau, 199 Mo 416, 97 S.W. 901; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Smith v. Lore, 29 S.W.2d 91; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674; Byrant v. Stahl, 217 S.W. 31; Cave v. Wells, 5 S.W.2d 636, 319 Mo. 930; Signaigo v. Signaigo, 205 S.W. 23; Hall v. Dodson, 274 S.W. 462; Hall v. Harris, 145 Mo. 614, 47 S.W. 506; Fishback v. Prock, 279 S.W. 38, 311 Mo. 494; Carney v. Carney, 95 Mo. 353, 8 S.W. 729. (e) Defendants' evidence does not defeat plaintiff's right to a decree; for defendants' principal contention, namely, that a quarrel took place between deceased and the Ver Standigs in Europe over money matters or because they did not want her to marry Julius Weil was disproved in fact by letter written by deceased; it does not show that B. Ver Standig ever breached the contract which he made with deceased; and it consisted principally of hearsay testimony and self-serving declarations on the part of deceased, which are inadmissible. Fishback v. Prock, 279 S.W. 38, 311 Mo. 494; Berg v. Moreau, 199 Mo. 416, 97 S.W. 901; Pursifull v. Pursifull, 257 S.W. 117; Lanphere v. Affeld, 99 S.W.2d 36; Ragsdale v. Achuff, 27 S.W.2d 6; Bland v. Buoy, 74 S.W.2d 612, 335 Mo. 967. (2) The court erred in excluding the testimony of B. Ver Standig; for in an action upon a contract for the benefit of a third party, when the opposite party is dead, the contracting party, who has no interest in the action, is not disqualified as a witness; and Signaigo v. Signaigo, 205 S.W. 23; Craddock v. Jackson, 223 S.W. 924; Taylor v. Coberly, 38 S.W.2d 1055, 327 Mo. 940; Kidd v. St. Louis Union Trust Co., 74 S.W.2d 827, 335 Mo. 1029; Howard v. Hardy, 128 Mo.App. 349, 107 S.W. 466. (3) The court erred in admitting, over the objection of plaintiff, hearsay testimony and self-serving declarations on the part of the deceased, which testimony and declarations were inadmissible. Fishback v. Prock, 279 S.W. 38, 311 Mo. 494; Berg v. Moreau, 199 Mo. 416, 97 S.W. 901; Pursifull v. Pursifull, 257 S.W. 117; Lanphere v. Affeld, 99 S.W.2d 36; Ragsdale v. Achuff, 27 S.W.2d 6; Bland v. Buoy, 74 S.W.2d 612, 335 Mo. 967.

Meyer Blocher for Jewish Orphans' Home of St. Louis; Bryan, Williams, Cave & McPheeters for St. Louis Union Trust Company, Millie W. Barnett, Josie E., Henry, Delia, and Jacob Weil, Alma Weil Sigan, Dorothy Levy, Rosalind Weil Harris, Meyer, David and Oscar Weil, Ernie Loeb and Ina Burns.

(1) The court should defer to the finding of the trial chancellor upon conflicting oral evidence that the evidence was not sufficient to support the alleged contract. Fessler v. Fessler, 332 Mo. 655, 60 S.W.2d 17; Norton v. Norton, 43 S.W.2d 1024. (2) The evidence in this case was not sufficient to justify a decree granting specific performance of the alleged oral contract under the rules of law laid down by the Supreme Court as to the proof of oral contracts to devise. Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 877; Stibal v. Nation, 98 S.W.2d 724; Kinney v. Murray, 170 Mo. 674, 71 S.W. 197; Grantham v. Gossett, 182 Mo. 651, 81 S.W. 895; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Munday v. Knox, 321 Mo. 168, 9 S.W.2d 960; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400. (3) The equities of the devisees under the will of Julius Weil are superior to any interest of plaintiff under the alleged oral contract. Ver Standig v. St. Louis Union Trust Co., 98 S.W.2d 588; Stibal v. Nations, 98 S.W.2d 724; R. S. 1929, secs. 319, 325; R. S. 1909, sec. 350; Owens v. McNally, 113 Cal. 444, 45 P. 710, 33 L. R. A. 369; Arland's Estate, 131 Wash. 297, 230 P. 157; Mayfield v. Cook, 201 Ala. 187, 77 So. 713; Alexander on Wills, sec. 97. (4) Mr. Bernard Ver Standig, the party who made the contract for the benefit of plaintiff, and who performed all of the services which furnish the consideration for the contract, was incompetent to testify as to the contract, the other party to the contract being dead. R. S. 1929, sec. 1723; Nowack v. Berger, 133 Mo. 24, 34 S.W. 489; Asbury v. Hicklin, 181 Mo. 658, 81 S.W. 390; McMorrow v. Dowell, 116 Mo.App. 289, 90 S.W. 728; Edmonds v. Scharff, 279 Mo. 78, 213 S.W. 823. (5) The alleged error complained of as to the admission of hearsay testimony and self-serving declarations should be disregarded because appellant's statement, brief and argument does not, as to this point, comply with the rules of the Supreme Court of Missouri. Rule 15, Mo. Sup. Ct.; Doody v. California Woolen Mills Co., 274 S.W. 692; Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S.W. 50. (6) No error was committed in admitting the testimony whose admission is attacked in point three of appellant's brief. (7) Even if such evidence was not admissible, nevertheless the court should not reverse this case. Lanphere v. Affeld, 99 S.W.2d 36; Marr v. Marr, 117 S.W.2d 230.

OPINION

Douglas, J.

This is an action for the specific performance of an oral contract to devise real estate. It is alleged that the contract was made by Cora Leon Weil, deceased, and Bernard Ver Standig, plaintiff's husband, and which the deceased agreed to devise a store and apartment building at De Baliviere and De Giverville Avenues in St. Louis to plaintiff in consideration of services to be rendered to deceased by plaintiff's husband. Bernard Ver Standig first filed a claim against Mrs. Weil's estate for the services rendered. He recovered, but his claim was ultimately knocked out by the St. Louis Court of Appeals on the ground that the present plaintiff is the proper party to make claim on the contract as the one for whose benefit the contract was made. [228 Mo.App. 1242, 62 S.W.2d 1098.] Immediately after that decision the present suit was filed. A demurrer to the petition was sustained and the bill dismissed. On appeal to this court the order of the trial court was reversed and the cause remanded. [339 Mo. 539, 98 S.W.2d 588.] Thereupon, a trial was had and judgment was entered in favor of the defendants and dismissing the plaintiff's bill. From that judgment plaintiff now appeals.

The petition alleges that in November, 1917, Cora Leon, then a widow, and Bernard Ver Standig orally agreed that he should continue to render until her death all such services as she would request of him with respect to her personal and business affairs, for which she would devise to plaintiff the property above mentioned. In pursuance of such agreement he rendered all the services she requested which consisted, generally, in supervising and managing her real estate, tending to leases, advising her about investments and almost daily personal attentions. The petition sets out the same services which are detailed in the Court of Appeals' opinion to which we make reference for the complete statement. In 1923 Cora Leon married Julius Weil. Thereafter, she did not request assistance as she did before her marriage. In 1929, she died leaving a will but failed to devise the property to the plaintiff. Julius Weil, her husband, renounced the will and elected to take one-half of the real and personal property of his wife's estate. He died in July, 1930. The defendant trust company was named executor of the wills of both Cora and Julius Weil, and other defendants include legatees under both wills. The petition prays for the title to the property to be vested in plaintiff and for an accounting of the rents and profits.

Defendants' answers make general denial of the petition and allege that if such contract was made it was by abuse of a confidential and fiduciary relationship; that Julius Weil had no knowledge of the contract; and as husband of Cora Weil his rights and the rights of his devisees are superior to those asserted by the plaintiff.

In a memorandum filed with the judgment the learned and distinguish chancellor stated that in his opinion the evidence was not sufficient to establish the contract. We do not agree with his finding. Where a case rests on testimony alone and that testimony is conflicting and contradictory so that the question becomes one of the credibility of the witnesses who were observed by the chancellor, then this court will usually defer to his findings unless we find them to be against the weight of the evidence. [Kingston v Mitchell (Mo.), 117 S.W.2d 226.] In addition specific performance is not a matter of right even though a party is entitled to compensation, but it rests entirely within the sound discretion of the chancellor to grant it. Especially is this true where the alleged contract is for the devise of land. Even so, when this court has found the weight of the evidence to be against the decree which has been entered, it has reversed the...