181 Mo. 658 | Mo. | 1904
The plaintiff brings this suit against the heirs of Samantha E. Baldwin, deceased, and the administrator of her estate, to enforce the specific performance of an alleged contract, to the effect that the plaintiff, who was then an infant four years old, was to be taken into the family of the intestate, reared as a daughter and receive, at the death of the intestate, one-half her estate. The petition states that in 1878 Mrs. Baldwin, who was then the wife of defendant John L. Baldwin, had one son, David, about fourteen years old; the alleged contract is stated in the petition in these words: “That at that time the said Samantha E. Baldwin took the plaintiff, then a child about four years of age, from her mother and orally agreed with the mother of this plaintiff, that if this plaintiff would live with her, the said Samantha E. Baldwin, and do the part of a child and act and live with her as a member of the family and render to her, the said Samantha E. Baldwin, all the attentions, services and care that a dutiful daughter would render in the family, that she, the said Samantha E. Baldwin, in consideration thereof, would, at her death, give to this plaintiff one-half of all the property of which she might die seized, and to her son, David Baldwin, the other half. ’ ’ The petition then states that the plaintiff went into the family on those terms and faithfully bestowed the care, attention and affection and rendered the services of a
The husband, as administrator, filed an answer denying all the allegations of the petition; then in his own right, as surviving husband, he filed another answer admitting all the allegations of the petition to be true. Mrs. Hicklin filed an answer which amounts to a general denial.
On the trial the plaintiff offered 'evidence which tended to prove as follows: She was born in the household of Mr. and Mrs. Baldwin while her mother was living there. She continued to live in the family until she was about four years old, when her mother got married and moved away taking her with her. About two months after moving away, her mother brought her back, and she was received again in the Baldwin family,
The only witness offered by the plaintiff to prove the alleged contract was the mother of the plaintiff with whom it is alleged Mrs. Baldwin made the contract. When this witness was offered the defendant, Mrs. Hicklin, objected, on the ground that it was the offer of the testimony of one of the parties to the contract in issue and on trial when the other party was dead. The court ruled that it would hear the testimony and pass on its admissibility afterwards.
The counsel for defendant said: “I would like to have the matter passed on now.” Counsel for plaintiff said: “We admit that the plaintiff is disqualified; but this is the agent who made the contract.” The court said: “I will hear her testimony subject to' your objection.”
This witness’s testimony as to the contract was that about two months after she had taken the child away, “Mrs. Baldwin had me bring her back. Q. Tell the
The rest of the plaintiff’s testimony was the relation by witnesses of the purport of conversations had with Mrs. Baldwin running through the period of the last ten years of her life, the substance of which was that she intended for Zoe to have her property at her death. The following is an epitome of this evidence:
George Edwards (colored): “She said Zoe was to have an equal share in the family.” Mrs. Scruggs: “She called it her Honey Creek farm and she said when she was done with it it was for Zoe.” Mrs. Taylor: ‘£ She' wanted Zoe to stay with her while she lived and take care of her and she would give her what she had at her death.” Prank Day, a young man paying attention to Miss Zoe: Mrs. Baldwin ‘ £told me how good Zoe was to work; said she never had to tell her the second time, and then she said she expected when she died to give Zoe everything she had; she said Zoe was next to Dave with her and she never expected bim to live long as he was afflicted sometime and she expected when he died Zoe was to have everything.” James Spencer was present and heard the conversation that Mrs. Taylor testified about, and had a conversation with Mrs. Baldwin about the time Zoe was married in which she said that when Mr. Asbury asked Mrs. Baldwin for Zoe; “she told him she always intended to give Zoe what she had if she stayed with her,” and Mr. Asbury promised he would never take her away. This witness had been reared in the family as a member, went to school, worked on the farm, was paid no wages, but understood he was' to have one of the farms; Dave, in his lifetime1,
At the close of the plaintiff’s evidence, the defendant, Mrs. Hicklin, asked the court to declare as a matter of law that under the evidence the plaintiff was not entitled to recover, which the court refused and defendant excepted.
Testimony was then introduced on the part of defendant, Mrs. Hicklin, which tended to show that Mrs. Baldwin, in the beginning, was averse to receiving the child in her family, but yielded to the wishes of her husband in that respect; also that after the death of her son, David, she frequently said that what she left would go to her sister, Mrs. Hicklin; that the Ploney Creek farm had come from their father, and she doubted if it was right for her to keep it, even in her lifetime, as her sister needed- it more than she did, but at all events at her death Mrs. Hicklin would have it.
The foregoing was objected to by the plaintiff as incompetent, being self-serving declarations; the court ruled that it would hear the evidence subject to the objections. Defendants also introduced testimony tending to impeach the testimony of Lockard, by showing that he had said on various occasions that Mrs. Baldwin told him her sister was to have her property at her death.
The cause was tried and submitted at the June term, 1900, and taken under advisement until the February term, 1901, when the court ruled on the objections made to the testimony during the trial, sustaining that of Mrs. Hicklin to the testimony of the plaintiff’s mother, and sustaining also that of the plaintiff to what'
I. The practice of hearing evidence subject to objection, reserving the ruling until the decision of the case, is erroneous, and is ground for reversal if the evidence is material and exception is preserved. And even when exception is not taken, if the evidence is incompetent and is of such a character as is justly calculated to influence the mind, the fact that it was received and retained while the cause was held under advisement, is a fact to be weighed by the appellate court when it is balancing the conflicting evidence and considering to what extent deference should be given to the finding of the trial judge. The chancellor himself does not know what influence the evidence may have had on his mind, and even though he concludes in the end to reject it as incompetent yet it is liable to leave its impression.
Besides, the party who has made the objection is left in a dilemma, not knowing whether to meet the testimony with testimony of like character to the contrary, or to trust to the final ruling on his objection in his favor.
It is a very rare exception when the question on the admissibility of evidence is so doubtful that it can not be decided by the chancellor to his own satisfaction after, at most, a few hours research, and if it is necessary to make that research he should stop the trial long enough to do it; the delay of the trial in such case, even if economy of time were the main consideration, will often prove in the end a saving of time and expense. But economy of time is of less importance than
II. The learned chancellor in this instance decided correctly that the plaintiff’s mother was not a competent witness for the plaintiff to prove the alleged contract. When this witness was offered on the part of the plaintiff her counsel said: “We admit that the plaintiff is disqualified; but this is the agent who made the contract.” And it is on that theory that respondent in her brief now contends that the witness was competent.
Our statute (E. S. 1899, sec. 4652), removes the disqualification on account of interest that the common law imposed, but adds the proviso “that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify, either in his own favor or in favor of any party to the action claiming under him,” etc. The question of the proper construction of that proviso has come before this court in many cases of varying, facts, calling for application of the statute in as many different phases. In Banking House v. Rood, 132 Mo. 256, l. c. 261, it was said: “This court has ever undertaken to conform its decisions to the spirit rather than to the strict letter of this statute. [Orr v. Rode, 101 Mo. 398.] . . . The exception was intended to prevent the injustice that would arise in permitting one party to the contract or cause of action to testify when the lips of the other are sealed in death. This equitable construction has been applied in a variety of cases. [Stanton v. Ryan, 41 Mo. 510; Williams v. Edwards, 94 Mo. 447; Orr v. Rode, supra; Leach v. McFadden, 110 Mo. 588; Bank v. Payne, 111 Mo. 298; Miller v. Wilson, 126 Mo. 54.]” And in further discussion of the principle and in illustration of it, it was pointed out in that case, that
Respondent refers to Godine v. Kidd, 64 Hun 585, to support her contention on this point. The court held in that case that the mother of the child, under circumstances similar to those in this case, was competent to prove the oral contract to adopt her. But the court was dealing with a case under the statute of that State which is quite different from ours. The only provision of the New York statute which it was claimed disqualified the witness was a section to the effect that a person under or through whom a party derives his title could not he
■In the case at bar the plaintiff’s mother, being a party to the alleged contract in issue and on trial, the other party being dead, was not a competent witness.
III. The equitable principle which the plaintiff lays down as the foundation of her case is not denied; it has often been before this court for judgment and has always been sustained. In one of the more recent cases this court, per Brace, P. J., stated the law in these words:
“A court of equity in this State will specifically enforce an oral contract to make a will in a particular manner, where a valuable consideration has been received for the promise, and a fraud would be perpetrated upon the promisee or beneficiary unless the contract be performed. But the proof of such a contract must be so cogent, clear, and forcible as to leave no reasonable doubt in the mind of the chancellor as to its terms and character; and where a consideration consists of acts to. be performed, there must be like proof that the acts performed refer to and result from that contract, and are such as would not have been done unless on account of that very agreement and with a direct view to its performance. ‘There must be no equivocation or uncertainty in the case. ’ This doctrine is established, and its application illustrated, in a long line of cases. [Charpiot v. Sigerson, 25 Mo. 63; Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sitton v. Shipp; 65 Mo. 297; Sharkey v. McDermott, 91 Mo. 647; Davis v. Hendricks, 99 Mo. 478; Rogers v. Wolfe, 104 Mo. 1;*674 Teats v. Flanders, 118 Mo. 660; Nowack v. Berger, 133 Mo. 24; Alexander v. Alexander, 150 Mo. 579; Steele v. Steele, 161 Mo. 566; Lynn v. Hockaday, 162 Mo. 111; McElvain v. McElvain, 171 Mo. 244.] To which, others might be added.
“When, as in this case, and in consonance with this doctrine, a court of equity is called upon to establish and enforce a contract of this character, in the teeth of the statute of wills, and of the statute of frauds and perjuries, and to set aside a disposition of valuable property made in conformity with the requirements of those statutes; there is devolved upon the chancellor the greatest responsibility, perhaps, that ever attaches to his high office. And nothing short of the inherent justice of the claim, supported by evidence that can be relied upon with the utmost confidence, proving the existence of the contract, its terms and conditions and a substantial and meritorious compliance therewith, with such certainty and definiteness as to leave no room for reasonable doubt, can ever justify the exercise of such an extraordinary prerogative.” [Kinney v. Murray, 170 Mo. l. c. 700.]
By reference to the cases cited in that opinion it will be seen that this court, whilst holding to the principle on which the plaintiff founds her case, has also held closely to the rule above stated regarding the character of the proof required, and has always refused the relief sought when the proof has not been of that kind.
We are asked in the case at bar to enforce an oral contract alleged to have been made with no witness present, by a married woman, who at the time had an only son and a husband living with her, a contract highly injurious to the expectations then of her own child, yet one into which she is alleged to have entered without apparent consultation with or regard for him, and she being now dead having left no line by will or deed recognizing such an obligation. It is because the estate of a deceased person is thus left, as it were, at
Even if the testimony given by the plaintiff’s mother had come from the lips of a competent witness, it would not have proven the contract alleged in the petition, but since it was the testimony of an incompetent witness it should be banished from our minds.
Leaving that testimony out, there is not any testimony at all tending to prove the alleged contract. The tenor of the testimony of all the plaintiff’s witnesses on this point was that Mrs. Baldwin in the last few years of her life, from time to time, had said that she intended
If Mrs. Baldwin was conscious of having made such a contract, and if she was as anxious for the plaintiff to have her property when she died <as they said she was, she would naturally have executed a deed or will' to carry out the contract, but she did nothing of the kind.
Mr. Baldwin was not a witness in the case. He doubtless knew more about it than any one else; it is natural that he should know. It was stated by the plaintiff’s counsel during the trial that Mr. Baldwin was sick and had gone out of the State a few days before for his health. His disposition towards the plaintiff in the suit was shown by his individual answer to the petition in which he admitted the truth of all its allegations. It appears also from evidence in the ease that Mr. Baldwin’s attitude towards the plaintiff is such that the services she rendered in the family and the affection she bestowed might as naturally have been rendered and bestowed with the expectation that they would be requited and reciprocated by him as by his wife.
In our judgment the plaintiff failed to prove her case.
The judgment is reversed and the cause remanded to the circuit court with directions to enter a decree for the defendants, dismissing the plaintiff’s bill.