Edward Bosley & Bro. v. Bosley

85 Mo. App. 424 | Mo. Ct. App. | 1900

GILL, J.

— This is a proceeding in equity wherein plaintiffs seek to enforce an agreement with their brother, the ' defendant William Bosley, for the transfer of the latter’s interest in the estate of his father. The court below denied the relief prayed and plaintiffs have appealed to this court.

The elder Bosley, father of these litigants, died in 1897, leaving six children, a pretended widow by a second marriage and a small estate which he sought to dispose of by will. The defendant Newman was appointed and qualified as executor. As to the terms of the will, it is only necessary to say that it gave to the so-called widow a large portion of the small estate (in addition to dower and the years support); to plaintiffs were given a mere nominal sum of $5 each; and the residue was left to defendant William Bosley and the three other children.

With the view of contesting the rights of the pretended widow and getting something out of the estate the plaintiffs Edward and Sylvester sought to get transfers or quitclaims from the other children. They accomplished this at least so far as to get defendant William Bosley to sign a writing purporting to transfer his interest in the estate or rather whatever he might gain by defeating the claims of the so-called widow. This assignment was in the nature of a quitclaim deed signed and sealed by said William Bosley and stated a mere nominal consideration of one dollar.

The executor of the estate contested by suit the claim of the widow under the will and succeeded in reducing it so as to add about $300 to the interest of William Bosley as residuary legatee. On a final settlement by the executor the plaintiffs demanded this share set off to said William, but as-he and the executor refused to recognize their claim this suit was brought with the result before stated.

1. At the trial below two defenses were interposed to the plaintiffs’ claim — that the so-called assignment was without consideration and that the transaction was champertous. The first objection disposes of the case, since it clearly appears that no consideration attended the so-called transfer of William Bosley to the plaintiffs. A consideration of one dollar is acknowledged, but the evidence satisfactorily shows that even this was not paid. The entire transaction is shown to have been a mere gratuitous transfer, or rather agreement to assign. The contract was executory in its nature, and it is settled law that courts of equity will not enforce such agreements except in favor of persons claiming for a valuable consideration.

2. But it is contended that defendant William Bosley is estopped to deny the want of consideration because in the written agreement to assign a seal is affixed to his signature —that this conclusively imports a consideration. Whatever .may have been the rule under the ancient common law, it is now, I think, well settled that in such proceedings as this courts of equity, at least, will go behind the seal and inquire into the matter of consideration. Winter v. Railway, 73 Mo. App. 173-195, and authorities there cited. But in addition to this our statute (R. S. 1899, sec. 893) has abolished the use of private seals in written contracts, except only as to seals of corporations, and they are of no further consequence. Whether such private seals be affixed to an instrument or not they do not “in any manner affect its force, validity or character, or in any way change the construction thereof.” R..S. 1899, sec. 893.

3. Neither have plaintiffs any claim by virtue of part performance or the expenditure of money, as intimated in the brief. They did not attempt or perform the work of setting aside the claims of the widow — this was all done by the executor and at the expense of the estate.

The judgment of the circuit court is for the right party and will be affirmed.

All concur.