157 S.W.2d 111 | Ky. Ct. App. | 1941
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *582 Affirming.
The appellee, Bessie Marie Hehr, has succeeded in her suit against the personal representatives and heirs of John Hehr to recover damages for breach of a written contract made for her behalf by the deceased with her mother in which he agreed, in consideration of her mother not instituting bastardy proceedings against him, that he would support and educate her, the child, and would make her "his sole heir upon his death." It was stipulated that the net estate is $65,000, and judgment was rendered for the plaintiff for that sum.
It is conceded that the plaintiff is Hehr's illegitimate child, born May 28, 1916. The grounds upon which a reversal of the judgment is sought are: (1) The court should have held that the alleged contract to make the *583 plaintiff the deceased's sole heir is against public policy and, therefore, unenforceable; (2) insufficiency of evidence to establish a contract; and (3) the admission of incompetent evidence.
1. The appellants recognize the validity, as consistent with public policy, of an agreement of a putative father with the mother of his illegitimate child that he shall receive the share of a child or other heir in the distribution of the father's estate in consideration that the mother refrain from prosecuting a bastardy proceeding. Clarke v. McFarland's Executors, 5 Dana 45,
A sufficient answer to this argument would seem to be to point to the right of every one to give away his property (the element of fraud being absent) and to bequeath the same by will, either disposition depriving a child, his own or another's, present or prospective, of the expected or potential right of inheritance. It seems *584
to us the same principle is involved whether the beneficiary of such a contract as we have here was promised all or only a part of the father's estate. Of like character is an agreement that one taking care of the promisor as long as he shall live shall receive all his estate as compensation. In either class of cases the recovery is not of the estate but damages for breach of contract, the measure of which is, ordinarily, the equivalent of the estate in money. Bowling v. Bowling's Adm'r,
Appellants rely upon Davis v. Jones, Adm'r,
The common law was so rigorous that it regarded a child born out of wedlock as nullius filius — the son of no one, having no father and no mother — and ignored its *586
existence. Mercer v. Mercer's Adm'r,
John Hehr died a bachelor. It is not necessary that we should express an opinion as to what construction should be given a contract founded upon a good and sufficient consideration to make an illegitimate child a "sole heir" in respect to cutting off the rights of a widow or legitimate children from participation in the estate. In. Winne v. Winne,
"The intestate had no children, and hence this agreement cannot be regarded as invalid upon any principle of public policy which might prevent the enforcement of an agreement which should result *587 in the exclusion of children from the estate of their parents."
The same is true in this case. We think the demurrer to the petition was properly overruled.
2. The appellee is the daughter of Miss Ida Hendrixson, who testified that she had lived across the road from John Hehr and had known him for five years before beginning to "go with him" in 1908. She did not keep company with any one else. They had planned to marry on September 5, 1915. A day or so after that date, Hehr told her his brothers had threatened him and he could not marry her. She told him it was all right, and denies having threatened a breach of promise suit. When she realized she had conceived she talked to Hebr about her condition. After the child was born, May 28, 1916, he said he could not do anything about taking care of the child because his brothers would not let him. She told him she would see a lawyer. She did confer with Mr. Daniel Durbin, an attorney in Cynthiana, who advised her to institute bastardy proceedings. Afterward Hehr came to her home and promised that he would take care of the child and "leave her every cent he had when he died." On August 17, 1916, she met him at her lawyer's office. Mr. Durbin informed Hehr that the witness was going to bring bastardy proceedings and he agreed that he would give her $1,000, maintain and educate his child, and make her his sole heir at his death if she would not do so. The attorney prepared the contract to that effect and each of the parties signed it. Miss Nettie Talbott, the lawyer's stenographer, witnessed their signatures. She was paid the $1,000 and the bastardy proceedings were never instituted. Hehr visited his child and gave her whatever she needed, whenever she needed it, and never refused her anything as long as his health permitted, which was up to about four years before his death when his "mind got off."
Miss Talbott has been dead for some time. Mr. Durbin testified to Miss Hendrixson having consulted him and as to his advice. Hehr talked with him several different times about the matter. He stated time and again that he was the father of the child and wanted to do what he could for her and that he wanted to marry the girl but his brothers threatened him "and he didn't want to take the chances." The attorney prepared a *588 written contract and it was executed as described by Miss Hendrixson. He could not recall whether it provided that the child should receive "all or a part of it." Pressed for a more definite answer, the witness declined to say which it was, except "I think she was to have all of it." Hehr gave Durbin his check for $1,200, and he gave his own for $1,000 to Miss Hendrixson, retaining $200 as his fee. He exhibited the cancelled check to the jury.
Several of Hehr's friends and neighbors testified to his statements from time to time that the appellee was his child. We notice the evidence of those who related his reference to having provided for her. A merchant in Cynthiana testified that Hehr was a regular customer and had told him about his child. Further:
"He would drink some and he would cry around about her; and he said he would like to be a real father and bring her up so remarks would not be made about her; and he said, 'Well, By God, if I died tonight everything I got goes to her because I have it fixed.' "
This was about 1925. Mrs. Della Hendren had lived across the road from Hehr. She had some children and he played with them, one of whom was a girl about the same age as Bessie Hehr. He referred to his own daughter "and was proud of her and was not ashamed of her." He said he would have married Ida Hendrixson if it had not been for his brothers. On one occasion he told the witness that he had a contract with Bessie's mother to clothe and educate her, and "he said he was going to leave to her his estate when he died." Hehr built a house on one of his farms in 1922. She asked him why he was building such a nice house for a tenant, "and he said he expected some day for his daughter to be living in it." Another neighbor, William Long, testified to Hehr's statements as to being appellee's father. One day he told him he was taking some money to her. Sometime about December, 1918, or January, 1919, at a certain place, he told the witness he and his brother George were dividing their property. He asked him:
"Johnnie, what are you going to do with your property? You never spend anything and if I was in your place I would quit this hard work and get out *589 and have a good time, and he said 'it is all fixed where my property will go to.' "
John Sosby testified that at a certain place in 1916, "He said he had had some trouble but that he had signed an agreement to clothe this child, educate her and make her his heir at his death."
John Hehr left the following will dated June 28, 1920:
"I realize if it hadent been for my Bro. George, I wouldent be worth what I am today. So I want George's children, Edine, Sugar Boy, Aggie, Boogie and Adrian to have Sixty Thousand Dollars ($60,000) more than their part of the rest of my estate after death. Want each to give Mama at least one thousand dollars, if she is still living."
Two of his brother George's sons-in-law witnessed the will.
The evidence presented in defense was by one of Hebr's nephews, who testified that about 1920 or 1921 (when witness was about eighteen years old), when his uncle John came to his home to live, he had with him a contract with Ida Hendrixson and it was thereafter kept in his father's iron safe. The witness had read the contract and it stated that it was agreed that his uncle would pay Ida Hendrixson $1,000 and she would "release him of everything," and that was all there was to it. It was signed only by Miss Hendrixson. He had seen the contract a number of times but it had been lost and he did not know where it was at the time he testified.
Mr. M.C. Swinford, Sr., testified that he had been consulted by John Hehr in 1916. Both of his brothers had first talked with him about the matter. Then the three of them came to see him together and reported that Miss Hendrixson was threatening a breach of promise suit and they wanted to get it settled. He went out to see her. She was behind the counter of her father's store when he went in. She agreed to accept $1,000 in settlement, "but her father didn't agree to anything as he was mad." The thing that impressed Mr. Swinford most, he testified, was that the father "got to cursing" and he didn't stay long. This was August 12, 1916, five days before the contract sued on was prepared. Nothing was ever said about a bastardy proceeding. The witness related a conversation with Mr. Durbin on the street *590 after a claim under the contract had been filed with Hehr's administrator, in which he referred to the contract he had prepared which he said the contract called for the payment of $1,000 to Miss Hendrixson and Hehr's agreement to clothe, educate and help take care of the child. He further stated that something had been said at the time about leaving the child Hehr's estate at his death and he had advised them all that Hehr had better leave that out and make a will.
Miss Hendrixson denied having talked with Mr. Swinford.
We think this very full recitation meets the rule which requires clear and convincing evidence of the existence and contents of such a contract, and makes it manifest that the verdict for the plaintiff is supported by the evidence.
3. The last point is that all of the foregoing evidence respecting the contents of the contract was incompetent because (a) the plaintiff had not pleaded the loss of the alleged writing which formed the basis of the action, and (b) no predicate was first laid for the introduction of oral testimony concerning the lost contract.
(a) The first argument rests upon the terms of Section 7 of the Civil Code of Practice, which provides that an action may be brought upon a written obligation which is lost without fraud on the part of the plaintiff or those under whom he claims. It is submitted that the question was raised by the demurrer to the petition and by the motion for a directed verdict. The record does not disclose any indication the point was being relied on until the argument upon the motion for a peremptory instruction was being made. The objection to the competency of the testimony as to the existence of the contract was stated at the time to be that it related to a transaction with a deceased person. That fact did not render the evidence incompetent. Stowers v. Hollis,
(b) The rule as to the admissibility of parol evidence concerning the contents of a writing is, generally speaking, that before such secondary evidence is admissible it must be satisfactorily shown that the instrument has been lost without the fault of the party desiring to prove the contents. Chilton's Adm'r v. Shelley,
It is ordinarily said that to prove the loss of a writing it must be shown that a reasonable search for it was made in places where the paper was last known to have been or that inquiry had been made of the person last known to have had it in custody. Elkhorn Land *592
Improvement Co. v. Wallace,
"This general principle of relativity, that the sufficiency of the search depends upon the circumstances of the case, is sometimes expressed in the form of a standard of diligence; the search, it is said, must appear to have been made with such diligence as was reasonable upon all the facts of the case in hand." Wigmore on Evidence, Section 1194.
We conclude the conditions surrounding the two witnesses, one or the other of whom had it in possession originally, twenty-four years ago, and all the circumstances were sufficient in the practical administration of the rule to establish loss of the contract. The evidence in this case is far different from that held in Suter v. Suter,
Perceiving no error prejudicial to the rights of appellants, the judgment is affirmed.