Pittman v. Pittman

110 Ky. 306 | Ky. Ct. App. | 1901

Opinion op the court by

CHIEF JUSTICE PAYNTER

Affirming

On June 28, 1899. the appellant filed^ a petition against the appellee, in which it was substantially 'averred that about twenty-three years previous, and when he was twelve years old, the appellee took him into his family to live, with an agreement that if he would become a member of his family, and labor for him, until he was twenty-one yeans old, without any compensation except food, clothing, and schooling, he (defendant) would adopt him, thus making him share in his estate with his other children, and give him a horse, 'bridle, and saddle on the arrival at age of twenty-one years; that he entered into defendant’s family, and performed services under that. agreement, and faithfully kept it, until he was about twenty-one years of age, when, by an agreement, defendant gave him the remainder of his time, on condition that he would relieve him from the promise to give him a horse, bridle, and saddle. It is further averred that the defendant represented to him that he had been adopted and made one of his heirs at law; that he would receive a share of his estate with his other children; that defendant recognized him as. his son, begotten out of wedlock; that he was ignorant of legal proceedings, and had great confidence in defendant; that he learned blurt a short time before that the defendant had' not adopted him as one of his heirs at law; that his previous statements with reference thereto were false, and were made by him for the purpose of deceiving plaintiff; that as matter of fact the defendant had never adopted him a.s his son, but had procured the Clinton County Court, without his knowledge or consent, to apprentice him. It is further averred that at the time he became a member of defendant’s family, as averred, defendant was worth $7,000 or $S,000; that he is now worth $11,000 or $12,000; that defendant has eight children; that his share of the estate, if the contract is carried out, would amount to $1,300 or $1,100; that rthe defendant now says that he shall never have anything from his estate; that the labor which he performed for him as stated, was worth $1,650; and he prays judgment therefor. To this petition a demurrer was ■sustained, and, the plaintiff refusing to plead further, it was dismissed.

If specific performance of the alleged contract could be enforced, the time has not arrived to do so. The time to demand its enforcement is upon the death of the appellee, because he never promised anything except food, raiment,, education, and horse, saddle, , and bridle, until his death. Our attention has not been called to any case of this court,, nor have we any knowledge of one having been here, involving the question here for determination. In Speers v. Sewell, 4 Bush., 239, the father made an oral contract with his son, whereby he agreed to convey to him his homestead tract of land in consideration of his living with him, attending to his business, and taking care of him and his wife during their lives. Specific performance of the contract was denied because there was no written memorial of the contract, but the court decreed that the son was entitled to compensation for the services which he rendered, and a lien on the land therefor. ' It was held in Myles’ Exrs. v. Myles, 6 Bush., 237, that by a contract to leave a legacy , as compensation for services, without any definite agreement or understanding as to the nature and amount of the legacy, no absolute obligation is- thereby created, adjudged that where one performed services in faith of a legacy, and it was clearly proven that there was an absolute promise upon such consideration to leave the party a certain and definite legacy, compensation may be recovered by the one thus performing the services. In Usher’s Exr. v. Flood, 83 Ky., 552, the same rule was announced as in Speers v. Sewell. It is urged that the statute of limitation prevents a recovery growing out of the alleged contract. Had this action been brought upon the death of the appellee, the statute would not have barred it. Myles’ Exrs. v. Myles, supra; Thomas v. Feese (Ky.) 51 S. W., 150. In our opinion, this is hot a case for the application of the statute of limitation, because the cause of action has not accrued.

Does the fact that the appellee fraudulently represented that he would make the appellant his heir at law, and thus allow him to inherit with his other 'children his estate, •and his declaration, now that he does not intend to carry out that contract, precipitate a cause of action ? We think not. The appellee might conclude to carry out the contract by making it possible, by will or otherwise, that the appellant .should take a share of his estate. If he should do that, then appellant certainly would have no cause of •action against his estate for the alleged .services or for specific perf orniance. His estate might be large or small a.t his death, no one at this time being able to tell when he might die or what he -might possess at his death. He did not agree that his estate would he of a certain value. The appellee has during his life the right to carry out his contract iwith! the appellant. If he elects not to do so, then; of •course, the appellant would have to proceed to recover from his estate the value of the services which he had performed, if he is no.t entitled to a specific performance of the contract; but we do not decide what will be his rights, if any he may have, at the death of the appellee. This right existing in appellee, t.o elect what course he will pursue with reference to the promise which he made to .appellant, prevents a cause of action from arising in favor of appellant before the death of the appellee. Therefore, if the appellant can at any time maintain an action on the alleged contract, the time has not arrived for doing so. We think the court properly sustained a demurrer to the petition. The judgment is affirmed.