68 Ky. 625 | Ky. Ct. App. | 1869
delivered the opinion oe the court:
Involved in debt in an amount greater than the value of all his property and means of payment, Noah Smith, late of Bourbon county, on the 8th of September, 1851, conveyed his estate, real and personal, to Peter Smith, his father, and Robert Pollock, in trust for the payment of certain debts therein enumerated, one of which was to his father of about five thousand dollars, and some others, upon which his father was bound as his surety.
In January, 1852, Thos. L. Way and William Campbell, creditors of Noah Smith, filed their petition in the Bourbon circuit court against him, his trustees, and the other creditors provided for, praying for a foreclosure of the deed and a sale of the trust property for the payment of the debts secured thereby.
In July, 1852, pending that suit, Noah Smith died intestate, and administration was granted to his widow, Mrs. Nancy Smith, on his estate; and, as the personal representative of her deceased husband, she was made a defendant to the suit of Way et al. vs. Smith, &c.
On the 6th of September, 1852, a written agreement was entered into between Peter Smith and Nancy Smith, as widow and also as administratrix of Noah Smith, deceased, which was also signed by John H. Smith, a son and heir of Noah Smith, deceased, and by George W. Edwards, who had married a daughter of said decedent, to the following effect.
After referring to the deed of trust aforesaid, and the suit of Way, &c., vs. The Trustees, &c., and the objects and purposes of each, it recites, in substance, that Nancy Smith, as administratrix of Noah Smith, deceased, has, as she believes, certain claims and demands against said Peter Smith, on account of a certain partnership in the mercantile business, existing between said Peter and
“ It is further understood, that said Peter Smith shall not charge, in the form of advancement or otherwise, said tract of two hundred and twelve acres of land, as having been heretofore made to said Noah Smith in his lifetime, it being the express agreement and understanding between the parties hereto, that, on a final distribution of his estate, the said Peter Smith intends to make the aforesaid children, who represent their father, the said Noah Smith, equal in all things with his son, Lee C. Smith.
*629 “ Provision is also to be made, out of the growing crop and stock on hand, for the support and maintenance of said Nancy, as widow of said Noah Smith, for one year, according to law.
“The said John Henry Smith, son of said Noah, and George W. Edwards, who married his daughter Mary A.' S., agree to, and do hereby, surrender to said trustees all claim they may have to any property in their possession which may be named and described in said deed of trust. And said Nancy Smith, as administratrix of said Noah Smith, agrees that she will exhibit her answer to the petition of said Way and others, and pray the court for a decree at the next term of the Bourbon circuit court, and that she will, and does hereby, as administratrix aforesaid, release said Peter Smith from all claims and demands which there may be against said Peter Smith on account of the partnership existing heretofore between said Noah and himself.”
Peter Smith made and published his will on the 29th of May, 1856, lived till the early part of the year 1864, and on the 30th of March of the last named year his will was probated. In June, 1865, this suit in equity was brought by the children of Noah Smith, deceased, against Lee C. Smith, the only surviving child of said testator, and William A. Foreman, administrator with the will annexed, charging a combination between said Peter Smith, in his lifetime, with his son, the said L. C. Smith, to make such disposition of the large estate of the former as would deprive the plaintiffs in the action of the benefit of the contract made by their mother with their grandfather; that the administrator had not accounted for all the assets of his testator that had come to his hand, or
The defendants answered jointly, but traversed respectively the allegations made .against each of them, and resisted the relief sought.
On final hearing, the court below rendered judgment against Lee C. Smith for five thousand three hundred and thirty-six dollars and twenty-six cents, with legal interest from the 1st of January, 1866, till paid, and costs, from which he has appealed.
Of the various and multiplied objections taken to the judgment by the learned counsel of appellant, those will be specially noticed which seem to be most formidable.
First. It is contended that Peter Smith, by the writing relied on by appellees as the foundation of their action, was only bound to protect the two hundred and twelve acres of land to appellees, and secure the same in fee simple for their benefit; and having done that, said writing imposed no other obligation on him ; and the addition of the words, “the said Peter Smith intends to make the aforesaid children, who represent their father, Noah Smith, equal in all things to his son Lee,” was the mere expression of his feelings and purposes at that time, and explanatory of the motives which induced him to enter into the agreement with Nancy Smith.
This argument might be conclusive if the words quoted had stood isolated, or not immediately preceded by, and
Second. It is insisted that the agreement is without any valid or legal consideration to uphold it. That question we now proceed to examine.
Nancy Smith, as administratrix of Noah Smith, deceased, in consideration of said agreement of Peter Smith for the benefit of her children, released him from all claims she held against him as a partner of her husband in a mercantile establishment. The record discloses the fact that debts had been contracted by her intestate to replenish goods for that concern. A large amount of said debts were unpaid ; a portion of them were secured by the conveyance of^Noah Smith to his father and Pollock, for which, as partner, Peter Smith was bound to the holders, and as between himself and the personal representative of his deceased partner, he was liable for his proportionate part; and he was accountable for his part of the losses sustained by the firm; and it is shown there were losses. But the partnership is denied; and it is contended that the claim set up by Mrs. Smith on that account had no
But is such a case presented by this record? Or is the appellant sustained by the facts that there was no partnership between these parties? If it be admitted that the portion of the recitals in the introductory part of the instrument, as reasons for its execution, where it is stated “that Nancy Smith believes that, as administratrix of Noah Smith, she has claims against Peter Smith on account of a certain partnership in the mercantile business existing between him and said decedent,” amounted to the expression of a belief on her part that such a partnership existed, still the last paragraph of the instrument must be regarded as an express admission of a partnership having existed between them.
And there is other evidence besides the statements and admissions in the instrument aforesaid. Coppage proves that Peter Smith was a partner in the mercantile house; that he had seen the articles of partnership, and had them in his possession. Besides, in a controversy with Nancy Smith, Peter Smith set up and relied on the covenants and undertakings by him in this very instrument as a defense to the action, there alleging it is legally binding on the parties thereto. For these and other reasons wre cannot hesitate to conclude that the consideration was valid.
Third. It is contended that the contract having been made by Nancy Smith with the testator, Peter Smith, that appellees cannot maintain the action in their names.
Before the adoption of the Civil Code, the party for whose benefit a contract was made could maintain an
Finally. The last objection to ■ be noticed is, that no breach of the alleged promise and agreement has been shown, and, consequently, no judgment should have been rendered in favor of appellees.
The circuit judge charged to Lee C. Smith, as an advancement by his father, two hundred acres of land, at the price of eleven thousand three hundred and sixty dollars and forty cents. That land was put down, at that price, because the two hundred and twelve acres which were secured to appellees under the contract, cost that sum, when it was purchased first from McDaniel, and the two tracts were estimated of equal value; and he charges Lee C. Smith for the advancement of eighty-one acres and twenty-six acres three thousand seven hundred and thirty-two dollars and ten cents, being the cost of the land less the amount paid on it by appellant — •
Making the total, ----- $15,092 50
And appellees the cost of the 212 acres, at - 9,756 24
$5,336 26
Making the amount received by appellant greater than the amount received by appellees. To that mode of settlement no objection is perceived. But the question arises, was appellant properly charged with that sum?
It appears in the record that all the debts for which testator was bound, as the surety of Noah, were secured by the deed of trust. At its date he only claimed that Noah owed him five thousand dollars, all of which was secured by said deed; and also, he wms wholly unable to show, by vouchers or proof, that Noah owmd him said amount. He recovered it because it was asserted in said deed that his claims amounted to that sum. A significant fact cannot be omitted, that on the 4th of July, 1853, testator and appellant signed an agreement, in which they stipulate and agree that the partnership then existing between them entitles each to one half of all the personal property on hand at that time, consisting of stock, “ money, cash" cash notes arid accounts, not including negroes, and the partnership to continue.
On the 29th of May, 1856, the date of Peter Smith’s will, the partnership between himself and appellant had not been dissolved, and no final or full settlement had then been made; and it must be presumed noneat all had been made, as the language of the will indicates. What had become of the cash, cash notes, accounts, and stock on hand on the 4th of Jul}r, 1853, when they agreed to continue the partnership, does not appear, nor is their amount or value shown. It does, however, appear that appellant had been making money and accumulating property rapidly; and it is not shown how it was that his partner lost money. There is no evidence or intimation that he had engaged in any speculation which proved disastrous; indeed, it does not appear that he had any business different from his son’s. They were engaged in farming, rearing stock, and manufacturing whisky, and how it was that the one should make money and the other lose it, is not explained.
On the 12th of November, 1857, Peter Smith conveyed a tract of about two hundred and forty acres of land to appellant for the recited consideration of sixteen thousand eight hundred dollars, for' which a note was executed, due and payable one day after date; and although the will acknowledges an indebtedness by Peter to appellant of eight thousand dollars in the sale of the land, there is no stipulation that that debt is to be taken from the price; but appellant undertakes to pay the whole price, wait for his eight thousand dollars till the death of his father, and risk his solvency, although, according
As to the whisky on hand, the evidence is so contratradictory and unsatisfactory that it is too unsafe and uncertain to base a judgment upon. After crediting appellant by the one thousand nine hundred and seventy-eight dollars and forty cents, as directed by the circuit judge, there will remain a sufficiency in his hands to pay appellees the amount of five thousand three hundred and thirty-six dollars and twenty-six cents, adjudged to them, which is approved; and the circuit court properl y referred the cause to the master to restate the accounts, for the purpose of ascertaining whether there will be any balance after payment of debts of testator, and to divide it if there should be any.
The judgment is therefore affirmed.