Dawley v. Dawley's Estate

Scott, J. It is plain that the question of heirship is not involved in the case, except in so far as it may bear upon that of consideration. Neither is it claimed that the contract in any way constitutes a will. It is conceded by the claimant that she must recover as upon a contract or not at all. We are relieved from much discussion as to the law of the case, by the admission of counsel for the executor, in their brief, of the following legal propositions, well sustained by authority, as follows: “1. A promise to make provision by will for a valuable consideration, is a valid contract and an action will lie for its breach. • . . 2. A debt, obligation or promissory note of a decedent contracted in his lifetime, though by its terms not payable until after death, may be valid as a contract. 3. An express promise to pay a certain sum at or after the promisor’s death, if fouiided on an adequate and valuable consideration, may be enforceable after his death against his estate.” The contention of the defendant in nerror, in the language of counsel is, “the vital point, in the case at bar is, that the instrument sued on is not an obligation, a promis — 80 — sory note, or a recognition of an existing debt,” hence without consideration. The contract is explicit in that it is an agreement to pay a specific sum of money, seven hundred dollars, annually, for each and every year, for a specific time, from July 1st, 1881, to August 30th, 1906, payable in full at the death of Hannah J. Dawley. There is nothing indefinite, uncertain or conditional about this promise. Therefore, if it is supported by a sufficient consideration then the obligation is a valid claim against the estate. In order that this question may intelligently be considered, it seems proper to review the life history of the persons involved, in so far as it affects their relationship and association, in the light of the statements made in the agreement and the testimony offered at the trial. The contract relied on, dictated and written by the parties themselves, is crude in form, as would naturally be expected under such circumstances, but contains many admissions affecting the question of consideration. In 1855, D. L. Dawley and Hannah J. Dawley, husband and wife, without issue then or since, were living in the state of Vermont, and at that time and as is recited in their several wills, adopted as their own child, Edward F. Roekwood, then seven years of age, and gave to him their name, Dawley. There was admitted in evidence, over the objection of plaintiff in error, a purported agreement between Sumner Roekwood and D. L. Dawley, as follows: “This indenture entered into the 29th day of August, 1855, between Sumner Rockwood of Lawrence, Mass., & D. L. Dawley of Mount Holly, Vt. witnesseth; that said Rockwood on his part relying on the honor and good faith of said Dawley doth hereby give and bestow upon said Dawley his minor son named Edward Francis Roekwood aged seven years and doth hereby relinquish to said Dawley the sole care, custody and control of said boy during his minority — 81 — to train up manage and educate the same as if the said Edward F. was the own child of said Dawley and said Dawley on his part agrees to exercise a kind and parental care oyer said boy, to feed, clothe and educate him, to provide nursing and medicine when sick, and in all respects to do for him and by him the same as parents in .his circumstances and condition in life are expected to do by their own children. In witness whereof we have hereunto set our hands the day and year above written. (Signed) Sumner Rockwood. D. L. Dawley.” The objection to the introduction of this instrument was, that it was not properly identified. However this may be, we will treat it for the purposes of this case, as being genuine, and properly in evidence. In 1872, D. L. Dawley came to Boulder, Colorado, to take up his home. Later, and in 1877, his wife and the boy Edward joined him, and very soon thereafter the family removed to Greeley where-each continued to live until death. In 1881, D. L. Dawley died testate, and in his will made the following bequest: “I give to my adopted and beloved son, Edward Francis Dawley the sum of five hundred ($500.00) dollars to be paid to him at the age of twenty-one years with interest from the date of my decease.” In the instrument, a line is drawn through the words “One thousand dollars,” and the words “five hundred” appear to have been afterward inserted, thus corroborating the acknowledgment of Hannah J. Dawley, in the contract in question, that at the time of the making of the will, she induced her husband to reduce the amount to five hundred dollars. It also appears in her contract here, that Dawley was induced to make his bequest of one thousand dollars in the first instance, and later of five hundred dollars, only upon the promise of Hannah that at heir death, Edward F. Dawley should have all his father’s estate. — 82 — D. L. Dawley died in 1881, and presumably on the date from which the seven hundred dollar annual payments are to run, July 1st, as agreed in the contract in question. Edward continued to live with his adopted mother until the time of his marriage with the plaintiff in error, the date of which does not appear, but which was many years prior to his death. After his marriage, Edward and his wife continued to live with his mother much of the time, and when living separately, in her property, and in the same town. Edward was a confirmed invalid for several years before his death, and during the last year of his life, he and his wife lived with Hannah at her home, where he died sometime prior to the death of his adopted mother. Thus they lived in the relation of son and parents, up to the time of his own death. A period of more than fifty years had elapsed after his coming into the family before the execution of the contract now in question. Witnesses who were acquainted with the family during their life in Greeley, testify that he was always spoken of and recognized by D. L. Dawley and Hannah, as their son ; that the public generally believed him to be their child of the blood, and it appears that only to a few was it disclosed that he was their adopted son. There is no proof in the record upon which the conclusion of the trial court, that he was not the adopted son of D. L. and Hannah Dawley, can be fairly based. The executor offered no proof of record or absence of record, upon which such conclusion can be justified. ■ The agreement between D. L. Dawley and Sumner Rockwood is not shown to be the only act or proceeding in adoption. Nor is there any testimony to show that Edward was not adopted in conformity with the laws of the state of Vermont. If the agreement between Rockwood and Dawley can have force at all, it is in confirmation of the repeated and uniform declarations of both D.. L. Dawley and his wife Hannah, that Ed — 83 — ward was their adopted son. The former so declared in his will. Hannah so declared in her will, made in 1893, or thirteen years before the execution of the agreement now before us. She so declared in the present agreement. It does not therefore lie in the mouth of her executor to deny her declaration in the contract, or her uniform conduct in that regard for more than half a century, and he is estopped from so doing. The executor is in privity with the decedent. There was no apparent fraud or mistake. Edward and his wife acted upon and fully relied on the contract. The contract was never questioned by Hannah Dawley in her lifetime. She lived two years after its execution. In Casey v. Galli, 94 U. S. 673, 24 L. Ed. 168, it is said: “Parties must take the consequences of the position they assume. They are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely. Sound ethics require that the apparent, in its effects and consequences, should be as it were real, and the law properly so regards it.” To the same effect is Camp v. Byrne et al., 41 Mo. 525: “Where mother and son enter into a written contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established, that she could not read writing, and on account of the confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument, when it was read to her, afford no ground to treat it as a nullity .or to permit her to contradict its terms by parol evidence when interposed by the son as a defense to an action at law brought by her against him.” Cassilly v. Cassilly, 57 Ohio St. 582. The recitals in the contract were a substantive part of — 84 — it, and these cannot be varied or evaded by parol evidence.— Cocks v. Parker et al., 47 N. Y. 107; Frost v. Brigham; 139 Mass. 43, 29 N. E. 217; Schneider v. Turner, 130 Ill. 27, 22 N. E. 497, 6 L. R. A. 164; Indianapolis U. R. Co. v. Dearborn, 60 Fed. 880, 9 C. C. A. 296; Randolph v. Helps, 9 Colo. 29, 10 Pac. 245; Hubbard v. Mulligan, 13 Colo. App. 116, 57 Pac. 738. We must conclude then that the recital in the contract, that Edward F. Dawley, the promisor, was the adopted son of Hannah J. Dawley, cannot be disputed by oral evidence, and further, that if this were permitted, the testimony received as intended for that purpose even though competent, does not establish the contrary. . The law makes no distinction as between a child born in lawful wedlock and one adopted, as related to the question of love, and affection, being sufficient consideration for an agreement between parent and child and in this case, this consideration must be held to be sufficient of itself. Again, the contract recites that D. L. Dawley, from whom all of the estate of Hannah J. Dawley was derived, bequeathed this to her, with the exception of the small. amount to Edward, upon the consideration and promise of Hannah, that at her death the entire estate should go to Edward. Under the law this contract and promise, so affecting the will of D. L. Dawley, and upon which he relied and acted, was a sufficient consideration for the contract and promise of Hannah, involved here. But there appears to be a third and further sufficient consideration for the promise to pay. On the 30th day of August, 1906, Hannah Dawley executed to Edward and Ella Dawley what is termed a life estate deed. This was just sixteen days prior to the execution of the contract involved. This deed recites as its consideration, “love and affection,” and a “desire that the second parties may have a home during their lifetime either jointly — 85 — or singly, according as the one may survive the other.” This conveyed a lifetime estate in certain real estate including water rights. By the terms of Hannah’s will,, executed in 1893, after making certain bequests to the extent of $4,000.00, all the residue of her estate was to be converted into mortgage loans, and the income thereof and so much of the principal as may be necessary to provide him with comfort, should go to Edward as her adopted son. The will further provided that upon the death of Edward all of the estate with the exceptions stated, should go to his children if any living at the time, otherwise to certain of the devisor’s relatives. This will was executed thirteen years prior to the contract in question. There were no children and it must have been apparent to Edward at the date of the life estate deed, and of the present agreement, that in his physical condition he could not hope to live long, and it was natural that he should be anxious to provide for his wife from the estate, that he felt should properly be his, Under the promise to the father, which induced the extent of the bequest to the mother under the father’s will. Hence, the execution of the life estate deed. The contract recites that the life estate deed is not satisfactory to Edward and his wife Ella, and for this reason the settlement contained in the contract was substituted for the life estate deed, in which contract the specific sum of money was so agreed to be paid. This was also a sufficient consideration for the present contract. Whether or not this was a settlement of a valid or doubtful right, it was a sufficient foundation for the agreement. It was said in Swem v. Green, 9 Colo. 538: “It is not necessary, in the compromise of a doubtful right, that the parties have settled the controversy as the — 86 — law would have done. Fisher v. May’s Heirs, 2 Bidd. 448. It is well-settled principle of law that the compromise of a doubtful right, though it afterwards turns out that the right is on the other side, where the parties act in good faith, and with a full knowledge of the facts, is valid ahd binding! The cases announcing this doctrine generally quote approvingly the terse and logical remarks of Lord Hardwicke upon the subject, made in Stapilton v. Stapilton, 1 Atk. 10, to-wit: ‘An agreement entered into upon a supposition of a right, or of a doubtful right, though it afterwards comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties; for the right must always be on one side or the other; and therefore the compromise of a doubtful right is a sufficient foundation of an agreement.' Honeyman v. Jarvis, 79 Ill. 322; Mill’s Heirs v. Lee, 6 T. B. Mon. 97 (17 Am. Dec. 118). It is held in Curry v. Davis, 44 Ala. 281, that where a creditor and his debtor entertain doubts of the validity of the debt, and make an honest compromise of it, a note given by the debtor for the compromise sum agreed upon cannot be contested as lacking consideration. And in Scott v. Warner, 2 Lans. 49, it was said that if a disputed claim for damages be compromised, the settlement is a sufficient consideration for the note given thereon." Such settlements are especially favored by the law in case of family differences, and it is universally held that such settlements made in good faith are upon sufficient consideration. Lord Chancellor Broughman, in Clifton v. Cockburn, 10 Eng. Chan. 3, Mylne and Keen, 99, says: “It is unnecessary to cite authorities to show how strongly the Court always leans in support of family arrangements, and how reluctantly.it will disturb them. Nor is it necessary to go so far as was done in Cory v. Cory, 1 Ves. s. 19, where a compromise made under the influence — 87 — directly exerted, was held insufficient to set aside what was done under such pressure.” Decided June 7, A. D. 1915. Rehearing denied October 4, A. D. 1915. “Fair compromises, especially between members of a family, are favorably looked upon by Courts of Equity, their object being to prevent or put an end to litigation and to preserve the peace and property of families.” — Beach on Modern Equity at Sec. 1003. “Family agreements and settlements are treated with special favor by the Court of Equity, and equities are administered in regard to them which are not applied to agreements generally,, and this on the ground that the honor and peace of families make it just and proper to do so. Accordingly, it has been laid down as a general rule that a family agreement entered into upon the supposition of a right, or of a doubtful right, though it afterwards turns out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties.”— Am. & Eng. Ency. Law, 2 ed., vol. 12, p. 875. The judgment is reversed with instruction to the District Court to affirm the judgment of the County Court. Gabbert, C. J., and Garrigues, J., concur.