Cox ex rel. Cox v. Beltzhoover

McBride, J., delivered the opinion of the Court. This was an action of assumpsit brought by Cox against Beltzhoover in the Circuit Court of St. Louis upon the following instrument of writing:— “I, Samuel S. Beltzhoover, hereby agree to pay the heirs of Mrs-Elizabeth Cox, by her marriage with William Cox, the sum of seven hundred and seventy-five dollars, it being the amount due them from Frederick W. Beltzhoover and assumed by me, in part consideration for a lot of ground on block seventy-six, and improvements, this day conveyed to me by said Frederick W. Beltzhoover.' St. Louis, November 12,1842.” (Signed) Samuel S. Beltzhoover.” [145] The declaration contains ten counts. In several counts, the above instrument of writing is substantially set out, and it is averred that by virtue of a decree in chancery, rendered by the Circuit Court of Cass county, in the State of Illinois, on the 22nd May, 1889, and before the said note was made, the contract of marriage then exisling between said Elizabeth and William Cox, was annulled; that at the time said note was made, the plaintiff in error was, and now is, the child and presumptive heir, and the only presumptive heir, of the said Elizabeth Cox, by her marriage with William Cox; and said defendant, in and by said note, promised the said plaintiff, by the appellátion of the heirs of Mrs. Elizabeth Cox by her marriage with William Cox, and describing her as such, to pay her, &c. To this declaration the defendant filed a general demurrer, which the court sustained and entered judgment thereon. The plaintiff brings the case here by writ of error. The principal question is, whether the contract set out is such' an one as can be enforced in a court of law, and if so, whether the declaration contains the necessary averments. The first branch of the question involves a legal construction of the word “heirs,” as used in the contract. Without pretending to examine and make an analysis of the numerous authorities which have been referred to by counsel, (for we doubt not but that there has been much subtilty of reasoning employed on the subject) we shall content ourselves with referring to a case or two which meets the question fully and decides it correctly. In 4 Conn. R., 272, second series or 9th vol., the action being on the following note:— “Greenwich, May 1, 1822. “On demand, for value received, I promise to pay unto the heirs of Jonathan Jesup, one hundred dollars, with interest till paid, as witness my hand. (Signed) Peter Lockwood.” Bisssll, J. — “The only question raised upon this motion in error regards the validity of a note of hand. The note is made payable to the heirs of Jonathan Jesup, who is admitted upon the record to have been living when the note bears date. It is averred in the declaration that the plaintiffs below were the children and presumptive heirs, and the only presumptive heirs of the said Jonathan Jesup, and that the promise contained in the note was made to them by that title and appellation. “ These averments, if well made, are admitted by the demurrer. But it is said that this contract is on the face of it so utterly void as that it [146] cannot be aided by any averments whatever; that there are no promisees to this note — no person in existence to whom it is made payable. “ This is obviously the only ground upon which the case of the plaintiff in error can be rested with the least hope of success; because, if the note be made payable to any person, although there may be an ambiguity with regard to the person intended, there is no doubt that such a defect may be supplied by averment, and parol evidence is always admissible to explain a latent ambiguity. This rule obtains universally in the construction of wills. Even a misdescription maybe corrected by averment, and a plaintiff sueing on a promissory note which purports to he payable to a person of a different name, may aver and show by evidence that he was the person intended.” 2 Starkie R., 29; 3 Stark. Ev., 1021, 3025; 10 Mass. R., 360. “ Is then the note in question void, on the ground that it mentions no promisees, and of course contains no promise ? The affirmative of this proposition rests on the legal maxim, quod nemo est haeres viventis. The accuracy of this maxim, as a general proposition, is unquestionable; and it is undoubtedly true, that to constitute a person a full and complete heir, the death of the ancestor is essential. But it is also true, that the term heir is not always used in law as denoting a person whose ancestor is dead. There are many cases where it applies though the ancestor be living, and there it means the heir apparent. In this sense it is frequently used in the statutes and in legal documents. Thus it is used in the Statute 25 Edw., 3, by which it is made treason to kill the heir of the king. In the same sense it is used in writs of ravishment of wards quarejiliam et hairedem rapuit; and there are numerous instances under wills where i the word heir has been used in the same sense. Thus, a devise to the heir of a person living has been repeatedly adjudged good, when it was manifestly the intent of the testator to designate the heir apparent.— 2 Vent, 311; 1 P. Wm, 229; 2 Black. R., 1010; 2 Desaus Ch. R., 94; 7 Bingham, 226. The word heir does not then necessarily and exvi termini import the death of the ancestor. “ It may be, and, as we have seen, often is, used to denote the heir apparent or presumptive heir of a person living; and in this sense it was undoubtedly used in the case now before us. There can indeed be no question in regard to the intention of the parties to this contract. The note is on demand, bears interest from the date, and is capable of being enforced immediately. It was not to wait the death of the ancestor, but to take immediate effect. The promise was made to persons in exist [147] ence — to persons capable of receiving and enforcing the contract. That they are also sufficiently designated, we have only to apply a very familiar and well settled principle, and that is, that in the construction of contracts, the intent of the parties is to govern. See also 1 Root, 181.” The argument in this opinion covers fully both branches of our enquiry, and maintains incontrovertibly the right of the plaintiff to maintain her action. The judgment of the Circuit Court ought therefore to be reversed, arid, the other Judges concurring, the samé is reversed, and the cause remanded.