Stone v. Pennock

Hall, J. The plaintiff Sophronia E. Stone, now Ostranger by marriage, presented her claim to the probate court for allowance. The claim was based on the following agreement executed by the defendant’s testator : “ Memorandum of agreement made this third day of March, 1885, between Sophronia E. Stone of the first part, and Samuel M. Bowman of the other part, all of Kansas City, Missouri, witnesseth, that the said Sophronia E. Stone hereby agrees for and in consideration of the sum hereinafter mentioned to serve the said S. M. Bowman, in capacity she now occupies as nurse for himself and to superintend his household affairs and to attend to all other matters that require her attention, for the term of three years from the twenty-third day of October, 1884. For the faithful performance of these duties, — 550 — on the part of the party of the first part, S. M. Bowman agrees to pay her the sum of two thousand dollars. It is faithfully agreed to by the parties hereto that in event of the death of the said S. M. Bowman before the expiration of the three years above stated, the further services on the part of the said Sophronia E. Stone shall cease and the two thousand dollars shall be due and payable in full. In testimony of the foregoing the parties hereby bind themselves, their heirs, executors, administrators and assigns, and have hereunto affixed their hands and seals the date above written. [Seal] “ S. M. Bowman. “ Witness present: “ D. Estaing Dickerson.” The agreement was acknowledged before the defendant Pennock, as a notary public. The deceased, a man of prominence and of considerable wealth, in amount about one hundred and fifty thousand dollars, the evidence showed was, in September, 1881, stricken with paralysis. He was a married man, but without children, and his wife was hopelessly insane. He was thus in need of that care and attention, which only a devoted wife ordinarily can give to a man, and he was without a wife able to give them. Under such circumstances he advertised for a housekeeper, and the plaintiff, a widow at that time with one child, a daughter named Daisy Stone, ■answered the advertisement, and was employed to take care of him. Her wages were at first fixed at eighteen dollars per month. In about six weeks they were raised to twenty-six dollars per month and the board of her child. The evidence showed that the plaintiff made a most faithful housekeeper and nurse for the deceased, giving to him the care and attention that no wife could have exceeded, and that mere money cannot fully compensate. The deceased fully appreciated the services thus rendered and in various ways exhibited a generous disposition to compensate the plaintiff for them as fully as — 551 — it lay in Ms power to do so. The evidence all showed, however, that in no wise did the plaintiff do anything to induce the deceased to exercise such generosity except by the faithful and devoted treatment and care towards him as his nurse and servant, and that all the deceased. did for the plaintiff or proposed to do for her, he did out of a generous impulse naturally and spontaneously arising from her devoted care. On the third day of March, 1885, the deceased voluntarily entered into the agreement in controversy. Although not asking for the agreement, and in no manner inducing it, the plaintiff accepted it, and continued to discharge her duties as housekeeper and nurse until the death of the deceased in June, 1885. After the execution of the agreement, the plaintiff received from the deceased the sum of fifty-two dollars, wages for two months’ services. The deceased conveyed to plaintiff a lot in Kansas City, which she afterwards sold for twenty-nine hundred dollars. ‘All the evidence showed that the conveyance of the lot was not made in satisfaction of the agreement in suit. Before making the agreement in suit, the deceased executed an agreement by which he contracted to give the plaintiff certain personal property. The will referred to this agreement, and,, under the provisions of the will, the defendant executor delivered the property to the plaintiff. The property was of the value of five hundred dollars. The will of the deceased gave a legacy of five hundred dollars to the plaintiff’s child, Daisy Stone; and it also gave t.o the plaintiff the sum of one thousand dollars, and the codicil added to this bequest the sum of one thousand dollars. But, by the provisions of the will, all the legacies were to be paid after the death of the - wife of the deceased. The will was dated March 17, 1885 ; the codicil, May 16, 1885. There was no evidence that the legacies given by the will were intended to satisfy the obligation imposed on the deceased by the agreement in suit, but, on the contrary, all the evidence tended to show the contrary. — 552 — The court sitting as a jury gave the following declaration of law for the plaintiff: “If the court, sitting as a jury, believes, from the evidence, that the testator, S. M. Bowman, executed the contract sued on and read in evidence, and delivered the same, or authorized the delivery of the same, to plaintiff, then Mrs. Sophronia E. Stone; that she accepted the same and performed the services therein called for under the said contract up to the time of the testator’s death, then she should recover herein the sum of two thousand dollars, less any sum of money, if any, that may have been paid her by him on account of said contract before his death, after the execution and delivery thereof.” The court gave for defendant the following declaration of law: “ 6. That if the sum of two thousand dollars mentioned in said agreement of March 3, 1885, was intended by the parties thereto as a gift, plaintiff cannot recover.” And refused to give the following; “1. That, under the admitted facts and circumstances of this case, plaintiff cannot recover.” “2. That the agreement of March 3, 1885, upon which plaintiff claims, is null and void, and plaintiff cannot recover thereon.” , “3. That in no event could the agreement of March 3, 1885, bind Bowman, as it was signed by him alone.” “4. That the sum of two thousand dollars, twenty-six dollars per month, and board of child, is an unreasonable and unconscionable charge for three months’ services such as were performed by plaintiff, and cannot be allowed for that reason.” “5. That the said agreement of March 3, 1885, is null and void, for the reason that there was no consideration for the same.” “7. That it was the purpose and object of said agreement of March 3, 1885, to give plaintiff the sum of two thousand dollars in the event of the death of said Bowman, and hence she cannot recover.” — 553 — “ 8. That under the facts and circumstances of this case the legacy amounting to two thousand dollars to plaintiff in the will of Bowman, was intended by him to take the place of two thousand dollars mentioned in the said agreement of March 3, 1885, and it was not the intention of said testator that she should get said sum of two thousand dollars twice.” ( “9. That the two thousand dollars given to plaintiff by Bowman in his will is a satisfaction of the two thousand dollars specified in the said agreement of March 3, 1885.” “ 10. The court declares the law to be that if S. M. Bowman, during the six months immediately prior to his death, was paralyzed and perfectly helpless, so much so that he had to be cared for by plaintiff, as if he were a little child, that she had to be with him constantly night and day, had to wash him, clothe him, and give him his medicines, that said Bowman had no children, and that his wife was in such a condition that she could not attend to him, and if said Bowman by the contract of employment paid her eighteen dollars per month at first, and afterwards, under a new arrangement, paid her twenty-six dollars per month and boarded her child, and that she was paid the sum of twenty-six dollars per month, and her child was furnished with board until said Bowman died, and if said Bowman, during the term of said employment, gave plaintiff a lot of ground, which she has since sold for twenty-nine hundred dollars, and that under his last will and testament plaintiff is given the sum of two thousand dollars and personal property worth five hundred dollars, and that her child is also given the sum of five hundred dollars, and that plaintiff was in no way related to the deceased, then said agreement so sued on, made two months prior to said Bowman’s death, is null and void.” Under the declarations of law the court found the amount claimed by plaintiff less the sum of fifty-two dollars. — 554 — This case was tried by the court without the intervention of a jury. For this reason we shall consider the. declarations of law given and refused only for the purpose of determining the theory on which the court tried the case. The declaration of law given for the plaintiff ignores the question of undue influence on the part of the plaintiff, by reason of the confidential-relations with the deceased, having procured the contract in suit. But, even if it be conceded that under the circumstances of this case the burden rested on the plaintiff of proving .that no such influence was used, since no declaration of law was asked on the question by the defendant and since every presumption must be made by us in favor of the action of the court, we must hold that the court ignored the question of undue influence, not on account of a mistaken view of the law, but' because of its opinion that there was under the evidence no undue influence in the case. Such opinion, we think, amply justified by the evidence. The plaintiff accepted the contract and performed the services therein called for, hence there is no merit in the objection that the plaintiff did not sign the contract. Lindell v. Rokes, 60 Mo. 247. The contract was in its liberality and generosity in the nature of a gift, but it was not for that reason a gift in law. The services, in the consideration of which the deceased made the contract, had not been rendered by the plaintiff, and she was under no legal obligation to render them ; the mere fact, that she would have rendered them without the conrpensation named in the contract, cannot prevent her from recovering that compensation when she accepted the contract and rendered the services called for by it. The fact that the entire compensation fixed by the contract was to become due and payable on the death of the deceased does not render the contract void as being against public policy. Similar contracts in this respect to the contract in suit have been upheld in this state. Eupton Eupton, 47 Mo. 37; Sutton v. Heydon, — 555 — 62 Mo. 101; Hiatt v. Williams, 72 Mo. 214. Bat this fact, i. e., that such compensation was to be payable on such death, in the absence of any evidence to the contrary, conclusively disproves the intention of the deceased to make the legacies provided in the will and the codicil satisfaction of the contract. The legacies were to be paid after the death of the wife of the deceased, and not before. These terms were less advantageous to the plaintiff than the terms on which the compensation fixed by the contract was to be paid to her ; and the rule is that, where the legacy is the same in amount as the debt, still the legacy shall not (in the absence of proof that the intention of the testator was that it should) be deemed satisfaction of the debt, if the legacy is to be paid on terms less advantageous to the creditor than the terms on which the debt is payable. 2 Rorer on Legacies [1 Am. Ed.] 38, 41, 42, 44, 45; Strong v. Williams Ex’rs, 12 Mass. 393. The judgment was, we think, for the right party, and is affirmed. All concur.