Nowack v. Berger

Sherwood, J. 1. The testimony of Frederick and Henrietta Kotwitz (at whose house Augusta Nowaek was then living with her illegitimate son, the plaintiff, then some two years old), abundantly sustains the allegations of the petition as to the nature, terms, and scope of the agreement entered into between Eberhard H. Schweer, deceased, and said Augusta. There was no evidence to the contrary, and the lower court, after findings suitable to the occasion, decreed that: “a child’s share or the one fourth part of all the estate and property of the said Eberhard H. Schweer be decreed to plaintiff, subject to the right of dower of the widow, the defendant, Augusta Schweer, in all the real and personal estate; that all the estate and property left by the said Schweer at his death is hereby declared in trust, to be distributed as follows: “That plaintiff receive the one fourth part thereof, — 36 — subject to tbe right of dower of the widow aforesaid, and that this one fourth part comprise the land on which he now resides, and which by the last will of said Schweer was given to plaintiff’s children, and the balance of all property and estate be divided as directed in the last will of said Schweer, and that for the purpose of dividing said property, contribution is hereby ordered of the defendants, Henry E. Schweer, Ered W. Schweer, and Ferdinand Schweer, in proportion to the value and amount of property respectively given to each of them in said will, and that the executor of said Eberhard H. Schweer be adjudged to pay the costs incurred in this suit out of the estate of said Eberhard H. Schweer.” Inasmuch as the circuit court did not find plaintiff entitled to specific performance of the additional contract made with plaintiff as alleged in the second count in his petition, and did not decree performance thereof; and inasmuch as he is content with, and does not appeal from, the decree, it is unnecessary to consider the correctness of the ruling which omitted to specifically perform such additional contract. But while this is true, and while plaintiff is in no position to complain, yet it is otherwise as to the minor defendants, his children. To them, the will of Schweer gave the farm on which plaintiff resided, and on which, he had thus lived for some ten years at the time of Schweer’s death. The contract made between plaintiff’s mother and Schweer, only entitled plaintiff to one fourth of whatever property, real and personal, Schweer had at the time of his death. Under such a contract, however, he was not entitled to have his share assigned in any particular portion of the property thus left. But his minor heirs were entitled to just what was devised to them by Schweer, estimated to be worth not over — 37 — $1,200. Of this right, derived from the will of Schweer, they could uot lawfully be deprived, even if the deposition of Frederick Kotwitz taken before they were made parties to the proceeding, and which tended to prove the original contract, could have been received against them. That portion of the decree which sought to deprive these minors of their rights under the will, or rather which ignored those rights altogether, is therefore erroneous, and can not be permitted to stand. As we understand the decree, although it is not entirely unambiguous, it provides, substantially, for the specific performance of the contract mentioned in the first count in plaintiff’s petition, and in so far as it does this it is correct, and incorrect only to the extent already stated. If the points to be presently passed upon, are ruled in plaintiff’s favor, a decree, however, can be entered in this court which will put matters in proper shape in reference to the rights of all concerned. 2. The ruling was proper which denied the admissibility of Augusta Nowaek as a witness. She was a party to the contract as well as to the cause of action, and by reason of this was incompetent. Wendover v. Baker, 121 Mo. 273, and cases cited; Lins v. Lenhardt, 127 Mo. 271; Chapman v. Dougherty, 87 Mo. 617; Meier v. Thieman, 90 Mo. 433; Berry v. Hartzell, 91 Mo. 132; Leach v. McFadden, 110 Mo. 584; Messimer v. McCray, 113 Mo. 382. 3. Such contracts as the one here in litigation, in so far as they relate to the adoption of a child and making him an heir, etc., have often been recognized and enforced in this state and elsewhere. Sutton v. Hayden, 62 Mo. 101; Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sharkey v. McDermott, 91 Mo. 647; West v. Bundy, 78 Mo. 407; Anderson v. Shockley, 82 Mo. 250; Leach v. McFadden, 110 Mo. — 38 — 584; Healey v. Simpson, 113 Mo. 340; Teats v. Flanders, 118 Mo. 669. 4. It thus comes to be considered whether the contract now under consideration, owing to the peculiar circumstances attendant on its making, will prevent that feature of it mentioned in the nest preceding paragraph from being specifically performed. It is urged here, as in the court below, that .the cpntract between Augusta Nowaek and Eberhard H. Schweer being made “in consideration of marriage”. and not being in writing, is void' by reason of the •provisions of section 5186, Revised Statutes, 1889; .but this is an erroneous view of that section, because it does not make a contract in consideration of marriage void, but merely prohibits any action from being brought thereon, unless such contract “shall be in writing,” etc. 1-Bishop, Mar. "Worn., sec. 807. There have been in England and in this country many decisions on the statute in question, involving the point now in litigation; but it seems to be settled by the weight of authority that though a parol ante-nuptial contract is invalid when made solely in consideration of marriage, yet that such contract can stand, if in addition to the marital portion thereof it has another feature, the performance of which may be reckoned part performance, and thus prevent defeat of the antenuptial agreement because of not being in writing; provided there was reliance on the promise which is made the basis for specific relief. Taylor v. Beech, 1 Ves. Sr. 297; Ungley v. Ungley, L. R. 4 Ch. Div. 73; Browne, Stat. Fr. [5 Ed.], secs. 217 and 459a, and cases cited; Fry, Spec. Perf. [3 Ed.], sec. 595; 2 Parsons, Cont. [7 Ed.], 77, and cases cited; Agnew, Stat. Fr., p. 124; Dygert v. Remerschnider, 32 N. Y. 629; Riley v. Riley, 25 Conn. 154; 1 Bishop, — 39 — Mar. Wom., sec. 807; Throop, Valid. Verb. Agreements, sec. 708. Here, Schweer, upon marriage to Augusta Nowack, would not have been entitled to the custody, service, and earnings of plaintiff, but for the latter being surrendered to Schweer by his mother in furtherance of the parol agreement to that effect. Schouler, Dom. Rel. [5 Ed.], sec. 273. This agreement being proved as aforesaid, and it having been also complied with, as shown by the testimony, on the part of plaintiff, supplies such independent, additional, and valuable consideration as will, under the authorities cited, amount to part performance and take this case out of the purview and operation of the statute of frauds. Although there is testimony that plaintiff, while about seventeen years old, on one occasion struck his stepfather with a stovelid lifter on the head, yet great provocation is shown for this in that Schweer had called plaintiff’s mother a prostitute. Evidently Schweer did not regard plaintiff a very undutiful or bad boy, or else his conduct some three years thereafter in promoting the marriage of plaintiff with Bartlett’s daughter was very reprehensible conduct. 5. But the agreement between the parties may be looked at from an entirely different point of view. On all hands it stands confessed that marriage is a valuable consideration. Lord Coke says: “If a man had given land to a man with his daughter in frankmarriage generally, a fee simple had passed without this word (heirs); for there is no consideration so much respected in law as the consideration óf marriage, in respect of alliance and posterity.” Co. Lit., 9b. Elsewhere it is said: “Marriage is the highest consideration known in law.” Johnston v. Dilliard, 1 Bay, 232. See, also, 4 Kent, Com. 465; 1 Bishop, Mar. Wom., — 40 — secs. 27, 775; Ford v. Stuart, 15 Beav. 499; Greene v. Cramer, 2 Con. & Law. 60; Fraser v. Thompson, 1 Giff. 62. Marriage is regarded as one of the strongest considerations in the law, either to raise a use, found a contract, gift or grant. Holder v. Dickeson, Freeman, 96; Smith v. Stafford, Hob. 216a; Waters v. Howard, 8 Grill, 262. In a case which arose in Maryland it was held that an agreement made by a father with his daughter in consideration of her marriage, and by way of advancement and marriage endowment, consummated by marriage as then contemplated, could not be revoked by the father, Martin, J., saying that the daughter was regarded as a purchaser, as much so as if she had paid for the property an adequate pecuniary consideration, and that the consummation of the marriage was to be considered as the payment of the purchase money. Dugan v. Gittings, 3 Grill, 138. A similar ruling was made where' a father promised a man about to marry his daughter, that on the marriage he would give him a sum of money, and the marriage having occurred, the father was compelled specifically to perform his promise. Chichester’s Ex’x v. Vass’s Adm’r, 1 Munf. 98. Tet notwithstanding this, it is ruled that as between the parties to the wedlock, the celebration of the marriage is not such part performance as to to take it out of the statute. 2 Parsons, Cont. [7 Ed.] *72; Fry, Spec. Perf. [3 Ed.], sec. 593. Commenting on this anomaly in equity jurisprudence, Judge Story says: “The subsequent marriage is not deemed a part performance taking the case out of the statute, contrary to the rule which prevails in other cases of contract. In this respect it is always treated as a peculiar case standing on its own grounds. ” 2 Eq. Jur. [13 Ed.], sec. 768. See, also, note to sec. — 41 — 720, Throop, Valid. Verb. Agreements, and eases cited, among them Durham v. Taylor, 29 Gra. 166. “But though marriage be not, cohabitation may be ■ a sufficient act of part performance. In a separation deed, the husband covenanted with a trustee for the payment of an annuity to his wife; shortly before .'the death of the husband, his wife returned to him upon the faith of a promise made by the husband to the wife and her trustee, that if she would do so he would con- ' tinue to pay the annuity and would charge it upon his real estate. He died without having done so, and it was held that the contract could be enforced against the devisees of the husband, on the ground of part performance.” Webster v. Webster, 1 Sm. & G. 469, affirmed, 4 DeG. M. & G. 437; Fry, Spec. Perf., sec. 597. This divergence between marriage and other valuable considerations in respect to the doctrine of part performance, caused Vice Chancellor Malins to express his regret that such an exception was ever made. Ungley v. Ungley, L. R. 4 Ch. Div. 73; Coles v. Pilkington, L. R. 19 Eq. 174. In a case which came to the house of lords, where the old rule that marriage was not part performance was in terms (though unnecessarily) reasserted, Lord Oottenham very forcibly presented the equitable ground for the contraiy opinion, remarking: “The principle of law, at least of equity, is this — that if a party holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other party consents, and celebrates the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a court of equity will take care that he is not disappointed, and will give effect to the proposal.” Ham — 42 — mersley v. Baron de Biel, 12 Cl. &. Fin. 45, loc cit. 78, 79. The true basis of specific performance being enforced is that unless enforced it would operate a fraud on the party who seeks its enforcement, it being impossible to restore such party to his statu quo. Browne, Stat. Er., secs. 448, 487, and cases cited; 2 Story, Eq. Jur., sec. 761, and cases cited. “The fraud,” says Judge Wells in Glass v. Hulblert, “most commonly treated as taking an agreement out of the statute of frauds is that which consists in setting up the statute against its performance, after the other party has been induced to make expenditures, or a change of situation in-regard to the subject-matter of the agreement, or upon the supposition that it was to be carried into execution, and the assumption of rights thereby to be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injury and loss.” Glass v. Hulbert, 102 Mass. 35. Now it would seem that marriage being such a valuable consideration, its celebration in conformity to previous parol promise made, placing, especially, as it does, the female contracting party in a situation where she can not be restored to her former condition, ought to be regarded as such an heinous fraud upon her, if such parol promise be not performed, as a court of conscience should not tolerate; but acting on principle rather than precedent, should decree the complete enforcement of such agreement, notwithstanding the statute. This is what courts of equity are doing in other cases, every day, despite the statute, and no sound reason can be urged why a court of equity should grant relief in the latter class of cases and refuse it in the former. Indeed, more cogent reasons appear to — 43 — exist in favor of disregarding the statute in instances like the present, than in ordinary cases. This view of the matter is also entertained by the learned author heretofore cited. Browne, Stat. Fr., sec. 459. Instances are by no means infrequent -where contracts between husband and wife entered into before marriage will be enforced in equity, although they should be avoided at law; ‘ Tor equity will not suffer the intention of the parties to be defeated by the very act which is designed to give effect to such a contract.” 2 Story, Eq, Jur.,'sec. 1370, and cases cited. 6. For these reasons, inasmuch as we are not hampered by former rulings in this court on this point, we hold that marriage in the circumstances disclosed by the record, does amount to a valuable consideration, and part performance, and that plaintiff having done on his part all that it was contracted by his mother he should do, the contract made by his mother for herself and for him having been fully executed on their parts, this constitutes of itself a distinct and independent reason why the statute should not be allowed to obstruct the pathway to the relief plaintiff seeks. 7. The premises considered, a decree will be entered in this court in favor of plaintiff in accordance with the facts found by the lower court, giving to him one fourth of all the real and personal estate left by Eberhard H. Schweer, and requiring contribution on the part of the three sons of Schweer; but this will be done subject, of course, to the rights of the widow as directed by the will. And, further, the decree must accord to the minor heirs of plaintiff what the will has directed should be theirs; but of course the devise to them can not be permitted to diminish what plaintiff became entitled to under the agreement made by his mother with Schweer. Plaintiff will take in value, in real and personal prop — 44 — erty, precisely what he would have taken had his children not been mentioned in the will, to wit: The one fourth part in value of all real and personal property of which Schweer died seized. Inasmuch, however, as those heirs have been compelled to come to this court in order to secure their rights, the costs of this appeal as between them and their father, will be taxed against him. All concur.