ON REHEARING. The foregoing opinion, by CAVE, J., handed down on the original submission of the case, is hereby adopted by the Court, with the following additions:
It is insisted that plaintiff has legal title to the note in suit even if the decree of the Kansas Court is ignored; that she acquired such title by virtue of the "Bill of Sale and Assignment of Personal Property" mentioned in the original opinion, which constituted a family settlement. It was said in Richardson v. Cole, 372, 378, (quoting from a Pennsylvania case:) "While the mere legal title passes to the administrator, the equitable descends upon the parties entitled to distribution. If there be no creditors, the heirs have complete equity in the property, and if they chose, instead of taking letters of administration, to distribute it by arrangement made and executed among themselves, where is the principle which forbids it? The parties to such an arrangement, executed, would be forever equitably estopped from disturbing it, as amongst themselves, upon the most familiar principles of justice. . . . If there be no creditors in this case, the recovery of the value of the cattle would be only for the purpose of distribution among the heirs; but this they have done themselves, by an appropriation of the value already, and thus is accomplished what can not be done over again without breaking up the arrangement, and without manifest injustice to the defendant".
The trouble with plaintiff's contention is that the present case was not pleaded or tried upon the theory of "family settlement" or "domestic distribution". There is no allegation in the petition that that there were no debts of deceased, nor was any such issue tried (at least as to any debt other than that arising under the allegations set forth in the counterclaim.) The mention in the petition of the "Bill of Sale and Assignment of Property" was to supplement the decree of the Kansas Court which declared the various interests of plaintiff and her children, in the assets therein named, as the next of kin of Frank L. Pinet, deceased. "The Bill of Sale and Assignment of Property" was pleaded in connection with the decree for the purpose of showing that the various interests of the children, as declared in the decree, had been conveyed to plaintiff.
Plaintiff insists that the court properly instructed the jury to return a verdict in her favor on defendants' counterclaim.
The counterclaim is founded upon the following circumstances: Frank L. Pinet and the defendant Armond L. Pinet, together with Felicie E. Zehner, Grace E. Jones and Eli P. Jones were brothers and sisters and children of Frank B. Pinet, deceased, and Felicie M. Pinet, was his widow. The father, although heavily in debt, left *Page 508 several tracts of real estate situated in Pottawatomie County, Kansas. On August 25, 1936, an agreement was entered into by said persons, described therein as the heirs at law, legatees and devisees of Frank B. Pinet, deceased, concerning the latter's estate. It was provided in the agreement that certain of the real estate of deceased be conveyed to a lumber company in settlement of the debt of deceased to it; that the deceased owed Frank L. Pinet $3072.00, and that the parties convey certain of the real estate of deceased to Eli B. Pinet upon the payment by the latter of $800.00 to be credited upon said $3072.00 debt; that the parties convey to Frank L. Pinet the balance of the real estate of the father; that Felicie M. Pinet, the mother, convey all of her real estate to Frank consisting of the "Home Place" of approximately 21 acres; that Frank should sell the real estate conveyed to him, except the "Home Place" and "that from the proceeds of such sale and/or sales, after paying the necessary costs and expenses and taxes and giving credit for any and all income derived therefrom, the balance shall be applied upon the indebtedness of $2272.00 and accrued interest, and the said Frank L. Pinet and Hattie B. Pinet, his wife, agree that they will permit Felicie M. Pinet to live upon the home place and that she shall have the rents, issues and profits arising therefrom from which she shall, if the income be sufficient, pay her living expenses and taxes, and if not, the said Frank L. Pinet agrees to advance to the said Felicie M. Pinet such amount as may be necessary from time to time to pay the taxes and/or provide means for the support and comfort of the said Felicie M. Pinet during the remainder of her life, and that upon her death, the said home place shall be sold as soon as practicable at the best price obtainable, and after deducting the balance then due the said Frank L. Pinet upon the indebtedness heretofore mentioned and reimbursing him for any and all advancements which he shall have made as herein contemplated, the balance shall be divided among and paid in equal parts to Armond L. Pinet, Felicie Zehner and Grace E. Jones, share and share alike, provided however that said Armond L. Pinet and Mary Pinet, his wife, shall have paid to the said Frank L. Pinet the sum of 437.92, being the amount represented by a note, (the note in suit) dated August 1, 1936 bearing interest at the rate of 6% per annum, and if said note shall not have been paid, then and in that event, the share and part to which Armond L. Pinet is entitled shall be applied on said note and his pro rata share over and above the amount necessary to pay said note shall be paid to him".
The answer contains no plea of payment, but in the counterclaim damages are asked for an alleged failure of Frank L. Pinet to comply with the agreement; that said Pinet: "sold the said home place and failed to carry out the terms of the said contract to advance sufficient funds to support Armond L. Pinet's mother in comfort or at all; that said plaintiff also breached said contract in failing to sell the *Page 509 assets of said defendant Armond L. Pinet's father and applying the proceeds as directed in said contract as provided for in said contract; that said defendant Armond L. Pinet's interest in his father's estate and in said home place exceeded in value the sum of three thousand ($3,000.00) dollars; that said promissory note has not been as provided for in said contract nor has said defendant Armond L. Pinet received anything from his father's estate; that said plaintiff and others obtained the lands referred to in the said contract from these defendants by means of the representations and agreements therein contained; that by reason of the premises, defendants have been damaged in the sum of two thousand five hundred ($2,500.00) dollars, for which sum and costs they pray judgment".
There is no contention that the issues raised by the counterclaim are not triable in this action.
The evidence shows that the residence, on the "Home Place", was uninhabitable and was being used as a granary and that the mother is living elsewhere; that defendants were agreeable in her moving and that Frank L. Pinet supported her in his life time and that she is now being supported in a proper manner. The real estate of the father, including the "Home Place" has been sold. There is some evidence, of an indefinite character, on the part of the defendants that the property turned over to Frank L. Pinet was of a value high enough to render their part sufficient to discharge at least a part of the note in suit. Plaintiff's evidence is to the contrary and that defendants have nothing coming to them on the note.
The contract contemplated that Frank was to be under expense in handling his father's estate and defendant, A.L. Pinet, (his wife was not a witness) testified that he did not know "how much the estate of Frank P. Pinet owed the Frank L. Pinet estate. I suppose it was something". In addition to this, the burden was upon defendants to prove that the real estate of the father was not sold for "the best price obtainable", regardless of what may have been the actual value, and there is no allegation in the counterclaim that the property was not so sold. There is no evidence to indicate that defendants had anything coming to them to apply on this note in view of the actual amount that the property brought. There is no evidence of any violation of the contract relative to the support of the mother of which defendants can complain.
There was no proof that defendants have been damaged in any way by the failure to give them credit on the note for the part coming to them, if any, from the sale of the real estate. Of course, if the contract was in fact breached defendants might be entitled to nominal damages, but there is no evidence of any breach of the contract in the respects noted of which defendants can complain. The court properly directed a verdict for plaintiff on the counterclaim. *Page 510
The judgment for plaintiff on defendants' counterclaim is affirmed. The judgment in her favor on her cause of action is reversed and the cause remanded. [Franklin v. K.C. Public Service Co., 186 S.W.2d 546.]
All concur.