Ellis v. Estate of Wooley

701 S.W.2d 440, 1985 Mo. App. LEXIS 3637
CourtMissouri Court of Appeals
DecidedJuly 16, 1985
DocketNo. WD 36087
StatusPublished
Cited by2 cases

This text of 701 S.W.2d 440 (Ellis v. Estate of Wooley) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Estate of Wooley, 701 S.W.2d 440, 1985 Mo. App. LEXIS 3637 (Mo. Ct. App. 1985).

Opinions

CLARK, Presiding Judge.

This appeal is from a decree which ordered appellant executor specifically to perform an agreement made by appellant’s decedent with respondents to discount the balance payable under a real estate mortgage note. The issue is whether the unperformed contract of the decedent is specifically enforceable against the estate and the personal representative under the provisions of § 473.303, RSMo.Supp.1984.1 We conclude it was not and therefore reverse.

There is no dispute as to the facts. The note in question was given in 1981 in a real estate transaction and was payable to the deceased, Mae Kathryn Wooley, and Madeline Bauer McCabe, her daughter. It was in the principal amount of $65,000.00 and was secured by a deed of trust on the property sold, real estate located in Texas. Repayment was by 59 monthly installments of $744.52, including interest at 13V2%, and [442]*442a lump sum or “balloon” payment due on the 60th month.

In 1982, respondents acquired the property from the original purchasers and assumed the obligation of the note. Some months later, respondents and Mrs. Wooley discussed an accelerated retirement of the debt for cash. The discussion culminated in a letter sent by Mrs. Wooley to Mr. Ellis on May 19, 1983. In the letter Mrs. Woo-ley offered to sell the note for $65,000.00. At that time, the unpaid principal balance was $64,752.14. Respondents agreed and arranged an escrow with a title insurance company in Texas to handle the payment and assignment of the note.

Madeline McCabe was not a party to the discussions between her mother and respondents and, so far as this record shows, she was unaware Mrs. Wooley had proposed to discount the note by some $10,-000.00 in return for an immediate cash payment. For their part, however, Mrs. Wooley and respondents recognized that the transaction depended on obtaining a release from Mrs. McCabe. The Texas title company engaged by respondents included the requirement of a release from Mrs. McCabe in the instructions they sent to Mrs. Wooley.

For some months before the transaction with respondents was first proposed, Mrs. Wooley had been attempting to persuade her daughter to assign the interest Mrs. McCabe held in the note to Mrs. Wooley, but without success. During the time relevant to this suit, Mrs. McCabe lived in Virginia and Mrs. Wooley lived in Missouri. At some time early in 1988 or before, Mrs. Wooley consulted an attorney about obtaining a release of her daughter’s interest in the note. In February, 1983, the attorney wrote Mrs. McCabe requesting that she sign and return an “Assignment and Endorsement” the attorney had prepared setting over to Mrs. Wooley all title to and interest in the note. Mrs. McCabe either ignored the request or told her mother she was unwilling to release the note. The next communication shown in this record is a letter Mrs. Wooley sent Mrs. McCabe June 16, 1983 in which she protested her daughter’s failure to sign the assignment enclosed with the attorney’s letter of the previous February and threatened suit.

Mrs. Wooley died five days later on June 21 without having received the release or assignment from Mrs. McCabe and without having endorsed the note or executed any documents to comply with the instructions by the Texas title company. As of the date of Mrs. Wooley’s death respondents had not deposited any money with the title company to perform their part of the agreement and, as later developments disclosed, respondents did not themselves have the funds with which to make the $55,000.00 payment.

Documentary evidence in the case suggests that Mrs. McCabe was not aware on June 21, 1983, or for some days thereafter, that her mother had died. On June 23, 1983, Madeline sent a letter to Mrs. Wooley enclosing the signed assignment form which had been supplied by the attorney the previous February. The letter expressed Mrs. McCabe’s concern over “many phone calls and threatening letters”, her opinion that nothing could have been done in court and she wished her mother good luck. That letter with the assignment apparently reached appellant executor in due course at some time within the week following Mrs. Wooley’s death.

In the point dispositive of the case, appellant contends the decree for specific performance was in error because the exec-utory agreement to discount the note could not have been enforced against Mrs. Woo-ley on or prior to the date of her death. Although respondents could conceivably have asserted some claim against Mrs. Wooley for loss of the agreed bargain, appellant says the available relief was not by specific performance because without the concurrence of the co-payee, Mrs. McCabe, Mrs. Wooley was incapable of satisfying the condition of the agreement to assign and release the note. Respondents counter by pointing out that the obstacle was removed when the assignment by Mrs. [443]*443McCabe was delivered, albeit some days after Mrs. Wooley had died.

Even though it may be that the delivery postmortem of the McCabe assignment gave appellant the capacity to perform, it is the enforceability of the contract in equity against the decedent by which respondents’ suit under § 473.303, RSMo.Supp.1984 must be measured. We therefore turn next to an analysis of the contract status and rights as they existed between the parties on June 21, 1983.

For purposes here, we reject appellant’s argument that the discussions recited earlier between Mrs. Wooley and Mr. Ellis did not progress beyond an offer and counter offer stage. The consequence of those discussions was a bilateral contract, a promise for a promise. Respondents agreed that if the note were assigned and released, they would pay $55,000.00. Mrs. Wooley promised that if the money were paid, she would assign and release the note. These promises were, however, subject to the condition that Mrs. Wooley procure from Madeline McCabe the assignment of her interest in the note. Had Mrs. McCabe persisted in her refusal to assign her interest in the note, the agreement would not have been specifically enforceable by respondents against Mrs. Wooley because Mrs. Wooley was incapable of transferring full ownership of the debt.

Mrs. Wooley was fully aware of her inability to perform the agreement with respondents until she could persuade her daughter to release the note. This awareness is demonstrated by Mrs. Wooley’s repeated demands and later threats to her daughter and the fact that Mrs. Wooley made no attempt to perform herself so long as she did not have ownership of the full interest in the note. Although respondents may not have been informed concerning the exchanges between Mrs. Wooley and Mrs. McCabe and did not know of the hostility on the subject, they did condition payment of the agreed sum on releases and assignments executed by both note payees. Until that assignment vested Mrs. Wooley with full ownership of the note, she could not specifically perform the undertaking to sell respondents the note nor would a judgment for specific performance have been of any practical effect.

Respondents contend, and the trial court apparently assumed, that the ultimate delivery of the McCabe assignment to appellant validated Mrs. Wooley’s earlier agreement which then ripened into a specifically enforceable obligation. The difficulty with that argument is respondents based their cause of action on the limited foundation of § 473.303, RSMo.Supp.1984. That statute serves only to give authority for recovery of judgment on a contract specifically enforceable against the decedent lacking only the execution by the decedent.

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Bluebook (online)
701 S.W.2d 440, 1985 Mo. App. LEXIS 3637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-estate-of-wooley-moctapp-1985.