Nute v. Fry , 344 Mo. 163 ( 1939 )

ON MOTION FOR REHEARING.^** This cause was first submitted in Division No. II. The foregoing "Per Curiam" opinion was filed in Division No. II on May 7, 1938, in connection with the overruling of the motion for rehearing in said Division. Thereafter, on December 20, 1938, and on the Court's own motion in Division No. II the cause was transferred to Court en Banc. Able counsel for appellant earnestly contend Brandenburger v. Puller, 266 Mo. 534, 540, 181 S.W. 1141, 1143, is decisive of the issue ruled. We think not; especially in view of the comment (l.c. 540 and 1142, respectively) in the Brandenburger case distinguishing Porter v. Jones, 52 Mo. 399, as being "determined upon grounds of public fraud — the trafficking in appointments of administrators, and the corrupt procuring of an appointment to an office of trust." The Brandenburger case held a petition founded upon a contract effecting a settlement between the contestants and certain proponents of a will was not against public policy and stated a cause of action. After the contestants announced in court the terms and purposes of the compromise and their desire to discontinue the action, a party proponent was permitted to plead as contestant and prosecuted the action to judgment. This court stated the rule that a contestant cannot dismiss a will contest until due proof of its execution has been made recognized the right of a contestant to compromise his own claim and that under the pleaded facts no actual fraud resulted upon other parties to the litigation who had theretofore refrained from filing suit because of the suit instituted by the compromising contestants. That case unequivocally states (l.c. 541 and 1143, respectively): "We know of no rule of public policy which requires a person to contest his ancestor's sanity, or to continue a costly suit to the depletion of his own funds and those of the estate after his own rights have been conceded and secured." With the Brandenburger case distinguishing the Porter case and not questioning its holding that contracts trafficking in the appointment to an office of trust to be void upon grounds of public fraud, it, the Brandenburger case, clearly does not rule a case involving a contract trafficking in the office of a curatorship.

Is the purchase of a private trust held in law as sacred as a public office sanctioned by the law of Missouri? Hard cases sometimes make bad law and it may be that a hardship was worked upon plaintiff; but if so, the administration of the curatorship standing unquestioned, any hardship involves only the alleged contract right. Contracts against public policy should not be ruled according to whether the purposes and objectives are meritorious or otherwise so long as the law holds such contracts void for so to do would permit the governmental functionary charged with the determination of the issue to disregard the mandate of the law and substitute his individual whim as to the meritoriousness of the objectives for the governing principle of law. We think the law announced in the Missouri cases, as well as others, mentioned in the opinion is against appellant; and appellant advances and we perceive no justifiable reason for departing therefrom.

The motion for rehearing is overruled.