Bless v. Blizzard

• Decision Date: 06 January 1912
• Docket Number: 17,342
• Citation: 120 P. 351,86 Kan. 230
• Parties: GEORGE BLESS, Appellee, v. MARY BLIZZARD, Individually and as Administratrix, etc., Appellant
• Court: Kansas Supreme Court

120 P. 351

86 Kan. 230

GEORGE BLESS, Appellee, v. MARY BLIZZARD, Individually and as Administratrix, etc., Appellant

No. 17,342

Supreme Court of Kansas

January 6, 1912

Decided January, 1912.

Appeal from Sumner district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--To Make a Will--Consideration. The words "to stay with and care for," used to express the consideration of a contract to make a will, have no fixed legal signification. In the light of the situation and circumstances of the contracting parties in this case they may well indicate personal association, care and attention not including the furnishing of groceries, other necessaries and medical attention; and the parties themselves having so interpreted the contract that will be accepted as the true meaning.

2. CONTRACT--Specific Performance. Under the facts of this case a contract of the kind indicated, whereby the will if made would devise land worth $ 2300 subject to debts to the amount of $ 600, is not inequitable and will be specifically enforced although the promisor lived and enjoyed the consideration for only eighteen months.

Albert Faulconer, and W. L. Cunningham, for the appellant.

Ed. T. Hackney, W. P. Hackney, and J. T. Lafferty, for the appellee.

OPINION

BURCH, J.:

John Noel was divorced from his wife, Catherine Noel, on October 6, 1906. The farm of 160 acres on which they lived was divided between them, the woman receiving the east 80 acres on which the buildings were situated. When the divorce was granted Noel and George Bless, a nephew of Catherine Noel, who had been raised as a member of the family, went to board with one Steele. Soon afterward Noel built a small house on the west 80 acres and he and Bless went there to live. A lease was drawn up whereby Noel leased the land and his horses and farming implements to Bless for the term of one year beginning the first of the previous August. In return Bless was to pay one-fourth of the grain raised on the premises and to board and care for Noel and treat him like a father. If the lease ever were what on its face it appeared to be its terms were disregarded, and the next spring Noel leased thirty acres of the land to T. O. Roberts for corn. Noel and Bless continued to live together on the land until March 14, 1908, when Noel, being in the last stages of a fatal disease, went over to the home of his former wife, where he died on April 30. Soon after the divorce was granted, Noel made a will giving his land to Bless in return for Bless taking care of him the rest of his life. Shortly before Noel's death his daughter, Mary Blizzard, obtained possession of the will and destroyed it under circumstances indicating that her conduct lacked her father's voluntary and unconstrained approval. She was appointed administratrix of her father's estate, and in due time Bless brought an action against her to compel the specific performance of a contract by Noel to leave his land to the plaintiff in consideration of the plaintiff staying with him and caring for him as long as he should live. The plaintiff recovered and the defendant appeals.

It is said that the making of the contract alleged and its terms were not sufficiently established. It is not necessary to review the evidence. A definite contract to leave the land to Bless by will was clearly and certainly established within the rule stated in Anderson v. Anderson, 75 Kan. 117, 88 P. 743. Much of the evidence consisted of statements of Noel to his neighbors and friends concerning the arrangement. Some cases are cited to the effect that mere admissions and declarations are not enough. They need not be discussed. Noel's statements were corroborated by his will and by many circumstances.

It is said that the contract was not performed by the plaintiff. Bless was not responsible for Noel's leaving. Indeed Noel himself was probably not responsible for doing so, and the evidence is conclusive that the contract was performed with assiduity unless it be for the fact that Noel paid all the bills for groceries and other necessaries and for medical attention.

The contract, as alleged and proved, was "to stay with and care for" Noel. These terms have no fixed legal signification and the contract must be interpreted according to the usual canons. Bless was to stay with Noel and not Noel with Bless. Therefore Noel was to provide the place and the idea of maintenance and support by Bless in the broad meaning of those terms is so far excluded. In some instances to "care for" may signify nurture in the fullest sense, as when referring to a child. Applied to the situation and circumstances of Noel and Bless, however, the expression may well denote that personal care and attention of which Noel was particularly in need, as will appear hereafter. The evidence is clear that this is the meaning which was attached to the contract by both the parties, and the court, and others, can not go far wrong by accepting their interpretation.

It is said that the contract is without adequate consideration and is inequitable because of the shortness of the time during which Bless stayed with Noel and took care of him. The value of the land appears to be about $ 2300. The decedent left debts to the amount of about $ 600, so that there remains to Bless a net...