Brown v. Webster

• Decision Date: 16 November 1910
• Docket Number: 16,142
• Citation: 128 N.W. 635,87 Neb. 788
• Parties: JENNIE E. BROWN, APPELLANT, v. O. W. WEBSTER, SPECIAL ADMINISTRATOR, ET AL., APPELLEES
• Court: Nebraska Supreme Court

128 N.W. 635

87 Neb. 788

JENNIE E. BROWN, APPELLANT, v. O. W. WEBSTER, SPECIAL ADMINISTRATOR, ET AL., APPELLEES

No. 16,142

Supreme Court of Nebraska

November 16, 1910

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Field Ricketts & Ricketts, for appellant.

Charles O. Whedon and E. B. Perry, contra.

OPINION

LETTON, J.

This action is brought by the widow of Erastus E. Brown, deceased, against the special administrator of the decedent's estate and the devisees and legatees in a will executed by him shortly before his death. The purpose of the action is to enjoin the defendants from procuring or attempting to procure the probate of that instrument; that some of the defendants may be required to execute conveyances to plaintiff to part of the property; that the title to said real estate and to all the personal property of the estate may be quieted in the plaintiff; and the special administrator ordered to turn over to plaintiff all the property in his hands belonging to the estate. The petition, in substance, alleges that Erastus E. Brown died on the 15th of August, 1908, possessed of a large amount of real and personal property described in the petition, that he left no heirs, and that the plaintiff is his widow; that at the time of their marriage the deceased did not own property exceeding $ 1,000 in value, while the plaintiff received from her mother's estate about $ 20,000 in money, which was turned over to her husband and was managed, invested, and reinvested in his own name, and that the title to nearly all the property purchased from the proceeds was taken in his name and held and transferred as his own property; that some property was purchased in the plaintiff's name and held by her; that in January, 1896, as a result of these investments, plaintiff was the owner of real estate in her own name in the value of $ 40,000 or $ 50,000, and deceased was the owner of property of the value of $ 50,000 or $ 60,000; that at that time a parol contract was entered into between them, by which it was agreed that the survivor should, on the death of the other, become the owner of all the property that should then be owned by the one who first died; that wills were executed in accordance with this agreement, placed in an envelope, and delivered to plaintiff for safe keeping, and they were placed by her in the family safe, where they remained until after the death of the deceased; that in reliance upon this agreement the plaintiff permitted him to deal with her property as if it were his own, and to use the plaintiff's residence for years as the family home without rent, while the income from the property of both was invested in the name of deceased; that deceased at no time notified the plaintiff that he wished to modify the agreement or to revoke the will executed in pursuance thereto; that in August, 1908, while her husband was dangerously ill at the home of his brother in Indiana, where he was visiting, and before plaintiff was able to reach him, deceased is said to have made and executed another and different will giving nearly all of his property to the defendants in this suit, who are his nieces and nephews; that this instrument is now filed in the office of the county judge of Lancaster county, Nebraska, and is proposed for probate as the last will and testament of Erastus E. Brown, deceased; that she had no knowledge of the execution of this instrument until after his death; that the will she executed in pursuance of the agreement was in full force and unrevoked at the time of her husband's death, and that the breach of the contract and attempted revocation of the 1896 will is a fraud upon her rights; that the probate of the will will cast a cloud upon her title to the property constituting the estate of deceased. She therefore prays as above stated. To this petition the special administrator filed a general demurrer. All of the other heirs except Kreitlow filed both special and general demurrers. Defendant Kreitlow answered, alleging a transfer of her rights to plaintiff, and disclaimed. The district court sustained the demurrers. The plaintiff refused to plead further, and the court dismissed the action, from which judgment the plaintiff appeals.

The plaintiff argues that there were no legal obstacles preventing the deceased from making a valid obligation to leave his property to plaintiff; that the agreement was founded upon an adequate consideration; that the statute of frauds has no application; and, further, that the execution of will by each of the parties was a sufficient written memorandum of the contract, and that it was so far performed as to satisfy the statute of frauds.

The defendants say that specific performance will not lie because there is a defect of parties defendant, the action is premature, and the district court is without jurisdiction. They also contend that the alleged agreement is contrary to public policy, is within the statute of frauds, that there was no consideration, and there has been no party performance.

The question which lies at the very threshold of the case is: Can an action be maintained to enjoin the probate of a will, and also to compel the devisees named in the unprobated will to convey the property therein devised to them to plaintiff, the devisees not being the heirs at law of deceased? The petition shows that the...