Brown v. Webster

• fullCitation: Brown v. Webster, 90 Neb. 591, 134 N.W. 185 (Neb. 1912)
• Decision Date: 03 January 1912
• Citation: 134 N.W. 185,90 Neb. 591
• Docket Number: 17,203
• Parties: JENNIE E. BROWN, APPELLANT, v. ORLANDO W. WEBSTER, ADMINISTRATOR, ET AL., APPELLEES
• Court: Nebraska Supreme Court

134 N.W. 185

90 Neb. 591

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

No. 17,203

Supreme Court of Nebraska

January 3, 1912

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed.

REVERSED.

Field Ricketts & Ricketts, for appellant.

Charles O. Whedon and Perry, Lambe & Butler, contra.

FAWCETT J. ROOT, J., concurring.

OPINION

FAWCETT, J.

The petition alleges, substantially: That Erastus E. Brown, late of Lancaster county, died August 15, 1908 possessed of a large amount of real and personal property, which is specifically set out; that he left no heirs of his body and that plaintiff is his widow; that at the time of her marriage to the deceased, in 1866, deceased did not own property exceeding in value the sum of $ 1,000; that at the time of her marriage, or shortly thereafter, plaintiff received from her mother's estate about $ 20,000, all of which she turned over to deceased, who managed, controlled and invested the same in his own name as if it were his own money; that nearly all the property purchased with such funds was taken in the name of deceased, and was by him held and transferred as his own; that from time to time, as convenience suggested, an occasional piece of property was taken in the name of plaintiff, the description of which property is set out. As to one of the pieces described, it is alleged that it was sold in 1882 at a profit of $ 8,000, and the consideration paid to and used by the deceased; that another piece described was also sold and the proceeds paid to and used by deceased; that in January, 1896, plaintiff had standing in her name real property of the reasonable value of $ 40,000 or $ 50,000; that at the same time deceased owned property and securities of the value of $ 50,000 or $ 60,000; that no accounting was had at any time between plaintiff and deceased of the moneys turned over by her to deceased or of the profits and income arising from the investment thereof; that in January, 1896 (30 years after their marriage), plaintiff and her husband had no children to whom to leave their property; that at the suggestion of the deceased at that time a parol contract was entered into by and between plaintiff and deceased, by the terms of which it was agreed that the survivor should, on the death of the other, become the exclusive owner of all the property, both real and personal, that should then be owned by the one who should first depart this life, "the agreement of one being the consideration for the agreement of the other;" that at the time the deceased suggested that "a proper method to carry said agreement into effect was for each to execute a will, making the other sole devisee and legatee of all of the property of which he or she should die seized;" that, in pursuance of said agreement, the deceased caused wills to be prepared, one for himself to execute and the other to be executed by plaintiff, which wills were accordingly executed by plaintiff and deceased respectively, "each being executed in consideration of the execution of the other." A photographic copy of each of said wills is attached to the petition as a part thereof, and shows that they were both written by the same person, and, as it appears by comparison with the signature of the deceased, by the deceased himself. The will executed by deceased made plaintiff sole devisee and legatee of all of the property of which he might die seized, and that executed by plaintiff made the deceased sole devisee and legatee of all of the property of which she might die seized. The wording of the two wills is identical, except as to the change of name and sex. Both wills are signed in the presence of the same attesting witnesses. The petition further alleges that after the execution of the wills deceased caused them to be placed in an envelope and delivered to plaintiff for safe keeping; that they were placed by plaintiff in the family safe, where they remained until after the death of deceased; that in good faith and in full reliance on the agreement made and entered into by and between the parties, as above set out, "and the irrevocable character of said agreement, and of the wills executed by the respective parties in pursuance thereto, the plaintiff permitted the deceased to use and deal with the property of the plaintiff, held in her right, as hereinbefore alleged, as if it were his own property. He not only collected, invested and used, in his own name, the income arising from plaintiff's property, but, also, money received as consideration for the sale of her property, as if the same were his own money;" that in April, 1902, deceased sold the farm owned by plaintiff at the time of the agreement referred to, and received on the contract price, between the date of sale and the time of his death, the sum of $ 7,750, all of which he kept and used as his own, and had not accounted to plaintiff for any portion thereof; that he used plaintiff's residence, in which had been invested the sum of about $ 40,000, for many years as the family home without rent or compensation, while the income from his other property, as well as that from plaintiff's property, was invested in his own name, thereby increasing his holdings at the expense of plaintiff's estate; that deceased at no time intimated or notified plaintiff that he wished to modify or revoke the will which he had made in plaintiff's favor in execution of said agreement; that plaintiff in all things fully kept and performed the agreement, made between herself and deceased, as alleged, in consideration for which he agreed to make plaintiff sole devisee and legatee of all property, real and personal, of which he should die seized, if he should first decease; that the will which she executed in due form in January, 1896, making deceased her sole devisee and legatee, is still in full force and effect and unrevoked; that "as the conditions on which plaintiff was to have and receive all of the real and personal property of the said Erastus E. Brown, as her own property, have come to pass, and as the plaintiff has fully kept and performed the agreement on her part, she has become the equitable owner of all the real and personal property of which the deceased died seized. And as the deceased, before his death, committed a breach of said contract, she is in equity entitled to have the same specifically performed by his estate, and those who claim under him;" that in the latter part of July, 1908, it was arranged between plaintiff and deceased to visit friends in the state of New York; that deceased also desired to visit his three brothers in and near Angola, Indiana; that by reason of the illness of a servant in their household, which they felt rendered it unsafe to them leave her alone, it was arranged between them that deceased should proceed to Indiana and there visit his brothers, that plaintiff should remain at home until it was deemed safe to leave the servant, when she would proceed to northern Michigan and spend a few days with a friend, and then join the deceased at Angola, from whence they would proceed together to New York; that, in pursuance of said arrangement, deceased left home for Indiana on July 26, 1908; that plaintiff remained at home until August 2, 1908, when she proceeded to northern Michigan, where she remained until August 10, when she proceeded to Angola, reaching there on the evening of August 11; that on her arrival she found deceased dangerously ill from urinary trouble, with which he had been suffering for three or four days, but of which she had no notice until her arrival; that he survived until August 15, when he passed away; that on the afternoon of August 11, 1908, and before plaintiff reached the bedside of deceased, deceased executed another and different will from that made in pursuance of the agreement made with plaintiff, and by which latter will he gave plaintiff an interest for life in certain property, and gave all the rest and residue of his estate to the defendants Frank M. and Clinton M. Brown, sons of the deceased's brother, Ezekiel, and Charles W. Brown, Homer H. Brown and Laura E. Talmage, children of Warren Brown, another brother of deceased, except a small legacy of $ 1,500 to Augusta Kreitlow, a long-time servant in the house of plaintiff and deceased; that on January 26, 1911, the will of August 11, 1908, was approved and allowed in the county court of Lancaster county, Nebraska, as the last will and testament of the deceased; that no appeal has been taken from the order probating said will. A true copy of the will is attached to the petition. That by reason of the premises the defendants Brown and defendant Talmage have become vested with a legal title to all the real estate belonging to the estate of the deceased, and the right to receive on final distribution of said estate all of the personal property or its proceeds belonging to said estate, subject only to the rights of plaintiff as widow in the estate of the deceased; that from the time deceased arrived in Indiana the defendant Talmage became his daily companion, went with him from the residence of one brother to that of another, and continued to be his constant and daily companion from the time of his arrival until plaintiff reached his bedside on the evening of August 11; that at some time prior to making his will deceased gave to defendant Talmage $ 3,000 in gas bonds which he had taken with him from Lincoln, and also gave to his brother William M. Brown a note and mortgage owned by deceased of $ 1,500, to be held by him for the use and benefit of the defendants Frank M., Charles W. and Homer H. Brown; that after plaintiff's arrival at the bedside of deceased he was more or less lucid mentally, yet neither he nor...