Cox v. Williamson

• Decision Date: 13 February 1951
• Docket Number: No. 8977,8977
• Citation: 227 P.2d 614,124 Mont. 512
• Parties: COX v. WILLIAMSON et al.
• Court: Montana Supreme Court

Page 614

227 P.2d 614

124 Mont. 512

COX v. WILLIAMSON et al.

No. 8977.

Supreme Court of Montana.

Feb. 13, 1951.

Rehearing Denied March 2, 1951.

Wellington D. Rankin, Arthur P. Acher, Ralph J. Anderson, and Albert C. Angstman, all of Helena, for appellant.

Oscar O. Mueller and DeKalb, Dockery & Symmes, all of Lewistown, for respondent.

BOTTOMLY, Justice.

This is an appeal from a judgment of dismissal.

John W. Seiden, a long-time and highly respected resident and businessman of Lewistown, Fergus county, Montana, died in that city on November 24, 1947, leaving will dated August 27, 1947. Therein testator devised and bequeathed certain real and personal property to various beneficiaries, among them the plaintiff, Edna Cox, his housekeeper, to whom he devised and bequeathed his residence particularly described as lot 8 in block 8 of Lehman's Addition No. 2, and lots 7 and 8 in block 5 of Sunnyside Addition to the city of Lewistown, together with all the furniture, fixtures and other property belonging to and used in connection with the residence.

In her complaint plaintiff pleads: That in June 1943, she and testator entered into a certain contract whereby she was to devote her time solely and exclusively to the making of a home for testator, keeping house, cooking, mending, washing, caring for testator during illness, and looking after his general welfare and comfort as long as he should live; that on his part testator agreed with plaintiff that if she would perform such acts and duties he would pay her the sum of $50.00 per month, and that upon his death he would leave a will, leaving to her testator's residence, together with the furniture and fixtures thereunto belonging and also leave to her the sum of $5,000.00; that plaintiff accepted the terms and conditions of said contract and has fully and faithfully performed all the terms and conditions thereof on her part to be performed; that in his lifetime testator paid to plaintiff $50.00 per month and upon his death he left a will giving to plaintiff his residence, together with the furniture and fixtures thereunto belonging, but that his will failed to bequeath to plaintiff the said sum of $5000.00; that testator's estate is solvent and after all debts and costs of administration are paid, there will be property remaining therein to be distributed; that plaintiff is entitled to share in the estate as a devisee and legatee of the testator's residence and the furniture and fixtures belonging thereto, and of a cash bequest of $5,000.00, and that plaintiff is entitled to a decree so adjudging and carrying into effect the full performance of such claimed contract.

Upon the denial of defendants' general demurrer to the complaint, defendants answered denying the making of the claimed contract or agreement pleaded and alleging that in January 1941 the testator entered into an oral agreement with plaintiff, whereby plaintiff was employed by testator as a housekeeper for the agreed compensation of $50.00 per month, including board and lodging; that at a later period and during the month of August 1947 and without any agreement whatever and wholly as a matter of generosity the testator made provision in his will devising unto plaintiff the house and lot wherein testator resided, together with the furniture and fixtures therein contained. Defendants denied that by any agreement, or other arrangement whatever, at any time, or at all, was the testator to leave to plaintiff, by his will, the sum of $5,000.00, or any other sum of money whatever, and defendants further alleged that the agreement to pay the sum of $50.00 per month for plaintiff's services has been fully paid and discharged and that board and lodging was furnished plaintiff up to the time of testator's death as agreed.

Plaintiff's reply admits that plaintiff was working for testator in January 1941 under an oral agreement whereby she was to receive $50.00 per month as housekeeper plus board and lodging, and alleges that this agreement was changed and modified as alleged in her complaint; admits in August 1947 the testator made a will wherein he devised plaintiff his house and lot together with the furniture and fixtures therein, and admits plaintiff received as a part of her compensation for services rendered during her employment by testator $50.00 per month plus board and lodging.

The cause was heard by the court without a jury. Plaintiff and four other witnesses testified on her behalf. At the conclusion thereof, the court sustained defendants' objection embodying the provisions of R.C.M.1947, sec. 93-701-3, subd. 3, and entered decree as follows: 'This cause came on for trial before the court sitting without a jury on the 5th day of January, 1950, plaintiff appearing with her counsel and her witnesses and the defendants appearing with their counsel, and testimony having been received, apparently designed to lay a foundation for the testimony of plaintiff, and an objection having been made as to the competence of plaintiff to testify concerning oral conversations and direct transactions had by plaintiff with decedent, John W. Seiden, and the court having sustained the objection for the reason that no creditable foundation had been laid by the testimony of other witnesses to make it appear to the court that without the testimony of plaintiff an injustice would be done, and the plaintiff having thereupon made an offer of proof which was objected to and the objection sustained, and plaintiff having rested her case, now, on motion of the attorneys for defendants, plaintiff's complaint is hereby dismissed and defendants are awarded their costs and disbursements herein amounting to the sum of $10.50.'

From the decree plaintiff has appealed specifying as error the exclusion of her offered testimony and entering of the judgment of dismissal.

The testimony of plaintiff's first witness, Roland G. Bennecke, was substantially to the effect that he had resided in Lewistown 26 years; that he had known plaintiff for six or seven years and was very well acquainted with John W. Seiden, deceased, and had frequently visited him; that the physical condition of deceased from 1943 to the time of his death hadn't been very good and deceased was confined to his home periodically and was up and down during 1947; that deceased never discussed with witness his arrangements with Mrs. Cox; that deceased told witness that he, deceased, thought he had his affairs all arranged so that the store would go to the boys, his insurance would go perhaps to his wife's relations, and the house and contents were to go to Mrs. Cox, and $5,000.00, deceased told witness that on three different occasions; that witness visited deceased on Thursday mornings--these conversations were in October and November 1947; witness couldn't specify particular dates; no one else was present during these conversations. On cross-examination Mr. Bennecke testified to the effect that he was 73 years of age, in good health; that he spent 35 to 45 minutes with deceased at such visits; that he was there primarily to discuss fraternal matters with deceased; that decedent's mind was very bright and clear at all times; that deceased did not say how the provisions for Mrs. Cox were to be made, but that it was to go to Mrs. Cox; that deceased did not inform witness when the arrangements were made, nor about any salary or arrangements deceased had with Mrs. Cox; that deceased did not tell witness anything about any contract or agreement with Mrs. Cox; at no time did deceased mention to witness that the purported statements of deceased were pursuant to any agreement or arrangement he had with Mrs. Cox; that witness had not discussed this matter with anybody; that witness knew deceased very intimately, knew his general character, and knew that when deceased gave his word it was good; that deceased was a very truthful man and if he said anything, you could rely on it.

Maud Spurgeon testified substantially to the effect that she had lived next door to the residence of deceased since 1943; that she had known Mrs. Cox since that date; knew the kind of work she was doing and that from her experience and in her opinion the reasonable value of such services to deceased was $150.00 a month; that witness had been very intimate with Mrs. Cox over the years and one of Mrs. Cox's best friends; that she was in and out of the Seiden house and visited with Mrs. Cox nearly every day; that she had visited with deceased and he told witness that Mrs. Cox had been so faithful that he would make it well worth Mrs. Cox's while for the time she had been with him; that there was no need of a nurse's care for deceased until the last three months before his death.

Mr. T. J. Graham testified in substance that he had known deceased the last 15 years quite intimately; that he had called at the home of deceased and had performed errands for him; that at one time the last year before he passed away deceased made the remark to witness that he, deceased, was going to give Mrs. Cox the house and the furniture and some other things; witness did not know what the other things were; that Mrs. Cox was back and forth during this conversation.

Edna Cox testified in regard to her employment and as to what she did during the years from 1943 until the death of deceased; that she had done all the work about the home since 1944; that deceased was confined to his bed from October 1947 most of the time but would get up and go down to the store once or twice, and then would not get dressed for several days; then he would not do any work; he just went on some special business and back and right to bed; that she had taken care of four different sick people in Spokane, and her mother, and then went to care for Mrs. Seiden in September 1940; that Mrs. Seiden died January 14, 1941, and that she continued on in the employ of Mr. Seiden until his death November 24, 1947. The witness was then asked:

'Q. Did you...