Craig v. Seebecker

• Decision Date: 02 July 1938
• Docket Number: 30403
• Citation: Craig v. Seebecker, 135 Neb. 221, 280 N.W. 913 (Neb. 1938)
• Parties: NELL CRAIG ET AL., APPELLEES, v. HELEN BREEN SEEBECKER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

280 N.W. 913

135 Neb. 221

NELL CRAIG ET AL., APPELLEES, v. HELEN BREEN SEEBECKER ET AL., APPELLANTS

No. 30403

Supreme Court of Nebraska

July 2, 1938

APPEAL from the district court for Douglas county: FRANCIS M DINEEN, JUDGE.Affirmed.

AFFIRMED.

Syllabus by the Court.

1.Equity will grant specific performance of a parol contract to leave property to another, where the terms of the contract are established by evidence that is clear, convincing and satisfactory, and where it has been wholly performed by one party and its nonfulfilment would amount to a fraud on that party.

2.In such a suit for specific performance, a brother of the plaintiffs is not barred from testifying by the provisions of section 20-1202, Comp.St.1929, and is a competent witness to testify to conversations with the deceased, where it appears that he has no direct legal interest in the result of the suit.

3.A witness is not disqualified from testifying merely because he is related to the parties; such relationship to the adverse party may affect his credibility but not his competency as a witness.

4.The evidence in this case, indicated in the opinion, is held to be sufficient to establish the contract and to entitle the plaintiffs to a specific performance thereof.

Appeal from District Court, Douglas County; Dineen, Judge.

Suit by Nell Craig and Catherine Craig against Helen Breen Seebecker impleaded with Robert Craig and others, for specific performance of an oral contract allegedly made by John P. Breen, deceased, to will all his property to plaintiffs if they would remain until his death and provide him a home.From a decree in favor of the plaintiffs, Robert Craig and others appeal.

Affirmed.

D. M. Kelleher and E. F. Leary, for appellants.

James T. English, Crofoot, Fraser, Connolly & Stryker and Wear, Boland & Nye, contra.

Heard before ROSE, EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ., and KROGER, District Judge.

OPINION

CARTER, J.

This is a suit brought by the plaintiffs, Nell Craig and Catherine Craig, for specific performance of an oral contract alleged to have been made with John P. Breen, deceased, whereby Breen in his lifetime promised to will all his property to plaintiffs if they would remain in Omaha until his death and provide him a home as they had done in the past.Plaintiffs claim that they fulfilled their part of the contract, but that Breen died without making any arrangements whereby his property vested in them.The trial court granted the prayer of plaintiffs' petition and decreed them to be the owners of all the property of the deceased, John P. Breen.From this decree an appeal has been taken to this court by certain of the defendants.

The deceased, John P. Breen, was a bachelor.He practised law in the city of Omaha for more than 50 years, and at the time of his death on May 31, 1937, was 83 years of age.His estate consisted of an undivided interest in a residence property in Fort Dodge, Iowa, and personal property, principally consisting of cash on deposit in a bank, inventoried at $ 57,844.81.No will was ever found.The heirs at law of John P. Breen are two surviving sisters, Jane Brady and Mollie Breen, and three groups of nephews and nieces, the children of two deceased brothers and a deceased sister.The plaintiffs are the daughters of Ellen M. Craig, a deceased sister.

The record discloses that Ellen M. Craig and the plaintiffs lived in Omaha for many years prior to the death of John P. Breen.During that time Breen made his home with the Craigs.On December 10, 1928, Ellen M. Craig died, and it is alleged that, following her death, the plaintiffs contemplated removing to California where their brother, Robert Craig, resided.It is at this time that the alleged oral agreement was entered into between the plaintiffs and John P. Breen.The evidence is not disputed that the plaintiffs remained in Omaha, continued the same relationship with Breen that had existed up to the time of the death of Ellen M. Craig, and that such relationship continued until the death of Breen.

The record further discloses that one of the plaintiffs, Nell Craig, was a school-teacher and that she followed that profession during all the times herein mentioned.The other plaintiff, Catherine Craig, was employed at office work for some time, but, due to the condition of her health, gave up her position and assumed the active management of the home.The record shows that Breen contributed to the expense of maintaining the home, at least to the extent of paying the rent and buying the fuel.The relationship between Breen and plaintiffs was at all times very friendly and cordial.He was friendly with some of the other heirs whom he visited occasionally, while others were practically strangers to him.

Much evidence was offered by the parties on the question whether the oral contract was made as alleged.The record is long, but we feel that the following is a fair summary of the evidence on that subject:

Robert Craig, a brother of plaintiffs, testified that several days after his mother, Ellen M. Craig, passed away in December, 1928, plaintiffs were contemplating breaking up their home and going to California, but they were dissuaded from so doing by their uncle, who said they had been together too long to separate and that if they would stay and keep up the home he would leave them his property.On another occasion, Craig was visiting plaintiffs when one of them was ill.At that time he testifies that Breen told him that he was not to worry "about the girls because you know when I die they will get everything I have."

John White, a painter and decorator, who saw Breen often during several years while he was working on the Douglas county courthouse, testified to a conversation with Breen, in part as follows: "I says, 'You are lucky to have a couple daughters, and girls at home to take care of you at your old age.''They are not my daughters, they are nieces.''Gee Whiz, I thought they were your daughters all the time.''No, they are my nieces; they always kept the home for me;' and I says, 'You are sure lucky with two girls like that, never got married, and stay home and take care of you.''Well, I guess I am,'he says, 'They are sure giving me a good home, when I go they will always have a home, I will give them all I got, what I got is theirs.'"

Thomas Murray, a lawyer who was well acquainted with Breen, testified to the following conversation with him: "I think I asked him if he was still living with his nieces since the death of his sister in 1928, and he said, 'Indeed I am, I am going to live with them until the end of my life.'He said, 'They are doing a lot for me; they are carrying a considerable load, but they are going to have their reward, because whatever I have when I die they are going to have.'"

Another witness, Mrs. Azelma R. Whitacre, testified that Breen told her, in speaking of his nieces: "Well, after I am gone they will have plenty."In respect to the purchase of an automobile by one of the plaintiffs, Breen also told her: "Well, they might as well have the car now, they will get it later anyhow."

Charles E. Foster, former district judge, testified to the following conversation with Breen: "Yes, on several occasions he would talk about his home, what a nice place he had, and what a nice home he had to live in, and he says, 'My nieces keep house.'He says, 'They want to leave, but I told them I would like to have them stay,' and he said, well, he says,--I says, 'What are they staying around here for?' and he says, 'Well, that is all right,'he says, 'I will take care of them; if they stay I will see that they have a good home afterwards, and when I am gone.'"

Many other witnesses were called who testified to statements made by Breen which showed the high regard he had for these plaintiffs for what they had done for him, especially in providing him a fine home.Many of the statements indicated an intent on his part to take care of them after he was gone and to see that they were amply provided for after his death.Without any intention of unduly simplifying the facts in the record, we think the foregoing is a fair statement of the evidence adduced on the question whether a contract was made.

Appellants contend that the evidence of Robert Craig was incompetent and that the trial court erred in not excluding it.The objection to it was based on the provisions of section 20-1202, Comp. St. 1929, which in part provides: "No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness."It will be noted in the instant case that Robert Craig has no direct legal interest in the result of this litigation.In fact, if plaintiffs prevail he will lose the share of the estate to which he would be entitled as an heir.His interests, instead of being adverse to the defendants, are identical with theirs.

In Geise v. Yarter, 112 Neb. 44, 198 N.W. 359, this court said: "The question, then, is whether or not Anthony had any legal interest in the controversy between plaintiff and Bills adverse to Bills or his representative.As stated thus it seems perfectly clear that any interest which Anthony had...