Day v. Washburn

• Decision Date: 03 October 1911
• Citation: 81 A. 474,76 N.H. 203
• Parties: DAY v. WASHBURN et al.
• Court: New Hampshire Supreme Court

81 A. 474

76 N.H. 203

DAY

v. WASHBURN et al.

Supreme Court of New Hampshire. Grafton.

Oct. 3, 1911.

Transferred from Superior Court, Grafton County; Chamberlin, Judge.

Suit by Hattie L Day against Fred Washburn, administrator of Edgar A. Washburn, and another, praying that an instrument, proved and allowed as the last will of Orson Day, be declared null and void, and for the specific performance of a contract entered into by Orson Day and the plaintiff. Trial by the court The bill was originally brought against Fred Washburn, administrator of the estate of Edgar A. Washburn, and William Kimball, claimants under the will of Orson Day. By agreement of the parties, Wilbur F. Smith was appointed administrator with the will annexed of the estate of Orson Day, and appeared as a party defendant. The defendants demurred and answered. The demurrer was overruled, subject to exception. Case discharged.

Upon a hearing, it was found that Orson agreed with the plaintiff that he would, by his last will, give and devise to her all his estate. In order that she might have sufficient income to meet her current expenses, Orson further agreed to pay her $4 at the end of each week and a reasonable sum for necessary nursing during sickness; and in consideration of Orson's agreements, the plaintiff promised to board and care for him during his life. September 22, 1906, Orson made a will, by which he gave all his estate to the plaintiff. On the same day and as a part of the same transaction, Orson and the plaintiff signed a contract, whereby she agreed to board him during his natural life for $4 a week, and he promised to pay her that sum. The plaintiff performed the contract on her part. August 20, 1907, Orson made a will, which has been proved and allowed as his last will, by which he bequeathed to the defendant Kimball and Edgar A. Washburn personal property exceeding $2,400 in value.

The plaintiff was offered as a witness, but her testimony was excluded and not considered as to matters occurring in the lifetime of Orson. The defendants excepted to evidence of the first will, on the ground that the court had no jurisdiction to pass on its validity, and to it and other evidence, as contradicting the written contract between the parties.

Smith & Smith, Albin & Sawyer, and Charles A. Dole, for plaintiff.

Scott Sloane, for defendants.

PARSONS, C. J. Upon competent evidence, the testimony of the plaintiff having been excluded and not considered, the court has found that the deceased, Orson Day, in consideration of services to be performed by the plaintiff, agreed, among other things, to leave her all his property, by his last will, at his decease. This was a contract which the deceased had the power to make, and which, in default of performance by him, could be enforced against his administrator. Peterborough Savings Bank v. Hartshorn, 67 N. H. 156, 33 Atl. 729; Clements v. Marston, 52 N. H. 31, 39; Par-sell v. Stryker, 41 N. Y. 480, 487. The contract was performed by the plaintiff; but, by the instrument which has...