Dunmire v. Cool
| Citation | 237 N.W.2d 636,195 Neb. 247 |
| Decision Date | 22 January 1976 |
| Docket Number | No. 39965,39965 |
| Parties | Donald K. DUNMIRE, Appellant, v. Eugene COOL et al., Appellees. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. One who claims under an oral contract a portion of decedent's estate for services rendered has no standing to contest decedent's will in county court, and his remedy is restricted to the District Court for equitable relief.
2. Equity will grant specific performance of a parol agreement to leave property to another under an oral contract, if it is proved by evidence convincing and satisfactory, and if it has been wholly performed by one party and its non-performance would be a fraud on him.
3. Each action for specific performance or suit to impress a trust on certain property is to be determined from the facts, circumstances, and conditions presented by the evidence.
4. Communications between attorney and client made in the presence of others do not constitute privileged communications within the meaning of former sections 25--1201 and 25--1206, R.R.S.1943.
Andrew J. McMullen, Kearney, Luebs, Tracy, Dowding, Beltzer & Leininger, Grand Island, for appellant.
Robert G. Duncan, Duncan & Russell, Kansas City, Mo., Gary B. Schneider, Lincoln, for appellees.
Heard before WHITE, C.J., BOSLAUGH, McCOWN and BRODKEY, JJ., and TESAR, District Judge.
This is an original action brought by plaintiff in the District Court alleging that the decedent, Lynn B. Buchanan, promised plaintiff that he would leave him one-half of his estate for services to be performed by the plaintiff for the decedent during his lifetime. Plaintiff alleges that these services were performed by the plaintiff, and that the decedent breached his agreement by changing his will prior to his death. In the alternative, the plaintiff alleges that the defendants through fraud and undue influence encouraged the decedent to change his will to make them beneficiaries and that, thus through their acts, they were unjustly enriched.
The defendants generally denied the plaintiff's claims of the existence of an oral contract between plaintiff and decedent as to the division of decedent's property in the event of his death. The issues were tried to the court.
The District Court, at the close of plaintiff's evidence, found there was insufficient evidence to find that a contract existed between the decedent and the plaintiff and dismissed plaintiff's action. We reverse and remand for further proceedings the decision of the District Court.
All parties by their briefs filed in this court, admit that the sole issues tried in the District Court were whether there was a contract and, if there was a contract, whether plaintiff performed his duties thereunder. Initially, the plaintiff alleged undue influence and fraud to encourage the decedent to change his will as an alternative cause of action. The District Court properly found that it had no jurisdiction in an original action to determine that issue, for the original jurisdiction of that issue is in the county court. However, since plaintiff in his assignments of error asserts that the court erred in failing to find for plaintiff on those issues, which ultimately eliminated the plaintiff as a beneficiary in decedent's estate, we state, on remand of this cause, that undue influence and fraud to encourage one to change his will is not a proper issue, since the District Court's jurisdiction of these issues arises solely by appeal from the county court, which has original jurisdiction.
It is important to place the respective litigants in their proper perspective. The plaintiff, Dunmire, started renting from the Buchanans, among whom there were three bachelor brothers, in 1937 and eventually, after the death of the Buchanan parents and of two Buchanan brothers, the renting of nearly all the farmland was from Lynn B. Buchanan, whom we will now refer to as the decedent. The decedent died June 3, 1973, at the age of 79 years. Starting in 1959, after decedent's last brother died, the plaintiff started doing various and numerous services for him and it was then that the decedent executed his first will leaving the plaintiff one-half of his estate plus 80 acres. Witnesses testified to conversations, from this time forward, with the decedent in which he told them of the agreement worked out with plaintiff, all of which amply sustained plaintiff's burden of proof of the existence of an oral contract to devise property to plaintiff. These included conversations with Claire Sumstine, James Prichard, and attorneys Jess Adkins and Richard Hove. The defendant, Eugene Cool, is the decedent's second cousin, twice removed, and it was in 1960 that he began to visit the decedent's place annually. On December 1, 1970, attorney Jess Adkins destroyed the old will of decedent, and he was directed to draft a new will renaming the plaintiff to receive one-half of the estate plus 80 acres and which was identical to the original will except for change of executor. At that time Eugene Cool was to get the balance of the estate after plaintiff received his one-half plus 80 acres. In November 1971, decedent was admitted to the hospital in Kearney and later transferred to a nursing home where he remained until he passed away. In March of 1972, the decedent was brought to attorney Hove's office by defendant, Eugene Cool, and decedent's will was changed to divide the estate in thirds with plaintiff, defendant Eugene Cool, and Eugene Cool's son, Harold, as beneficiaries. On March 8, 1973, a new will was executed again, at Eugene Cool's apparent behest, wherein Eugene Cool's grandson, Michael Cool, was substituted for the plaintiff in the new will. This is the will which was admitted to probate, and which excluded the plaintiff of any share of decedent's estate.
One must realize that plaintiff has no standing in county court to contest the will of the decedent on the grounds that it violates their agreement that decedent was to make provision in his will for plaintiff's behalf pursuant to their oral contract. Anderson v. Benson, 117 F.Supp. 765; Kimmel v. Roberts, 179 Neb. 25, 136 N.W.2d 217. While it may be true that plaintiff, although not an heir-at-law, did have standing to contest decedent's last will by virtue of being a party 'concerned' under our statutes, section 30--217, R.R.S.1943, he ultimately chose not to do so. He relied on his contract, which he had a right to do, rather than to assert his claim of undue influence and fraud in the county court. His right to contest the will in county court as a party 'concerned,' of course, stems from the fact that he was a devisee under all prior wills of decedent (although not always to the extent that plaintiff contends was the contractual agreement) and the will being admitted to...
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Schutterle v. Schutterle
...confidentiality of those communications. See, e. g., Henke v. Iowa Home Mutual Casualty Co., 249 Iowa 614, 87 N.W.2d 920; Dunmire v. Cool, 195 Neb. 247, 237 N.W.2d 636; State v. Henderson, N.D., 156 N.W.2d 700; Bolyea v. First Presbyterian Church, supra; Annot. 141 A.L.R. 553; 81 Am.Jur.2d ......
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Gosmire's Estate, Matter of
...out of the ambit of the statute of frauds. Lampert Lumber Co. v. Pexa, 44 S.D. 382, 184 N.W. 207 (1921). See also, Dunmire v. Cool, 195 Neb. 247, 237 N.W.2d 636 (1976). During the fall of 1980, decedent, in anticipation of retirement, began to fulfill his ongoing agreement by first deliveri......
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Smith v. Daub, 84-074
...written contract but with regard to oral contracts as well. See, Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981); Dunmire v. Cool, 195 Neb. 247, 237 N.W.2d 636 (1976). Our review of the record convinces us that § 67-318(a) does not require an "express agreement" in order to vary the ter......
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Kinkenon v. Hue
...agreement, and their acts and conduct in light of the subject matter. 1 Corbin on Contracts, § 18 (1963). See, also, Dunmire v. Cool, 195 Neb. 247, 237 N.W.2d 636 (1976). The trial court weighed the testimony of each party and believed the testimony of appellee, appellee's daughter, and app......