Goodin v. Casselman

• Decision Date: 15 September 1924
• Parties: GOODIN v. CASSELMAN et al.
• Court: North Dakota Supreme Court

51 N.D. 543

200 N.W. 94

GOODIN

v.CASSELMAN et al.

Supreme Court of North Dakota.

July 18, 1924.

Rehearing Denied Sept. 15, 1924.

Syllabus by the Court.

One M. C., an aged and enfeebled person, and G. had lived together for more than six years. They entered into a contract whereby the latter agreed to support the former in consideration of a promise on the part of the former to leave to him her property by will. A will to that effect was concurrently executed. M. C. went immediately to a hospital for treatment, and soon thereafter was removed to the home of a friend, where she died. While at the latter place she made another will, in which this friend was the chief beneficiary, and after her death the later will was admitted to probate over objections of the beneficiary under the first will and of the heirs of M. C. It is held:

The jurisdiction of the probate court does not extend to the determination of the rights in property left by a deceased, where such right does not depend upon heirship or will, but upon contract.

The district court, being a court of general jurisdiction, has original jurisdiction to determine property rights based upon contract.

Where a will is made pursuant to a contract for support, in which the party to furnish the support is made the beneficiary, and where such party had entered upon the performance in the manner contemplated, and has not repudiated or broken his obligations, the will may not be revoked so as to deprive him of his contract rights.

Certain evidence tending to establish the inability of G. to perform his obligations under the contract, but which does not establish a breach was properly excluded.

Bronson, C. J., and Christianson, J., dissenting.

Appeal from District Court, Emmons County; Frank P. Allen, Judge.

Action by Joseph Goodin against Ella O. Casselman and others. From a judgment for plaintiff, defendants appeal. Affirmed.

F. H. Register, Zuger & Tillotson, and E. T. Burke, all of Bismarck, and Lynn & Lynn, of Linton, for appellants.

Scott Cameron, of Bismarck, and A. B. Atkins, of Napoleon, for respondent.

BIRDZELL, J.

This is an action to determine adverse claims and is here for trial de novo. It arises out of the following facts: Prior to the 16th day of September, 1921, Mary Cole and Joseph Goodin resided in Braddock, N. D. Mary Cole was an aged woman of some means, having a house and some personal property in Braddock and a considerable amount of real estate in the vicinity; Goodin was a single man in middle life. For some six or seven years Goodin had lived with Mary Cole, apparently doing odd jobs for her and occasionally working for other people. He ministered to the personal wants of Mary Cole at such times as she would need assistance on account of illness or her enfeebled condition. Prior to or on the 16th of September, 1921, one De France prepared a certain contract between Mary Cole and Joseph Goodin and likewise a purported will, and on that day he, at the request of Goodin, took the proposed contract and will to the house of Mary Cole. There were also present in the house at the time, E. F. Savage, the village postmaster, and one Sempel, who had been called there by Goodin. De France read the papers to Mary Cole. Then she asked Savage to read them, and as he was reading the contract, she interrupted him with the statement, in substance, that she wouldn't sign them then. There were some further remarks to the effect that she had given Goodin an automobile; that he had worn it out; that he would be, or had been, paid for what he had done for her; and that there were some other people to whom she desired to make some presents. There were no papers executed at that time. They were left on the table and were picked up by Goodin. Mary Cole was intending to go to a hospital for treatment, and plans had been made for her and Goodin to go to Bismarck that day for such purpose. It was nearing train time when the persons who had come to witness the contract and will left the house. Goodin borrowed $10 on Mary Cole's credit to pay the expenses of the trip. After boarding the train, and when they were about seven miles out of Braddock, Goodin informed one Atkins, a lawyer who was riding in the same coach, that Mary Cole desired to see him; whereupon he went to the seat occupied by Mary Cole and talked with her concerning the business which she proposed. She had him look over the papers that Goodin had brought along, and he explained to her their legal effect. Atkins asked her why she had not signed the papers in Braddock, and she answered that there were too many around that she didn't want to know her business. When she indicated a desire to sign them Atkins called another witness, and the papers were executed on the train. Following are the papers:

“This agreement, made this 16th day of September, 1921, by and between Mary Cole, Braddock, N. D., and Joseph Goodin, Braddock, N. D., witnesseth: That the said party of the first part, in consideration of the promises and agreements hereinafter mentioned, on the part of the party of the second part, to be kept, done, and performed, does hereby agree to convey by her last will and testament, unto the said party of the second part, his heirs or assigns, all the following described real and personal property situated in Emmons and Burleigh counties: South one-half of section (14), in township one hundred thirty-six (136), range seventy-five (75), containing three hundred twenty acres more or less, Emmons county, North Dakota. Lots (8) eight, (9) nine, and (10) of block (2) two, also the east (30) thirty feet and the west (110) one hundred ten feet of lots (11) eleven and (12) twelve of block (2) two of the village of Braddock, Emmons county, North Dakota. Part of outlet A in the southeast (S. E. 1/4) quarter and part of outlet E in the (S. E. 1/4) all in section (27), township (136) one hundred thirty-six, range (75) Emmons county, North Dakota. South east one-quarter (S. E. 1/4) of section (20) twenty, township one hundred thirty-eight (138), range seventy-eight (78), containing one hundred sixty acres more or less, Burleigh county, North Dakota. Personal property situated in the county of Emmons, North Dakota, as follows: Five (5) head of horses; one Ford touring car; one wagon; one disc.

In consideration of which the party of the second part agrees to provide and care for the said party of the first part during the remainder of her natural life, also agreeing that all right and title to property described shall be and remain in the party of the first part. The said party of the second part further agrees to assume any and all debts, obligations of the said party of the first part, and in the event of his receiving title to property described, to fully pay and satisfy the same.

It is further agreed that the said party of the first part shall cause to be executed her last will and testament, in accordance with agreement hereinbefore written.

In testimony whereof, both parties have hereunto set their hands and seals this 16th day of September, A. D. 1921. Mary Cole.

Joe Goodin.

Signed, sealed, and delivered in the presence of

Arthur B. Atkins.

A. B. Currier.

State of North Dakota, County of Burleigh-ss.:

On this 16th day of September, A. D. 1921, before the undersigned, a notary public within and for said county, personally appeared Mary Cole and Joseph Goodin known to me to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their own free act and deed. Arthur B. Atkins,

Notary Public, North Dakota.

My commission expires July 26, 1927.”

Last Will.

“I, Mary Cole of the village of Braddock in the county of Emmons and state of North Dakota of the age of eighty-three years, and being of sound mind and memory, do hereby make, publish and declare this my last will and testament, in manner following, that is to say:

First-It is my will that my funeral expenses and all my just debts be fully paid.

Second-I give and bequeath to Joseph Goodin of the county of Emmons, state of North Dakota, the following described real and personal property, to wit: South one-half of section (14) fourteen, in township one hundred thirty-six (136), range seventy-five (75). Lots (8) eight, (9) nine, (10) ten, also the east thirty (30) feet and west one hundred ten feet (110) of lots (11) eleven and (12) twelve, in block (2) two in the village of Braddock, Emmons county, North Dakota. Part of outlet A in the southeast quarter (S. E. 1/4), and part of outlet E in the southeast quarter all in section (27) twenty-seven, township one hundred thirty-six (136), of range seventy-five (75), Emmons county, North Dakota. Southeast one quarter (S. E. 1/4) of section (20) twenty, township one hundred thirty-eight (138), range seventy-eight (78), Burleigh county, North Dakota. All my personal property now situated in Emmons county, North Dakota. Notes as follows: L. P. Weber $260.00, Fred Nichols $100.00, Wm. Koenig $100.00, W. S. Casselman $160.00, A. N. Ellingson $25.00.

Lastly-I hereby nominate and appoint H. O. Batzer, Hazelton, N. D., to be the executor of this my last will and testament, hereby revoking all former wills by me made.

In witness whereof, I have hereunto set my hand and seal the 16th day of September, in the year of our Lord one thousand nine hundred and twenty-one. Mary Cole. [Seal.]

The above instrument, consisting of two sheets, was now here subscribed by Mary Cole, the testatrix, in the presence of each of us, and was at the same time declared by her to be her last will and testament, and we, at her request, sign our names hereto in her presence as attesting witness.

Arthur B. Atkins, of Napoleon, N. D.

A. B. Currier, of Bismarck, N. D.”

The contract was delivered to Goodin, and the will was retained by Atkins. When the train reached Bismarck, Mary Cole was taken to a hospital, and Goodin returned to Braddock where he proceeded to take care of some...