Holmes v. Connable

• Decision Date: 10 May 1900
• Parties: CORDELIA M. HOLMES, Appellant, v. HOWARD L. CONNABLE et al
• Court: Iowa Supreme Court

82 N.W. 780

111 Iowa 298

CORDELIA M. HOLMES, Appellant, v. HOWARD L. CONNABLE et al

Supreme Court of Iowa, Des Moines

May 10, 1900

Appeal from Lee District Court.--HON. HENRY BANK, JR., Judge.

ACTION in equity to enforce specific performance of an oral promise of one A. L. Connable, now deceased, to give plaintiff a child's portion of his estate. Defendants are the devisees and executors of such estate. From a decree dismissing plaintiff's petition, she appeals.

Affirmed.

Moses A. McCoid and H. Scott Howell & Son for appellant.

James C. Davis for appellees.

OPINION

WATERMAN, J.

Cases of a similar nature to this are finding their way into the courts with alarming frequency of late years. We have here an attempt to secure, upon oral evidence, a large share of a valuable estate in probate, and the facts given to support it are mostly of such a character as not to be open to direct denial. We shall pass a number of defenses, such as election of remedies, statute of limitations, former adjudication indefiniteness of the contract, and that it is against public policy, and address ourselves to a consideration of the testimony. And in doing this we shall take the claimant's evidence as she has given it, though part of her testimony should perhaps be excluded, under the statute. A brief outline of the facts will serve to show the applicability of certain rules of law to which we desire to call attention before proceeding to a critical analysis of the evidence: One A. L. Connable, a resident of Keokuk, died on the fifteenth day of April, 1894, leaving a will by which his entire estate, of some two hundred and fifty thousand dollars, was devised to his three sons, his only children and, so far as then appeared, these were the only proper objects of his bounty, for his wife had previously died. Nearly three years after the probate of the will, this claim was first made. Plaintiff asserts that when a small child she was taken into the family of Mr. Connable, with her mother's consent, on an oral promise by him that, if she would remain until she was grown, he would give her on his death a share of his estate equal to that of his own children. This was in the year 1856. There is no dispute but that plaintiff spent some years in the family. We shall accept her statement that she remained until the year 1865. She then left, and went to Jefferson county in this state, where she has since resided. It is conceded that since the year 1865 plaintiff has never visited the Connable family, though they continued to live in Keokuk; that she saw Mr. Connable but once in all this time; that none of his family ever visited her, and there was no communication between her and any of them, save some letters, of which we shall have more to say in proper time. The oral contract is said to have been made in the presence of Mr. and Mrs. Connable, both dead, and of plaintiff, with her mother, brother, and sister. There is also evidence from three witnesses of declarations by Connable to the effect that plaintiff was to share his estate with his children, or that he had agreed she should do so. Some lost and mutilated letters, the contents of which are supplied by oral evidence, are also relied upon to support the claim. This will give an idea of the character of the case presented by plaintiff.

Before going into details, we wish, as already suggested, to say something as to the rules that should govern courts in passing upon cases of this kind. It will not do, as plaintiff's counsel seem to think proper, to hold that because a certain number of witnesses have testified to the making of the contract, and none have been called to deny it, plaintiff's case is established. The lips of the only two witnesses who could deny it are forever closed. The only person who could controvert the admissions alleged to have been made is the dead man against whose estate this claim is produced. There is no defense that can be made, save as it may be found in the improbability of the stories of the plaintiff's witnesses, when tested by comparison with other evidence in the case, or the ordinary rules of human conduct under similar circumstances. Watson v. Richardson, 110 Iowa 673, 80 N.W. 407; Laurence v. Laurence, 164 Ill. 367 (45 N.E. 1071); Wallace v. Rappleye, 103 Ill. 229, 665. In this last case, which bears some similarity to the one at bar, in its facts, the court said in relation to the oral evidence offered: "It is incumbent on the court to look upon such evidence with great jealousy, and to weigh it in the most scrupulous manner, to see what is the character and position of the witnesses generally, and whether they are corroborated to such an extent as to secure confidence that they are telling the truth." So, on the same subject, the supreme court of Pennsylvania said: "The temptation to set up claims against the estates of decedents--particularly such decedents as have left no lineal heirs--is very great. It cannot be doubted that many such claims have been asserted which would never have been known, had it been possible for the decedent to meet his alleged creditor in a court of justice. * * * Such claims are always dangerous, and when they rest upon parol they should be strictly scanned. Especially when an attempt is made, under cover of a parol contract, to effect a distribution different from that which the law makes, or that which the decedent had directed by his will, it should meet with no favor in a court of law. Even if such contract may be enforced, it can only be when it is clearly proved by direct and positive testimony, and when its terms are definite and certain. The danger attendant upon the assertion of such claims requires, as was said by Chief Justice Gibson in reference to a somewhat similar contract, that a tight rein should be held over them, by making the quality, if not the sum, of the proof a subject of inspection and governance by the court, and by holding juries strictly to the rule described." Graham v. Graham's Ex'rs, 34 Pa. 475. See, also, Pollock v. Ray, 85 Pa. 428; Shakespeare v. Markham, 72 N.Y. 400; Mundorff v. Kilbourn, 4 Md. 459. Bearing these rules in mind, we shall now take up the testimony in detail:

Plaintiff's father, Stephen Finney, was a brother of Mrs. A. L. Connable. He died in the year 1855 in the state of Alabama, where he then resided with his family. His father, who lived in Jefferson county, Iowa, sent the widow a small sum of money; and, thus aided, she started in the year 1856 for the grandfather's home. Mrs. Finney (now Holmes) had seven children, and these she brought with her. Plaintiff, the third child, was at this time nine years old; her elder brother and sister being, respectively, eleven and thirteen years. The family reached Keokuk on the night of a Saturday in May, 1856. None of them had ever met Mr. Connable, but on Sunday morning two of the children were sent out to find him. This they did, and he took the whole family from the hotel where they were stopping to his home, where they remained until the Tuesday following, when the mother and six children pursued their journey, leaving plaintiff behind. The claim is that on Monday Mr. Connable proposed keeping the plaintiff, and after some consideration the mother and child consented. The terms upon which the child was taken are thus stated by the witnesses: The mother says: "My older children were present, and Mrs. Connable. I was talking about leaving the next day, and he [Mr. Connable] said I had better leave Cordelia with him. I told him I would hate to give up one of my children, but would study about it awhile. He did not say anything more until afternoon, and then he asked me if I had made up my mind to let Cordelia stay; if I would let her stay with them until she was grown, she would share equally with his children in his estate at his death." On cross-examination she tells of the agreement in this way: "Mr. Connable wanted to know if I would leave Cordelia with them, as one of the children; if I would, he would do a good part by her as he would by one of his own children, if she would stay there until she was grown." If the agreement was in the indefinite form last stated, no court would enforce the claim to an interest in the estate. It might well mean only that he would treat her as a child of his own so long as she remained with him. But, take the statement made on direct examination, and we have this man, with children of his own, offering to divide their inheritance with a strange child, of whose disposition and character he was wholly ignorant. That this is a strong circumstance to be considered, see Wilson v. Heath (Sup.) 23 Misc. 714, 53 N.Y.S. 166. If the offer was merely of a home to one of the children, we can well believe it might have been induced by pity for the condition of the family, and because of the slight bond of relationship that existed. There seems to be a claim by counsel that the mother would not have parted with her child but upon a liberal promise as to its future welfare. We can hardly reconcile this with the fact that about a year from this time she parted with others of her children, who left her to live with different friends and relatives in the vicinity of her home. That her maternal love was not of the most sensitive and tender kind is further shown by the fact that two of her daughters (one the plaintiff) were married near where she resided, and she did not attend either wedding. She says, "I was not in the habit of attending my daughters' weddings." We can well believe that the taking of her daughter Cordelia by Connable was a relief to her, rather than a sacrifice.

We come now to the testimony of the three children who were present when these conversations occurred:

Laura who gives her evidence in the...