In re Runnells' Estate

• Decision Date: 18 February 1927
• Docket Number: 37663
• Citation: 212 N.W. 327,203 Iowa 144
• Parties: IN RE ESTATE OF SARAH RUNNELLS. v. F. W. CURTIS, Executor, et al., Appellants EDITH KEAIRNES MCINTOSH, Appellee,
• Court: Iowa Supreme Court

212 N.W. 327

203 Iowa 144

IN RE ESTATE OF SARAH RUNNELLS.

EDITH KEAIRNES MCINTOSH, Appellee, v. F. W. CURTIS, Executor, et al., Appellants

No. 37663

Supreme Court of Iowa, Des Moines

February 18, 1927

Appeal from Harrison District Court.--H. J. MANTZ, Judge.

Plaintiff is a claimant against the estate of the decedent, Sarah Runnells. She predicates her claim upon the breach of an oral express contract for the conveyance or devise of a farm. Her claim is for $ 15,000, the alleged value of such farm. There was a trial to a jury, and a verdict for $ 15,000, upon which judgment was entered. The defendant appeals.

Reversed.

Lloyd Harding, H. L. Robertson, and Robertson & Havens, for appellants.

C. W Kellogg, for appellee.

EVANS C. J. DE GRAFF, ALBERT, and MORLING, JJ., concur.

OPINION

EVANS, C. J.

I.

The more important difficulties of this case involve its collisions with Section 11257, Code of 1924 (Section 4604, Code of 1897), and with the statute of frauds, Section 11286, Code of 1924.

The claimant predicated her case in the first instance upon two grounds: (1) Quantum meruit; (2) oral express contract. She later withdrew the quantum meruit count, and rested her case upon the alleged express contract and her performance thereof. All the testimony of the claimant was received over appropriate objections, which need not be incorporated herein. The multiplicity of these objections has made a confusing record, and the like multiplicity of 85 assignments of error has swelled the appellant's brief to undue proportions, and has greatly counteracted the aid which we might otherwise receive therefrom.

The evidence relied on by the claimant in proof of the contract was a certain conversation had between the deceased and the claimant's mother, who was sister to the deceased. The plaintiff herself testified to this conversation, and testified that she took no part therein. The mother, Julia Keairnes, purported to testify also to the same conversation, and testified likewise that the claimant took no part therein. Corroborative evidence by other witnesses, in the nature of admissions of the deceased, was also introduced. This means that the evidence of the contract was circumstantial only, and not direct, and that reliance was had upon the inferences which could properly be drawn from such circumstances. McElhenney v. Hendricks, 82 Iowa 657, 48 N.W. 1056; In re Estate of La Grange, 191 Iowa 129, 181 N.W. 807; Campbell v. Collins, 133 Iowa 152, 110 N.W. 435; Campbell v. Collins, 152 Iowa 608, 132 N.W. 381.

One of the manifest errors upon the record is that the district court submitted the case to the jury by instructions which contained no reference to the circumstantial or indirect character of the evidence. We are more particularly concerned, however, with the question whether the evidence was sufficient to warrant a submission to the jury at all. The claimant's withdrawal of the quantum meruit count of her petition was well advised. In that regard, the claim is not a meritorious one. If her claim can be sustained, it must be on the ground of an express contract, for a consideration performed by the claimant.

Mrs. Runnells, the decedent, was a widow since 1904. Her only child, a married daughter, died in 1913, without issue. Up to the time of her husband's death, she lived upon a farm of 120 acres. Thereafter, she moved to the town of Dunlap, having acquired a home there. In this home she lived during the last 20 years of her life. She died in April, 1924. She was the owner of the farm and her home in Dunlap and other property, amounting to a total of about $ 32,000. She lived comfortably, and appears to have expended her income freely and generously. Her brothers and sisters lived near by, and she had many nephews and nieces. One of these was the claimant, upon whom the decedent bestowed many favors until about the year 1920. From that date forward, the relations between the claimant and her aunt were not cordial. At the time of the event under consideration, the claimant was an unmarried woman, 38 years of age. She was, and had been for many years, in the employment of the telephone company, as an operator, and received wages ranging from $ 35 to $ 55 a month. In 1912, the decedent took a trip to California, and at her own expense took the claimant with her. In 1915, another trip of the same kind was taken to California. In 1918, a similar trip was taken to Denver. Each of these trips occupied from three to four weeks. On one of them another cousin, Bertha Keairnes, was taken along. These were clearly pleasure trips, taken for the mutual enjoyment of all parties, and paid for by the decedent. Near the beginning of 1919, a similar trip to Florida was taken by the decedent and by the claimant, at the expense of the decedent. The claim put forth herein is that the Florida trip became the occasion of the contract upon breach of which the claimant's cause is predicated. Her pleading was that the decedent promised to give claimant the farm, in consideration of services performed and to be performed during a period of 13 years from 1908 to 1921, and that the trips to California and Denver and Florida were all made in reliance upon such promise. Her evidence, however, as to the making of the alleged contract was directed to a time just preceding the Florida trip, and the only evidence of subsequent performance on her part was the taking of the Florida trip.

An intelligent discussion of the sufficiency of the evidence to sustain the verdict will be impossible unless we set forth a considerable portion thereof. To this end we devote the following division of this opinion.

II. For the purpose of setting forth evidence herein, objections and rulings will be omitted. As to the making of the contract with the decedent, the claimant testified as follows:

"Before the trip my aunt made to Florida, to which I testified that I saw her on the trip, I heard a conversation between my aunt, Mrs. Runnells, deceased, and my mother, Julia Keairnes, with reference to my going with her to Florida. I did not take part in that conversation. My aunt, Mrs. Runnells, was talking to my mother. * * *

"The witness: My mother was sick, at the time, and Mrs. Runnells said to her that, if she would let me go to Florida with her, and take care of her on these trips, that she would give me the farm, for what I had done for her, going on these other trips, and going to Florida with her. * * *

"Mr. Kellogg: What did your mother say, if anything, if you know? A. She told her she was sick, but she would give her consent for me to go; she would try to get along to home the best way she could.

"Mr. Kellogg: What, if anything, during that conversation with your mother, did Mrs. Runnells say as to what she would promise you if you would do that? A. She told her that she would promise me the farm and a whole lot more, for what I had done for her, and for taking care of her and going with her on this trip. * * *

"The witness: When she was through with it, the farm was mine.

"Mr. Kellogg: Did you take any part in the conversation you have just detailed,--the conversation between your mother and her sister, Mrs. Runnells? A. No.

"Mr. Kellogg: Was any of that conversation addressed to you by Mrs. Runnells, that you have testified to?

"The witness: She told it to my mother."

On the same subject, Julia Keairnes, the mother of the plaintiff, testified as follows:

"I remember them going to Florida, all right. I had a talk with my sister, Mrs. Runnells, about Edith, going with her to Florida. Mrs. Runnells came up to my house and wanted me to let Edith go with her to California, and I told her--Mrs. Runnells--that I didn't see how I could let her go, because I wasn't well enough,--I was sick at that time; and then Mrs. Runnells said to me, she says, 'If you will let Edith go to California with me, and for what she has done for me, I will give her the farm.' And then, when Mrs. Runnells got ready to go home, she said to me, she says, 'The farm is Edith's now, when I am through with it,'--when she was through with it. Mrs Runnells never said nothing to me about providing, or anything of that kind, when she went on the Florida trip. Why she told me that she had made her will, and had willed the farm to Edith. * * *

"Q. What, if anything, did your sister, Mrs. Runnells, say to you at any time about what Edith had done for her, that she was giving her this land when she died? A. Well, she said that she was going to give it to Edith, because Edith had always took good care of her, and was always ready to take care of her when she was sick, and always give her good care. Q. What, if anything, did she say that she had told Edith? A. Why, she said that she had told Edith that she was going to give her the farm, for what she had done for her. Q. How many times did your sister tell you that? A. Well, she told me that several times. I can't just say how many times, but she told me that several times. * * * I think, about four years before she [Mrs. Runnells] passed away, that she was talking to me about it, and she said she was going to give the farm to Edith. * * * A. Yes, that she was going to give the farm to Edith. She was going to give Edith the farm, if I would let her go with her,--if I would let Edith go to Florida with her; that she would give her the farm, for what she had done for her, and for going to Florida with her. * * * A. Why, she said--I just told you that she said, 'Now the farm is Edith's, when I am through with it.' Wasn't that giving it to her? Q. Well, she said she was going to give it to her? A. She didn't say she was going to. She said, 'Now, the farm is Edith's when I am through with it.' * * * "

The foregoing is all the evidence...