Johnson v. Flatness, 7575

• Decision Date: 08 November 1949
• Docket Number: 7575
• Citation: 211 P.2d 769,70 Idaho 37
• Parties: JOHNSON et al. v. FLATNESS et al
• Court: Idaho Supreme Court

211 P.2d 769

70 Idaho 37

JOHNSON et al. v. FLATNESS et al

No. 7575

Supreme Court of Idaho

November 8, 1949

Rehearing Denied December 7, 1949.

Estes &amp Felton, Moscow, for appellants.

An oral agreement to devise realty by will must be clear, just definite, reasonable and mutual in its obligations. Where the contract is oral and the promisor's lips are sealed by death, courts subject it to the closest scrutiny. It is difficult to defend against such alleged agreements and they are often relied upon to perpetrate fraud. One seeking to establish such an oral contract must establish and clearly prove all the elements of the contract and a right to have it enforced beyond all reasonable doubt. Mathews v Tobias, 126 Or. 358, 268 P. 988; Scarlet v. Peoples Bank & Trust Co., 182 Wash. 257, 46 P.2d 1045; Reynolds v. Williams, 282 Pa. 148, 127 A. 473; Sharpe v. Wilson, 181 Iowa 753, 161 N.W. 35; Garren v. Shook, 306 Ill. 154, 137 N.E. 489.

The action of the plaintiffs constitutes a claim or demand against the estate of Kristiane Johnson, deceased, and the plaintiffs were not competent witnesses to any fact occurring before her death. Idaho Code, § 9-202; Rice v. Rigley, 7 Idaho 115, 61 P. 290; Thurston v. Holden, 45 Idaho 724, 265 P. 697.

When among the circumstances proved it appears that one, who profits by a will or a contract to make a will as a beneficiary thereunder, has sustained a confidential relation to the deceased and actively participated in procuring the execution of the will or contract to make a will, a prima facie case is made by this combination of circumstances against the will or contract, and unless these circumstances are satisfactorily explained, the will or contract to make one should be disallowed. Ryan v. Rutledge, Mo.Sup., 187 S.W. 877, Syl. 2; Seavey v. Glass, 315 Ill. 611, 146 N.E. 536; Wunderlich v. Buerger, 287 Ill. 440, 122 N.E. 827; Schouler on Wills § 307; Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A.L.R. 942.

A witness cannot state the impression made on him by the oral statements of others. Examination of a witness as to what he understood from a conversation should be denied. Sloan v. Sloan, Tex.Civ.App., 32 S.W.2d 513; Morache v. Greenberg, 116 Conn. 549, 165 A. 684.

J. H. Felton, Lewiston, William J. Jones, Lewiston, for respondents.

"Dead Man's" Statute may be waived and is waived when administratrix introduces evidence as to any part of transaction.

"The privilege of objecting to the competency of the adverse party is also deemed to be waived if the representative himself testifies or introduces testimony as to the transaction or communication in question. When the representative had introduced evidence as to transaction between the deceased and the adverse party, the court had no discretion in the matter to receive or reject the testimony as it sees fit, but it must receive the testimony of the adverse party, if it is offered in such case." 5 Jones on Evidence, see 2280, pp. 4436-4437; (citing many cases thereunder) Hurd v. Fleck, 34 Colo. 262, 82 P. 485; McLaughlin v. Webster, 141 N.Y. 76, 35 N.E. 1081; Albright v. Davis, Mo.App., 64 S.W.2d 121; Hartley v. Bohrer, 52 Idaho 72, at 79, 11 P.2d 616; Sweeney v. Hanmer, 66 Idaho 462, 162 P.2d 387.

Keeton, Justice. Holden, C. J., and Givens, Porter and Taylor, JJ., concur.

OPINION

Keeton, Justice.

This is a suit to compel specific performance of an alleged oral contract to will land and personal property and impress the same with a trust. The cause was tried before the court without a jury on the 31st of May, 1949, and findings of facts and conclusions of law and decree were entered in favor of the plaintiffs (respondents here). Defendants appealed from the judgment.

The testimony discloses that about 1900 R. J. Johnson and his first wife, Gunhilda Johnson, acquired certain farm lands near Troy, Idaho. To them were born five children, namely, Anna Bovencamp, Olga Stredwick, Regina Dahlberg, Gunhilda Olson and John R. Johnson, respondents here. Gunhilda Johnson died on the 2nd day of February, 1908, and at that time the parties owned 160 acres of land and some personal property, admittedly the community property of R. J. Johnson and his deceased wife. In 1917 R. J. Johnson married Kristiane Flatness and during this marriage other lands and personal property were acquired. R. J. Johnson died the 6th day of March, 1942, intestate.

During the probate proceedings of the R. J. Johnson estate, a family dispute arose as to the rights of the children by the first wife, and the widow Kristiane Johnson. A meeting of the family was had in Moscow, Idaho, on September 12, 1942, at which the only person present, outside of the family, was Ernest Bovencamp, husband of Anna. After some discussion of the conflicting claims, the parties, together with Kristiane Johnson, went to the office of Mr. Laurence Huff, where a further conversation took place, and an agreement was made that the children of R. J. Johnson by his first wife, respondents here, would withdraw objections to the settling of the R. J. Johnson estate by an exchange of deeds covering 160 acres of land admittedly his separate property. Pursuant to said agreement deeds were prepared by Mr. Huff in which the land owned by R. J. Johnson and his first wife, Gunhilda Johnson, was deeded to Kristiane Johnson, and she in turn deeded the property back to respondents, reserving herself a life estate. A decree of distribution of the R. J. Johnson estate was thereafter made; the property described in the above mentioned deeds was distributed to respondents, giving the widow a life estate as provided for in the deeds above mentioned.

Other property was decreed to be the community property of the deceased and his second wife, Kristiane Johnson, and was distributed to her. The property thus distributed to Kristiane Johnson, as community property, is the subject matter of this action, there being no dispute regarding the title to the 160 acres described in the deeds and referred to in the briefs as the "Home Place".

Kristiane Johnson died intestate on the 6th of June, 1948. Her sister, Karen Flatness, applied for and was granted letters of administration. The petition alleged the heirs to be Andrew Flatness, Halvor Flatness, and herself.

The children of R. J. Johnson by his first wife then brought this action for specific performance of an alleged oral contract of Kristiane Johnson to will to them all the property upon her death.

The court found that such a contract was made, and decreed that Kristiane Johnson had contracted to make a will giving respondents all of her estate equally and that such contract should be specifically performed by Karen Flatness, administratrix of the estate of Kristiane Johnson, deceased, and by the decree disinherited the appellants, brothers and sister of Kristiane Johnson.

At the trial Regina Dahlberg, John R. Johnson and Gunhilda Olson, parties plaintiff, were permitted to testify, over appellants' objection, relative to facts occurring prior to the death of Kristiane Johnson. Appellants assign admission of such testimony as error.

Sec. 9-202, I.C. provides:

"The following persons cannot be witnesses:

1. * * *.

2. * * *.

3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person."

That this suit is a claim or demand against the estate of a deceased person cannot be seriously questioned. See Thurston v. Holden, 45 Idaho 724, 265 P. 697; Rice v. Rigley, 7 Idaho 115, 61 P. 290.

The respondents, Regina Dahlberg, John R. Johnson and Gunhilda Olson, related a conversation had with the deceased at Moscow, on the morning of September 12, 1942, and testified to other facts occurring prior to the death of Kristiane Johnson.

No material fact occurring after the death of the deceased was testified to by any of said witnesses.

No citation of authority to interpret Sec. 9-202, I.C. is necessary. Its provisions are positive, plain and mandatory. The objection of appellants was timely and well taken as to all of said testimony and should have been sustained.

The appellants assign as error the admission in evidence, over objections, of plaintiffs' exhibit No. 2. This is copy of a letter written to Anna Bovencamp by Laurence Huff, in which he relates that he had a conversation with a Mr. Nelson concerning a will of Mrs. Johnson. The letter was not the best evidence it was heresay, and had no bearing on the issues. The letter was in no wise connected with any act permitted or authorized by Kristiane Johnson. The objection of appellants should have been sustained.

Respondents contend that even though this testimony was inadmissible, it was cured by the findings of the trial court that the testimony of Ernest Bovencamp and Laurence E. Huff, and the documentary evidence introduced was sufficiently clear and convincing to support the decision, making it unnecessary for the court to consider testimony of John R. Johnson, Regina Dahlberg and Gunhilda Olson.

Ernest Bovencamp is the husband of Anna Bovencamp, one of the plaintiffs, and he testified relative to a conversation had in the police station at Moscow above referred to, and to some occurrences alleged to have taken place in the office of Mr. Huff (Mr. Huff, however, testified that the witness was not present in his office.)

Regarding the making of the will the witness testified as follows:

"Q. Tell the court as best you can what happened there, will you? What was said and done there. A. Well, there was -- I don't know. There was a...