Layton's Estate, In re

• Decision Date: 20 August 1982
• Docket Number: No. 44361,44361
• Citation: 212 Neb. 518,323 N.W.2d 817
• Parties: In re ESTATE OF LAYTON. Lester J. LUTZ and Ward Thompson, Co-personal Representatives of the Estate of Harry H. Layton, deceased, Appellants, v. James C. EICH, Appellee.
• Court: Nebraska Supreme Court

Page 817

323 N.W.2d 817

212 Neb. 518

In re ESTATE OF LAYTON Lester J. LUTZ and Ward Thompson, Co-personal Representatives of the Estate of Harry H. Layton, deceased, Appellants, v. James C. EICH, Appellee.

No. 44361.

Supreme Court of Nebraska.

Aug. 20, 1982.

Syllabus by the Court

1. Equity: Contracts: Decedents' Estates. A suit to enforce an alleged oral contract to make a will is a suit in equity to be tried to the court. If a jury is called in the trial of such a case, its functions are advisory only.

2. Jurisdiction: Contracts: Decedents' Estates. A county court does have jurisdiction to hear actions on oral contracts to make a will, even though they are equitable in nature, under its general authority to hear all matters relating to a decedent's estate.

3. Equity: Specific Performance: Decedents' Estates: Appeal and Error. On appeal to this court of an equitable action to compel specific performance of a promise made to make a will, we must hear and determine the matter de novo and reach an independent conclusion without being influenced by the findings of the trial court.

4. Decedents' Estates: Contracts: Proof. Where one is claiming the estate of a person deceased under an alleged oral contract, the evidence of such contract and the terms of it must be clear, satisfactory, and unequivocal.

5. Contracts: Decedents' Estates: Statute of Frauds. Such contracts are on their face void as within the statute of frauds, because not in writing, and, even though proved by clear and satisfactory evidence, they are not enforceable unless there has been such performance as the law requires.

6. Contracts: Decedents' Estates. The thing done, constituting performance, must be such as is referable solely to the contract sought to be enforced, and not such as might be referable to some other and different contract.

7. Contracts: Decedents' Estates: Proof. The burden is upon the claimant in a suit on an oral contract to make a will to prove both the existence of the contract and its terms and the acts constituting performance such as were referable solely to the contract sought to be enforced.

8. Contracts: Decedents' Estates: Evidence. Evidence of declarations of a deceased person concerning a parol contract does not amount to direct proof of the facts claimed to have been admitted by those declarations, and such evidence, when not supported by other evidence, is generally entitled to but little weight.

James T. Gleason, Omaha, for appellants.

James B. Cavanagh of Erickson, Sederstrom, Leigh, Eisenstatt, Johnson, Kinnamon, Koukol & Fortune, P. C., Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

HASTINGS, Justice.

This is the second appearance of this action in this court. For a complete recitation of the facts, reference is made to the former opinion, reported at 207 Neb. 646, 300 N.W.2d 802 (1981). The case arises from the appellee's filing of what is purported to be a "claim" and an "amended claim" against the estate of Harry H. Layton. These documents allege that the decedent had promised the appellee during the last 10 years of the decedent's life that, in return for the appellee's long and faithful service, the decedent would execute a will leaving the appellee the inventory, the goodwill, the equipment, and the business building in which the Layton Hardware Store is located. In closing, the documents allege that the appellee "should receive the Layton Hardware Store business."

We determined in the initial appeal of this action that the Sarpy County District Court had erred in determining that the county court had not had jurisdiction over a matter of this nature. In so doing, we held that upon the filing of an intestacy proceeding in the county court, the county court acquires jurisdiction by law over all matters relating to the decedent's estate, including actions similar to the one filed in this case.

On remand, the action was tried to a jury in the District Court, resulting in a verdict for the appellee in the amount of $15,381.37 plus a requirement that the estate convey the building and lots upon which the Layton Hardware Store is located. The appellants perfected this appeal and assign as error the trial court's treatment of the jury verdict as dispositive rather than advisory; the trial court's failure to grant their motions for summary judgment, directed verdict, and judgment notwithstanding the verdict; the instructions the court submitted or refused to submit to the jury; the admittance of certain evidence; and the fact that the jury verdict is contrary to law and the evidence. We reverse.

The appellants' initial assignment of error arises from a dispute among the parties as to whether this action is legal or equitable in nature. As noted above, the appellee contends that he is entitled to and should be awarded the building, inventory, equipment, and goodwill of the Layton Hardware Store under the terms of an alleged oral promise made by the decedent that this property would be left to the appellee in the decedent's will. The appellants have interpreted such language to be a request for specific performance of an oral promise which, they contend, is an equitable action in which a jury verdict is advisory only and is not binding upon the District Court's disposition of the matter on appeal from the county court. On the other hand, the appellee characterizes this case as a common claim against an estate, which he contends is to be tried to a jury on appeal to the District Court under the provisions of Neb.Rev.Stat. §§ 30-1606 and 25-1104 (Reissue 1979).

We have long since decided this issue in Peterson v. Estate of Bauer, 76 Neb. 652, 107 N.W. 993 (1906), aff'd 76 Neb. 661, 111 N.W. 361 (1907). In that case a "claim" was filed against a decedent's estate alleging that the decedent was indebted to the claimant in the sum of $9,000, said debt arising out of services rendered for the decedent by the claimant for which the decedent had agreed to pay by devise or bequest to the claimant an amount not less than one-half of the decedent's entire estate at death. Upon the decedent's failure to make such a provision in his last will and testament, the claimant placed a value upon the estate of $18,000 and filed a claim requesting a judgment for one-half of that sum. The county court granted a judgment for $6,000, and the estate appealed to the District Court, where a jury returned a verdict for the estate.

Upon appeal of the matter, this court was called upon to discuss certain errors alleged to have arisen from the District Court's instruction to the jury. In doing so, the court noted that "The proceeding is in the form of an action at law, having originated in the district court in an appeal from an allowance by the county court of a money demand filed against the estate of the deceased, but the nature of the claim, notwithstanding its form, is really and practically a suit to compel a specific performance of the alleged contract and like all such demands is addressed to the conscience of the trial judge sitting as a chancellor. The issue is one with which from its very nature and essence a court of law is incompetent to deal, and the present attempt to litigate it in such a tribunal is, so far as our information goes, without precedent.... The suit is one to bind specifically the estate, real and personal, of the deceased with a contract alleged to have been made by him in his lifetime, which is confessedly void by positive statute both in form and in substance, but which it is contended that equity will nevertheless enforce for the purpose of preventing fraud and doing exact justice. To such a suit the persons claiming title to the lands of the decedent as heirs or devisees, and asserting rights as distributees of the personalty by will or by statute, are indispensable parties without whose presence a final determination of the controversy cannot be made. It follows that such a claim is not litigable in the ordinary course of probate administration, but must be prosecuted, if at all, in a court of original and general equitable jurisdiction and powers, the executor or administrator being a proper but not in all instances a necessary party.... It further follows that, when a jury is called in the trial of such a case, its functions are advisory only, and the court cannot commit reversible error in the giving or refusal of instructions." (Emphasis supplied.) Id. at 659-60, 107 N.W. at 995-96. This language was adopted by the court on rehearing, with the following affirmation: "The conclusions of the former opinion that such an action as this, to appropriate one-half of the net value of the estate, should be in chancery, where all persons interested may be made parties, are sound and are adhered to." Id. at 665, 111 N.W. at 363.

It is readily apparent that the appellants have accurately characterized this action under Peterson as being equitable in nature, in spite of the fact that it is couched in the terms of a "claim" against the decedent's estate. Consequently, this action does not fall within that class of appeals from "the allowance or disallowance of claims filed against an estate," which are governed by § 25-1104, but rather falls within the final provision of § 30-1606, which provides that "all other appeals shall be triable to the court as a suit in equity in the manner provided in section 25-1105." (Emphasis supplied.) Neb.Rev.Stat. § 25-1105 (Reissue 1979) provides for a trial to the court "subject to its [the court's] power to order any issue or issues to be tried by a jury."

We have noted on prior occasions that the predecessors to § 25-1105 preserve the right of a court to submit a question of fact to a jury in an equitable action. Alter v. Bank of Stockham, 53 Neb. 223, 73 N.W. 667 (1897); Omaha Fire Ins. Co. v. Thompson, 50 Neb. 580, 70 N.W. 30 (1897). Therefore, it was not error for the District...