Makinson v. Shumick
| Decision Date | 08 May 1923 |
| Docket Number | 35265 |
| Citation | 193 N.W. 407,196 Iowa 980 |
| Parties | ANNA MAKINSON, Appellant, v. JOHN W. SHUMICK et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED NOVEMBER 20, 1923.
Appeal from Fremont District Court.--EARL PETERS, Judge.
SUIT in equity, for the specific performance of an oral contract alleged to have been made between John Shumick and wife (now both deceased) and the parents of the plaintiff, Anna Makinson, for the benefit of the latter. Trial to the court. Petition dismissed, and plaintiff appeals.
Affirmed.
Tinley Mitchell, Ross & Mitchell and L. H. Mattox, for appellant.
Wilson & Keenan, Ferguson, Barnes & Ferguson, Saunders & Stuart, and Pitzer, Klyne & Tyler, for appellees.
STEVENS, J., takes no part.
Patrick Finn and Mary Finn were husband and wife. For some years they maintained a home in Nebraska, but later became residents of Iowa. Patrick died about the year 1906, and Mary died in January, 1920. During his lifetime, Patrick acquired title to 160 acres of land in Iowa, as well as to a certain other tract or tracts in the state of Nebraska. At some time prior to his death (the date not being made clear in the record except by an inference that it was in the year 1898), he conveyed the title to his wife, Mary, in whom it remained until her death, in January, 1920. Neither of said parties left a surviving child or other lineal descendant. The plaintiff herein is the daughter of the sister of Mary Finn, and the defendants are collateral heirs and next of kin. Mary left a will, by which she gave the bulk of her entire estate to her sister, Ellen Lee. This instrument was thereafter, upon petition of the plaintiff, duly admitted to probate, without objection or contest. To this extent, the record is apparently undisputed. The suit was begun June 22, 1921. Plaintiff alleges, in substance, that, in the year 1884, when she was a child of twelve years, living with her parents in the state of Illinois, Patrick Finn and wife solicited the father and mother of plaintiff to permit them to take her into their care and custody, to be reared and kept by them as their own child, until she should marry; and that, as a consideration and inducement for the grant of said request, they offered and promised to leave to her their entire estate, upon their death. She further alleges that this offer was accepted, and that, in pursuance of said agreement, her parents surrendered her to the custody and keeping of Finn and wife; that she became a member of their family, serving them and supported by them as a daughter, until she married, in the year 1896, thereby performing and satisfying the conditions and considerations for the agreement pleaded; and she asks a decree confirming her said claim, and for the specific performance of said agreement. Plaintiff further explains and seeks to avoid any unfavorable inference arising from her delay in making known her claim or from the probating of the will of Mary Finn by alleging that she first learned of the contract between her parents and Finn and wife only after the will had been...
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