Makinson v. Shumick, 35265.
| Decision Date | 08 May 1923 |
| Docket Number | No. 35265.,35265. |
| Citation | 193 N.W. 407,196 Iowa 980 |
| Parties | MAKINSON v. SHUMICK ET UX. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Fremont County; 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, of Council Bluffs, and L. H. Mattox, of Shenandoah, for appellant.
Wilson & Keenan and Ferguson, Barnes & Ferguson, all of Shenandoah, Saunders & Stuart, of Council Bluffs, and Pitzer, Cline & Tyler, of Nebraska City, Neb., for appellees.
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 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 a daughter of a 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 12 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, 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 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 familiy, 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 probating the will of Mary Finn by alleging she first learned of the contract between...
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