McMahon v. Auger

• Decision Date: 29 November 1960
• Docket Number: No. 8874,8874
• Citation: 83 Idaho 27,357 P.2d 374
• Parties: Margaret McMAHON, Plaintiff-Respondent, v. B. AUGER, Administrator of the estate of Jack Wilks, deceased, Defendant-Appellant, and The State of Idaho, Defendant.
• Court: Idaho Supreme Court

Page 374

357 P.2d 374

83 Idaho 27

Margaret McMAHON, Plaintiff-Respondent, v. B. AUGER, Administrator of the estate of Jack Wilks, deceased, Defendant-Appellant, and The State of Idaho, Defendant.

No. 8874.

Supreme Court of Idaho.

Nov. 29, 1960.

Paul W. Hyatt, Lewiston, B. Auger, Grangeville, for appellant.

Cox, Ware, Stellmon & O'Connell, Lewiston, Wm. J. Dee, Grangeville, for respondent.

KNUDSON, Justice.

Respondent Margaret McMahon commenced this action seeking specific performance of an alleged oral agreement made by Jack Wilks (hereinafter referred to as Wilks) to devise certain farm land in Idaho County to respondent. Appellant not having offered any evidence the proof submitted by respondent is undisputed. Briefly the facts are that respondent, at an early age, was placed in the custody of her aunt Sarah Ellen Yates, who was the then owner of the ranch in issue; Sarah Ellen Yates died in 1909 and upon her death her son, Joe Yates (hereinafter referred to as Yates) inherited the ranch and was also appointed respondent's guardian; that during 1914 Wilks, a bachelor (being unrelated to either Yates or respondent) took up residence with Yates, a bachelor, and respondent on said ranch; respondent remained on the ranch until she married in 1915 when she moved away; respondent thereafter returned to the ranch from time to time to aid and assist the said Yates and Wilks; that in 1942 Yates became ill and respondent returned to the ranch and cared for him until his recovery; in 1943 Yates suffered a severe stroke and respondent returned to care for him and remained at the ranch attending and assisting Yates and Wilks from August 1944 until February 1947. Yates died December 8, 1947, leaving a will under the terms of which Wilks was designated executor and as sole devisee he succeeded to the title of the ranch involved. Upon the death of Yates respondent returned to the ranch and remained there until February 25, 1948.

It is alleged in the complaint that on or about February 10, 1948, respondent stated to Wilks that she intended to file a claim against the estate of Yates (time for filing claims against the estate not having expired) for the work and services she had rendered through the years at the request of Yates and pursuant to his agreement thereto; that Wilks then stated that the ranch belonged to both respondent and himself; that it was as much her home as it was his and that it would be hers when he was through with it; that the said Wilks requested respondent not to file a claim against the Yates' estate and stated that she would get more later by not doing so; that the said Wilks further stated that if respondent did not put in her claim and would 'stay by him' that he would make a will devising the ranch to her; that the felt 'that is the way Joe [Yates] wanted it to be'; that in pursuant and performance of such contract respondent abandoned her intention to file such claim; that respondent returned to the ranch each year staying from one to four months aiding and assisting Wilks on and about the ranch and advising him in business and personal matters and 'staying by' him until his death; that respondent fully performed all the terms of said contract and the said Wilks failed to perform; that Wilks died intestate on July 30, 1954 and without known legal heirs; that the State of Idaho has been made a party by reason of I.C. Title 14, Ch. 2. The State has not filed any appearance in this action.

The appellant B. Auger, administrator of the estate of Jack Wilks, deceased, filed a general demurrer and an answer denying the material allegations of respondent's complaint. Said appellant also pleaded five affirmative defenses which, briefly stated, are that if the alleged agreement between respondent and Wilks was ever made (1) it was not supported by any valuable, adequate or sufficient consideration, (2) it was a special promise to answer for the debt and default of another, (3) it was a special promise by Wilks, as executor, to answer in damages or to pay a debt of another, (4) it was an agreement purporting to create an estate or interest in real property which was not in writing or subscribed by Wilks or his lawful agent, and (5) if intended as a will it was not reduced to writing in conformity with the laws of the State of Idaho.

The case was tried to the court sitting without a jury and from a judgment in favor of respondent this appeal is taken.

Appellant specifies 14 assignments of error, 11 of which relate to the insufficiency of the evidence to sustain the findings of the trial court.

Assignment No. 14 claims error in overruling appellant's demurrer to the complaint and the remaining two assignments claim error in not finding for appellant.

The only ground stated in the demurrer is 'that said complaint does not state facts sufficient to constitute a cause of action against the defendant'. After examining the complaint we are convinced that no error was committed in overruling the demurrer.

For the purpose of obtaining a clear understanding of the facts which the trial court had to consider we deem it proper to mention that a substantial amount of uncontradicted pertinent evidence was introduced disclosing the extent and nature of the services rendered Yates by respondent and it is convincing that respondent devoted many days to the care, comfort and well being of Mr. Yates. After respondent's marriage (1915) seldom, if ever, did a year pass but that she returned to the ranch where she remained for periods of from one to three months on each trip, during which periods respondent performed, among other things, the cooking and washing, also cleaned the house and on occasions worked in the fields. During the last several years of his life Yates suffered periods of illness, some of which lasted for months, rendering him helpless to the extent that he could neither feed nor otherwise care for himself. The ranch home at that time was not provided with modern and desired facilities which would aid in the maintenance of cleanliness and sanitation about the premises. Consequently during periods of his helplessness respondent's endeavors to nurse and care for him were rendered unusually difficult. However notwithstanding such difficulties respondent steadfastly and affectionately administered to his care, comfort and needs. One of such periods lasted from August 1944 to February 1946.

Respondent relies for the most part upon testimony of four witnesses as establishing the alleged agreement. Walter McAdams, being one of such witnesses, testified that he had known respondent and Yates since 1913 and became acquainted with Wilks in 1915. Said witness testified to a conversation which took place at the home of Wilks shortly after the death of Yates during which McAdams and his wife, respondent, Wilks and Howard Swatman (now deceased) were present. Said witness stated that on said occasion he had gone to see Wilks as the executor of the Yates estate to discuss a claim for money which he had against the said estate. The following are excerpts of Mr. McAdams' testimony:

'Q. All right. Now, you say you had some conversation with Jack Wilks about your claim against Joe Yates' estate? A. Yes.

'Q. Was Margaret McMahon present at that conversation? A. Yes, she spoke up.

'Q. What did she say? A. She spoke up and said she would put in for a settlement too.

'Q. Did she say anything about what her claim was for? A. Yes, sir.

'Q. What did she say? A. Her services for all those years she had taken care of Joe.

'Q. What, if anything, did Jack Wilks say when Margaret McMahon made that statement? A. He told me he would take care of my bill himself, and he also told Margaret if she would not put in a bill, she was going to get the place; that it was her place anyhow; that was Joe Yates' wish.

'Q. What, if anything, further was said by Jack Wilks to Margaret McMahon? A. He told Margaret McMahon if she would stay by him he would stay by her and make a will in her favor; the ranch was as much hers as his and she would have it all.'

The following are excerpts of the testimony of Ruth McAdams relating to the same conversation referred to by Mr. McAdams, above quoted:

'Q. Now, following that conversation between your husband and Jack Wilks, was there any conversation between Margaret McMahon and Jack Wilks in your presence and in the presence of your husband and Mr. Swatman? A. Yes, sir.

'Q. Go ahead and state, as you recall, the conversation or statement that Margaret McMahon made to Jack Wilks, if any. A. Mr. McAdams said he wanted to put in his claim against the estate. Margaret McMahon spoke up and said, 'Jack, how about me putting in my claim?' and Jack said, 'It's not necessary. This is your ranch as much as mine. That's the way Joe wants it. When I am gone, it's yours'. And that's the conversation that went on.

'Q. Did Jack Wilks say anything about what he would do, how he would transfer that property to her? A. Yes, he said, 'The ranch was yours, Margaret.' He said, 'It's always been your home and always will be your home'.

'Q. Did Margaret McMahon say anything further then? A. She said, 'Well, Jack, if that's the way it is going to be, if that's what you are going to do, if that's your wish, I withdraw my claim.'

Grace Yates, a sister-in-law of Joe Yates, while testifying regarding a conversation she had with Jack Wilks during a dinner at her home after the death of Joe Yates, made answer as follows:

'Q. Go ahead and relate the conversation between yourself and Jack Wilks. A. Well, Jack told me that Marguerite wanted him to pay her for her nursing Joe and that's when their contract was made, that if Marguerite would not charge Jack anything for nursing Joe that he would give her the ranch.

'Q. Was there anything else said at that time that you recall? A. Well, Jack talked. He repeated everything he said and I didn't pay much attention to him because he repeated everything he said.

'Q. What did he...