Nash v. Harrington

• Decision Date: 11 March 1922
• Docket Number: 22,135
• Parties: JOHANNA NASH, Appellee, v. AGNES HARRINGTON, Appellant, et al
• Court: Kansas Supreme Court

205 P. 354

110 Kan. 636

JOHANNA NASH, Appellee, v. AGNES HARRINGTON, Appellant, et al

No. 22,135

Supreme Court of Kansas

March 11, 1922

Decided January, 1922

Appeal from Russell district court; JACOB C. RUPPENTHAL, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ORAL CONTRACT--Agreement to Devise or Convey Land. The record examined, and held that the evidence is insufficient to supply the requisite and essential elements of a parol contract between a father and daughter for the devise or conveyance of 80 acres of land.

2. SAME--Oral Agreement to Devise Land Must Be Established by Competent and Sufficient Evidence. A provision in a will devising land pursuant to a prior parol agreement is a confirmation of such agreement, and it cannot be defeated by a subsequent revocation of the devise; but before this rule of law can be applied, it is essential that the existence of the prior parol agreement be established, by competent and sufficient evidence.

George W. Holland, M. J. Gernon, both of Russell, and W. A. S. Bird of Topeka, for the appellant.

J. E. Driscoll, Oscar Ostrum, both of Russell, and J. E. Addington, of Topeka, for the appellee.

OPINION

DAWSON, J.:

This lawsuit between two sisters was for the recovery of eighty acres of land conveyed by their father to the defendant, Agnes Harrington, but which was claimed by the plaintiff Johanna Nash, under an alleged oral contract with her father and confirmed by his will.

These litigants are the daughters of the late Timothy F. Harrington, a Russell county pioneer, who died in 1915. The family story is the not unusual one of long years of hardship and poverty followed by material prosperity. Timothy Harrington settled in Russell county in 1877. He had left his family in Michigan while he founded a new home in Kansas. Johanna, his eldest daughter, then a girl of fourteen years, came to reside with and assist him. The mother and the younger children, including Agnes, did not follow until 1883. Johanna remained at home until about 1887, when, at the age of twenty-four, she took up domestic service, and for the next twenty years she sent home part of her earnings to help support the family, and to help her father in his financial troubles, and, indeed, to help him pay for the particular eighty acres (state school land) involved in this controversy. At various times over a long period of years the father had expressed appreciation of Johanna's helpfulness, saying that but for her assistance he could not have won out in life's battle, could not have stayed in Kansas, could not have saved this eighty acres, and that he intended to divide his property between Johanna and Agnes, except that Johanna should have the eighty acres, and that it was hers already. The mother died in 1900. In 1903 the father made a will, which in part provided:

"5. I give and bequeath to my beloved daughter Johanna Harrington the east half of the northeast quarter of section (36) thirty-six in township fifteen south, range 12 west, Russell County, Kansas, the same being known as the school land.

"6. I give and bequeath the balance and residue of all my property, both personal and real, to my beloved daughters, Agnes Harrington and Johanna Harrington, share and share alike, to be their absolute property forever."

Johanna married in 1910. The other children, except a daughter who had died, were grown and scattered, and Agnes remained with her father and cared for him, and did much of the rough hard work on the farm. As early as 1894, perhaps on account of financial troubles, the father conveyed the home quarter section to Agnes, accepting from her in return a life lease of it, and a lease of a tract of land belonging to Agnes, and also a lease of this eighty acres of school land. At that time and for many years afterwards (until paid for and patented), the title to this school land remained in the state of Kansas. In June, 1912, Harrington made a codicil to his will which, if legally sufficient, revoked the bequest of the eighty acres to Johanna in the will of 1903. The codicil reads:

"I do give and bequeath unto my daughter, Agnes Harrington, all of my property, both personal and real."

At the same time, June 18, 1912, Harrington made and delivered a deed to Agnes conveying to her the eighty acres of school land.

Harrington died in 1915, and this lawsuit to set aside the will and to enforce the father's alleged oral contract with Johanna was begun. All matters involved in the lawsuit other than the conflicting claims of the two sisters to this eighty acres were determined by the trial court and need no attention here.

An advisory jury made answers to sixty-seven special questions, and the trial court made elaborate findings of its own covering twelve pages of the abstract. It seems necessary to give space to a considerable number of these:

JURY'S FINDINGS.

"1. Did the plaintiff, Johanna Nash, and her father, T. F. Harrington, ever make an oral agreement or have a verbal understanding that related to services by her for him or compensation to her by him? Ans. Yes.

"2. If you answer question No. 1 'yes' state when and where such agreement and understanding were made and had, and what each was to do and give, and what each was to get and receive, and when. Ans. About 1887 to 1900 home place S. 25-15-12. She was to furnish what money and work she could, to receive the 80 acres of school land and half of other property at his death.

"3. If you answer No. 1 'yes,' did plaintiff Johanna Nash thereby agree to do anything in the future? Ans. Yes.

"4. If you answer No. 3 'yes,' did Johanna Nash thereafter do and perform all she agreed to do as set out in your answer to No. 2? Ans. Yes. . . .

"11. Did Timothy F. Harrington, for what his daughter, Johanna, had done, and was doing for him, promise and agree to give her the school land at his death? Ans. Yes.

"12. Was the will of Timothy F. Harrington, executed December 11, 1903, made by him in pursuance of a promise on his part to give his daughter, Johanna, the school land and a part of his other property, in return for what she had done, and was then doing for him? Ans. Yes. . . .

"25. Does the evidence show that the codicil was made free from undue influence by Agnes upon her father? Ans. Yes . . .

"40. If the father made promises to give of his property to his daughter Johanna for some services to be performed by her, did he at the same time make similar promises to his daughter Agnes? A. Yes. . . .

"52. Did Timothy F. Harrington make and execute the codicil to the will about June 1912, under constraint of anyone? . . . Ans. No.

"53. Did anyone on the day of the execution of the codicil in June, 1912, and making of the same in any way at the time of signing same or while same was being prepared attempt in any way to influence Timothy F. Harrington into making of the same? . . . Ans. No.

"54. Did anyone at any other time attempt such influence? . . . Ans. No.

"56. How old is Agnes Harrington at this time? Ans. 49 years.

"57. How many years did Agnes Harrington remain at work at the home of her father after coming to Kansas? Ans. About 32 years. . . .

"59. State the kind of services rendered by Agnes Harrington on the land in controversy; also what household duties done, and whether she gave any care to her parents, and if so, state the kind, and for what period of time? Ans. General farm work, general house work and all care necessary covering a period of 32 years. . . .

"61. Did Johanna Nash expect that the money sent to her parents by her should be repaid to her? In money or otherwise? Ans. Yes."

TRIAL COURT'S FINDINGS:

"7. At some time, or times, between 1887 and 1900, on the home place in section twenty-five, Timothy F. Harrington, stated to his daughter, Johanna, that he would give her the east half of the north-east quarter of section thirty-six fifteen, twelve, being the 'school land,' and one-half of all other property owned by him at the time of his death, in consideration of the faithful service she had done for him theretofore, and for services, labor, and assistance she might give him thereafter, without any very clear definition of the exact kind or quality or character of such labor or assistance, or how long it should last, or when it should cease. This offer so made by her father was accepted, and acted upon by the plaintiff to the extent of thereafter contributing her services and labor about the household and farm as long as she remained at home, and thereafter, from time to time when at home on a visit, and also to the extent of contributing more or less of her earnings for a number of years to perhaps as late as 1908.

"8. That Timothy F. Harrington, during the time Johanna was at home, or assisting him from her earnings, expressed himself at times to friends and neighbors that his daughters, Johanna and Agnes, were both good to him, and that the aid he received from Johanna helped him to hold and save his property, and perhaps to remain in Kansas; and that for what she had done, and had promised to do for him, he would give her the school land and one-half of all other property owned by him at the time of his death. . . .

"10. After the offer of the 'school land' by her father on condition of her service and help, Johanna for many years contributed, while a strong mature woman, to her father's welfare by her labor and by some money contributions. She complied as fully, perhaps, as the vague terms of the offer and acceptance required, and no question was raised by her father or anyone else of non-compliance. . . .

"14. On December 11, 1903, Timothy F. Harrington made a will by the terms of which he gave and devised to his daughter Johanna, the tract of land known as...