Nelson v. Glidewell

• Decision Date: 29 February 1952
• Docket Number: No. 33076,33076
• Citation: 155 Neb. 372,51 N.W.2d 892
• Parties: NELSON et al. v. GLIDEWELL et al.
• Court: Nebraska Supreme Court

Page 892

51 N.W.2d 892

155 Neb. 372

NELSON et al. v. GLIDEWELL et al.

No. 33076.

Supreme Court of Nebraska.

Feb. 29, 1952.

Syllabus by the Court.

1. Where a party seeks specific performance of an oral contract for the conveyance of land of a deceased person, the burden is on such person to prove an oral contract, the terms of which are clear, satisfactory, and unequivocal and that the acts of part performance in relationship to the subject matter in and of themselves are such as are referable solely to the contract sought to be enforced and cannot be accounted for on any other reasonable hypothesis.

2. An attorney may testify to factual matters relating to the execution of a will but anything in the nature of a communication is privileged and inadmissible unless waived.

3. When two or more persons employ the same attorney in relation to the same business their communications are not privileged between themselves, even though their interests may be diverse, where the disclosures are made in the presence of all parties concerned, or are intended for the information of all parties.

Torgeson, Halcomb & O'Brien, Kimball, for appellants.

Martin & Davis, Sidney, Beatty, Clarke, Murphy & Morgan, North Platte, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action in equity by Andrew Nelson and Anna Nelson, husband and wife, plaintiffs and appellants, against Helen Glidewell, widow of George H. Glidewell; O. A. Olson, administrator of the estate of George H. Glidewell; and the unknown heirs of the said George H. Glidewell, defendants and appellees.

The action is for specific performance of an alleged oral agreement by which George H. Glidewell, in his lifetime, and Helen Glidewell, whose name was formerly Helen Kennedy, agreed to execute reciprocal and mutual wills each devising to the other his or her property and on death of the survivor to the plaintiffs herein, which wills were to be drawn after the marriage of George H. Glidewell and Helen Kennedy so as to permit bequests totaling $500 to take precedence over the devise to the Nelsons contemplated by the agreement. The alleged agreement was entered into on or about May 8, 1940. The marriage took place thereafter on May 29, 1940.

Among other defenses to the action the defendants denied that any such agreement as was alleged or any enforceable agreement was entered into between the parties.

The cause was tried and at the close of the evidence of plaintiffs the trial court among other findings found that the plaintiffs had failed to prove the existence of a valid and enforceable contract and by decree dismissed plaintiffs' action with prejudice. Motion for new trial was duly filed and overruled. From the decree and the order overruling the motion for new trial the plaintiffs have appealed. There are numerous assignments of error.

The substance of one group of the assigned grounds for reversal is that the court erred in finding and decreeing that plaintiffs had failed to prove the existence of a valid and enforceable contract. In a case such as this where a party seeks specific performance of an oral contract for the conveyance of land of a deceased person, the burden is on such person to prove an oral contract, the terms of which are clear, satisfactory, and unequivocal and that the acts of part performance in relationship to the subject matter in and of themselves are such as are referable solely to the contract sought to be enforced and cannot be accounted for on another reasonable hypothesis. Crnkovich v. Crnkovich, 144 Neb. 904, 15 N.W.2d 66; Lintz v. Apking, 145 Neb. 714, 18 N.W.2d 55; Lunkwitz v. Guffy, 150 Neb. 247, 34 N.W.2d 256; Casper v. Frey, 152 Neb. 441, 41 N.W.2d 363; Busteed v. Sheffield, 153 Neb. 253, 44 N.W.2d 471.

The only evidence of the contract alleged or of any other contract between these parties is the following: 'Q Will you please tell the Court what Mrs. Glidewell said to any of you--to you or to Mr. Kepler or to Mr. Glidewell or to Mr. Nelson in this conversation in May, 1940 when Mr. Kepler was out to your house in the presence of these other people and during the afternoon? A Well, Mr. Kepler come out at 2 o'clock in the afternoon, and she said, 'we want Mr. Kepler to come out because George and I have decided to make up some papers', and I said, 'Oh, you have?', and she said 'yes', and so Mr. Kepler came out and we was not quite through eating, and he told us to finish our meals, and after we finished our dinner Mr. Kepler and Mr. and Mrs. Glidewell went into our front room and shut the door. Q Who was...