Overlander v. Ware
| Decision Date | 16 February 1918 |
| Docket Number | 19537 |
| Citation | 166 N.W. 611,102 Neb. 216 |
| Parties | MINERVA OVERLANDER ET AL., APPELLEES, v. PETER WARE ET AL., APPELLEES: JOHN L. CLARK, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.
AFFIRMED.
Alvin F. Johnson, for appellant.
Byron G. Burbank and Amos Thomas, contra.
CORNISH J. SEDGWICK, J., not sitting. DEAN, J., HAMER, J dissenting.
On June 20, 1912, James B. Kelly, an unmarried man, aged 72 years, died intestate. Three sisters, ten nieces and seven nephews are his sole surviving heirs and next of kin. Suit by certain of the heirs to partition his 200 acres of land, making the daughter of defendant John L. Clark also a party, for the purpose of quieting title to 80 acres of the land, some of the heirs having deeded an interest to her, which deed, it is alleged, had been procured by fraud. As the issues were joined, defendant Clark claims to be the owner of all the land under an alleged oral contract made in January, 1891, between Kelly and Clark's father, wherein Kelly promised that if Clark, then 10 or 11 years old, would come from Missouri to Douglas county and live with and care for him as a son would do, until he died, then Kelly would care for and educate him, and arrange it so that Clark would get all his estate when he died. He alleges performance upon his part, but that Kelly did not, pursuant to the oral agreement, afterwards affirmed and renewed with the said Clark, make any arrangements by which his property at the time of his death became vested in Clark. The other heirs deny the making of the contract, allege that Clark is estopped to assert it, and that, being oral, it is void as within the statute of frauds. The trial court found that no contract was made between Clark's father and Kelly by which Clark was to have all of Kelly's property, found that title to 80 acres of the land should be quieted in Clark, in accordance with an agreement had between Clark and Kelly, and that title to the remainder of the land should be quieted in the heirs. All parties appeal.
The evidence is voluminous. An extended discussion of it will not be attempted. We are of opinion that the decree of the trial court should be affirmed.
In considering cases of this character, where one is claiming the estate of a person deceased under an alleged oral contract, the evidence of such contract and the terms of it must be clear, satisfactory and unequivocal. Such contracts are on their face void as within the statute of frauds, because not in writing, and, even though proved by clear and satisfactory evidence, they are not enforceable unless there has been such performance as the law requires. The thing done, constituting performance, must be such as is referable solely to the contract sought to be enforced, and not such as might be referable to some other and different contract--something that the claimant would not have done unless on account of the agreement and with the direct view to its performance--so that nonperformance by the other party would amount to fraud upon him.
It appears from the evidence that Clark's mother died when he was three years old, leaving several children. The baby and some of the other children were distributed among relatives. The father throughout his life was a tenant farmer in indigent circumstances; all of the children having to work out as soon as they were able to work. Kelly was an intelligent, money-making farmer in Nebraska. He first took Clark to his home on request of Clark's older sister, who thought he was not receiving good treatment at the hands of his stepmother. He stayed with Kelly for a time, and after about a year, when he was 10 or 11 years old, went to remain with him. It was at this time, it is alleged, that the original contract was made with Clark's father.
It is the testimony of the relatives, some of them very well-to-do citizens in the community where the Clarks lived, that they never heard of the contract until this suit was commenced. There is not the first bit of direct evidence of the making of such contract. The deceased never made a will, or a deed, or a memorandum, or wrote a letter, or signed any instrument proving or tending to prove such promise. It is nowhere suggested that he desired to violate a contract fairly made. It would seem incredible that, in absence of a desire on his part to defeat Clark of his rights, he should never do anything to fix and make secure those rights. It would be his duty to do so; his common sense would tell him that it was necessary, and, ordinarily a man would do so. Although frequently urged to make deeds of part of his estate, he refused to do it.
The inquiry arises whether, from the circumstances and relations of the parties, it is probable that Kelly would have made the promise, or whether it is unreasonable to believe that the claimant would have performed the service that he did in the absence of the promise. When Kelly took Clark the second time, the boy was glad to go back with him. The relatives approved. No such contract would have been necessary, because the boy was a burden. As a matter of fact, the most fortunate day in Clark's life, financially considered, was the one when his uncle said he could come and live with him. He did go and live with him, and under the supposed contract, wherein it is said that he was to devote his time and services to his uncle, it so happens that after 20 or 21 years of service Clark, still being a young man, is comparatively rich. Under the evidence and the decision of the trial court, he is the owner of 160 acres of valuable land in Douglas county, besides the personal property which he has accumulated while living with his uncle and since. It is apparent from the evidence that his uncle missed no opportunity for the boy's financial and educational improvement. This is not a case where, if we deny the claim, his work and service go unrequited.
On the other hand, it seems extremely improbable that a man of Kelly's shrewdness and ability would have entered into the contract at the time alleged. The father and relatives would be glad, and were glad, to have him take the boy. How imprudent a contract for a man to make under such circumstances, to pledge his whole present and future estate in such a way. It would be reasonable for him to promise to do well by the boy, to take him and help him and remember him when he died if he had been a good boy and faithful to him, but further than that no prudent man would go under the circumstances. He did do that, and has done as much for Clark as ordinary men would do. Clark has no reason to complain of the situation. Kelly was on good terms with his relatives. There is no direct evidence of any quarrel with any of them. As often as once in three or four years he made them long visits.
If Clark had believed, when Kelly died, that under the contract he was the owner of all the property, it is natural to suppose that he would have at once made claim to it upon that ground, as he was in duty and law bound to do if such was his claim. Instead, he makes application that letters of administration be granted, and permits the estate to be administered before asserting his rights. In requesting other heirs to sign deed of the eighty, in accordance with what the trial court found to be the subsequent agreement had between himself and Kelly, he did not give as a reason why they should sign that he was already the owner of the entire property.
The contract and its terms were sought to be shown by some 11 witnesses who had heard Kelly make declarations in his lifetime, containing admissions bearing more or less upon the question. No doubt Kelly thought well of and was attached to Clark, and during the 20 or 21 years that Clark was with him the big-hearted man would occasionally say good things about him and what he intended to do for him, and the witnesses heard him talk. Much of the testimony dated back many years, and the witnesses' recollection of what was said was more or less indistinct in their memory. Much of it goes only to intent, and some of it is inconsistent with the existence of the contract alleged. Kelly refused to make a deed or a will, though frequently urged to do so, and finally promised to go and make a deed to the eighty, which he had promised Clark he would give him if he stayed there with his wife, as soon as he was well enough to go.
It is held by the courts that such evidence is unsatisfactory in its character. "It never amounts to direct proof of the facts claimed to have been admitted by those declarations." Johnson v. Quarles, 46 Mo. 423, 427. 3 Jones' Commentaries on Evidence, sec. 432. See, also, Kinney v. Murray, 170 Mo. 674, 700, 706, 71 S.W. 197. In Peterson v. Estate of Bauer, 76 Neb. 652, 658, 107 N.W. 993, we quote approvingly from Dicken v. McKinley, 163 Ill. 318, 45 N.E. 134, as follows: "Such contracts are looked upon with suspicion, and are only sustained when established by the clearest and strongest evidence"--and also from Kinney v. Murray, supra: "But, the proof of such a contract must be so cogent, clear and forcible as to leave no reasonable doubt in the mind of the chancellor as to its terms and character." So considered, the evidence as a whole does not sustain Clark's contention.
The attitude of Clark in participating in the administration proceedings and in permitting final decree therein, without asserting his rights to any part of the estate except the 80 acres, estops him from asserting ownership of the entire estate. As to that portion of the estate, it amounts to an election on his part to take as heir and not as owner.
We are of opinion that the evidence shows that, at the time Clark was...
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