Pangarova v. Nichols

• Decision Date: 02 November 1966
• Docket Number: No. 3465,3465
• Citation: 419 P.2d 688
• Parties: Tsetsy PANGAROVA, Appellant (Plaintiff below), v. Nicke N. NICHOLS, Executrix of the Estate of Nick A. Nichols, Deceased, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 688

419 P.2d 688

Tsetsy PANGAROVA, Appellant (Plaintiff below), v. Nicke N. NICHOLS, Executrix of the Estate of Nick A. Nichols, Deceased, Appellee (Defendant below).

No. 3465.

Supreme Court of Wyoming.

Nov. 2, 1966.

Ernest Wilkerson and Hawley M. Kilpatrick, Casper, for appellant.

Harry E. Leimback and Robert Jerry Hand, Casper, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff commenced an action against the defendant as executrix of the estate of Nick A. Nichols, deceased, to recover damages for a breach of contract purportedly made by deceased in his lifetime to adopt plaintiff and make her his heir. The case was tried with a jury present, and at the conclusion of the plaintiff's evidence the trial court sustained the motion of the defendant for a directed verdict and entered judgment accordingly. From the judgment plaintiff appeals.

The action taken by the trial court is to be viewed under the prevailing rule that the evidence offered by plaintiff will be taken as true with all the reasonable inferences and intendments to be drawn therefrom. Hawkey v. Williams, 72 Wyo. 20, 261 P.2d 48, 55; 73 Wyo. 463, 281 P.2d 447.

By way of general information concerning the controversy, the record discloses that the decedent came to this country from Bulgaria in the year 1913. He left behind a brother, Marin, who was married. Plaintiff is the youngest child of the brother and his wife. The decedent settled in Casper, Wyoming, became a naturalized citizen, and in the year 1929 married his first wife, Marie. The couple had no children. Over the years decedent prospered and at the time of his death left an estate valued at approximately $162,000. Sometime prior to the year 1947 the decedent and his wife Marie became interested in bringing plaintiff to America, and commencing in about the year 1947 there was mutual correspondence between the decedent, the plaintiff, and decedent's brother Marin toward that end. Understandably, Bulgaria being a Communist country, difficulty was encountered in arranging for plaintiff to come to the United States, and there was a delay of several years. In the meantime decedent's first wife, Marie, died in February 1955. In June 1956 decedent, who was then 69 years of age, married the defendant, who was then 35 years of age. Eventually the obstacles preventing plaintiff from coming to the United States were overcome and she arrived here in January 1957. She was met by the decedent and the defendant at the airport in Casper and taken to their home. She remained there for a period of approximately one month when, because of conditions existing in the home upon which we shall elaborate further, she left the home and took up residence in an apartment secured for her by the decedent. She remained there for approximately one and a half years, at the end of which time she moved her residence to Denver, Colorado, and did not again see the decedent. The decedent died testate in the year 1962, and by will all of his property was left to the defendant. The within action was commenced on March 20, 1963.

The claim of plaintiff is that decedent, as disclosed by the correspondence mentioned and other circumstances, made an offer that if plaintiff would come to the United States he would adopt her and make her his heir; that plaintiff accepted such offer and performed or stood ready to perform all of the conditions imposed upon her by the resulting contract; and that the contract was breached by the decedent in disposing of his property contrary to such agreement, all to the damage of the plaintiff.

The answer of the defendant to the complaint was in substance a general denial, and no affirmative defenses were alleged. However, at one of the three pretrial conferences held in the matter defendant stated her contention to be that there was no contract entered into between the deceased and plaintiff; but should it be determined that such a contract was entered into, it was that plaintiff was to come here and take care of decedent for the rest of his life, and inasmuch as that was not done plaintiff failed in her performance under the contract and could not recover.

The trial court in stating its reasons for directing the verdict took the view that the letters upon which plaintiff relied did not fix the terms of the agreement with sufficient definiteness; that proof of a contract 'of this nature msut be direct and definite'; that there was no proof of such a change in position or action on the part of plaintiff 'that to deny relief would amount to fraud'; that there was no performance; that she left the home of decedent to avoid disharmony in the home; that her coming here 'on her uncle's money (was) not consideration that she put up.' Upon a careful review of the record, we are convinced that the trial court was under some misapprehension as to just what the burden of plaintiff was in making out a prima facie case.

For example, we briefly refer to the last two reasons assigned. The ruling that plaintiff had left decedent's home to avoid disharmony is in substance a holding that plaintiff abandoned the contract. That was affirmative defensive matter in avoidance of the contract. Such matter was not pleaded by the defendant as required by Rule 8(c), W.R.C.P., and consequently was not an issue in the case. The same thing is true of the failure of consideration. Furthermore, the removal of an alien from the land of his birth and from his parents and relatives to the United States has, under circumstances quite similar to the case here, been held to be a sufficient consideration. 1 Page on Wills, § 10.6, p. 457 (1960), and the cases there cited.

Largely determinative of the disposition to be made of the other grounds assigned are questions that relate to some sixty letters written by the deceased to the plaintiff, to his brother Marin, or to both, upon which plaintiff relied as disclosing the intention of decedent and as evidence of the offer made by decedent. Therefore, it will be helpful first to dispose of the matter of the letters. The letters were in the Bulgarian language. The parties stipulated that the letters were written by the deceased and that the translation into English appended to the letters was substantially correct. Nevertheless, at the time these letters were offered the defendant objected that no proper foundation had been laid for the reason that there was no evidence that the letters were 'received by plaintiff, nor * * * ever mailed, nor that she ever relied upon the same, if the same constituted a contract.' Defendant also objected that the letters were hearsay, incompetent, irrelevant, immaterial, and in contravention of the Deadman's Statute. The objections seem to have been sustained in part and overruled in part by the trial court's ruling that the letters would be admitted for the limited purpose of 'showing intention and only as a statement against interest, being in his (decedent's) handwriting.' We are not persuaded that the court was warranted in so limiting the proferred written evidence. In all fairness we can understand the trial judge's concern in, as he put it, firing 'a mass of papers of this kind (at the jury) and say * * * 'you write this contract. " A large number of the letters had little, if any, probative value. Yet, a review of the letters will disclose, without too much difficulty, language tending to establish that an offer as claimed by plaintiff had been made in terms sufficient as a matter or law to form a contract, if accepted by the plaintiff. We shall comment on this further. A number of the letters were also material on whether or not the claimed offer, before acceptance, had been modified or withdrawn. Some of the letters, as the trial court recognized, were material for other purposes. Consequently, with respect to the letters, we agree with plaintiff that the court erred in attempting to limit the purpose of the offer; provided, of course, that a proper foundation had been laid.

As we understand the court's ruling, it did overrule the objection as to foundation and we think properly so. Plaintiff's lips as to receipt of the letters were sealed by the death of the writer. That, however, would not prevent proof of the mailing and receipt thereof by other evidence. What was the proof? In addition to the stipulation that the letters were in the handwriting of the decedent and that the translations were substantially correct, the record discloses that the letters were in the possession of the plaintiff; that there was mutual correspondence extending over a period of several years; a substantial number contain acknowledgments by each of the receipt of letters written by the other; and each letter bears a date upon which it was written. Under the authorities there can be little question that a proper foundation was laid. Metropolitan Life Ins. Co. v. Armstrong, 8 Cir., 85 F.2d 187, 194; Gosney v. Costigan, 326 Mo. 1215, 33 S.W.2d 947, 925; Scott's Ex'r v. Beland, 114 Vt. 383, 45 A.2d 641, 646.

Defendant's contention that the letters were not admissible because there was no proof that plaintiff had relied or acted upon the letters is wholly without merit. First, the objection states no proper ground for excluding the letters as evidence of the contract. Hendrix v. Pique, 237 Ala. 49, 185 So. 390, 394. Secondly, it overlooks direct and circumstantial evidence to the contrary.

We now turn to what these letters and other evidence tend to prove.

In a letter to plaintiff dated December 19, 1946, decedent said he was inquiring about procedure for obtaining a passport for her to come to America 'and stay for always here if you are agreed, and your parents are agreed.' Then in a letter to plaintiff and her mother and father dated May 28, 1947, decedent said, 'I think right after Tsetsy (plaintiff) comes here to us we will adopt her or transfer the property...