Slover v. Harris

• Decision Date: 10 September 1957
• Docket Number: No. 2756,2756
• Citation: 314 P.2d 953,77 Wyo. 295
• Parties: James E. SLOVER and Thomas A. Slover, Plaintiffs and Appellants, v. Earl E. HARRIS and B. E. Harris, Executors of the Estate of John Elmer Harris, Deceased; Clarence D. Harris, Marie Bistle, Quinter C. Harris, Earl E. Harris, Willard V. Harris and Blanch E. Harris; Curtis Harris Cremer and Eva Cremer Wilson; and Ivah M. Harris, Defendants and Respondents.
• Court: Wyoming Supreme Court

Page 953

314 P.2d 953

77 Wyo. 295

James E. SLOVER and Thomas A. Slover, Plaintiffs and Appellants, v. Earl E. HARRIS and B. E. Harris, Executors of the Estate of John Elmer Harris, Deceased; Clarence D. Harris, Marie Bistle, Quinter C. Harris, Earl E. Harris, Willard V. Harris and Blanch E. Harris; Curtis Harris Cremer and Eva Cremer Wilson; and Ivah M. Harris, Defendants and Respondents.

No. 2756.

Supreme Court of Wyoming.

Sept. 10, 1957.

Alfred M. Pence, Laramie, for plaintiffs and appellants.

Corthell & King, Laramie, John A. King, Laramie, for defendants and respondents, Curtis Harris Cremer and Eva Cremer Wilson.

Before BLUME, C. J., HARNSBERGER, J., and HARKINS, D. J.

District Judge HARKINS delivered the opinion of the court.

John Elmer Harris and Grace A. Harris were husband and wife for many years. Grace died on July 21, 1953. John Elmer Harris married the defendant Ivah M. Harris on June 19, 1954. On June 28, 1954, John died leaving an estate consisting of real estate valued at $62,266.58, livestock valued at $38,706, and money and other personal assets valued at $82,948.99, or a total estate of $183.921.57, as shown by the inventory and appraisement. John Elmer Harris, hereinafter usually referred to as testator, left a will substantially as follows:

'* * * That I John Elmer Harris * * * do make, publish, and declare this my Last Will and Testament, hereby revoking any and all Wills * * * by me heretofore made.

'I

'I direct that my body be decently buried * * *.

'II

'I direct that all my just debts and funeral expenses be paid * * *.

'III

'I give devise and bequeath unto Clarence D. Harris * * *; Quinter C. Harris * * *; Earl E. Harris * * *; Willard V. Harris * * *; and Blanch E. Harris * * *; my brothers the sum of One Hundred dollars * * *; and to my sister Marie Bistle * * * the sum of One Hundred dollars * * *.

'I make this bequest being mindful of my relationship and estate, realizing that they are amply able to care for themselves and have not, in any way, assisted me or my late wife in accumulating such property as I may possess at the time of my death.

'IV

'I give devise and bequeath unto Curtis Harris Cremer, my nephew and Eva Cremer Wilson, my niece, and their heirs * * * childen of my late sister * * * all of my estate of whatsoever nature or kind share and share alike, reserving however therefrom a life estate to James E. Slover and Thomas A. Slover as set forth in the following paragraph.

'V

'I give devise and bequeath unto James E. Slover and Thomas A. Slover, or the survivors of them, share and share alike, a life estate in all of my ranch property situated in Albany County, Wyoming; together with the livestock thereon and all ranch equipment, household goods and accessories; and charge them with the duty and responsibility to promptly pay all taxes, assessments of every kind that may be charged against said ranch property, and the punctual payment of all debts and obligations incurred by them, so that said life estate may not, in any way, be jeopardized; and in event they shall neglect, fail or refuse to pay any of the above obligations that then, in that event, the interest herein devised shall cease and the remaindermen shall be entitled to accelerate their right of title and possession and,

'VI

'I give devise and bequeath, in addition, to James E. Slover and Thomas A. Slover, all livestock that I may possess at the time of my death subject to the following conditions; that said herd of cattle or sheep or both, shall be maintained at the approximate number at all times and in order that they may be able to operate said ranch in a proper manner, I do hereby give * * * them the sum of Five Thousand dollars * * * each for their personal expenses and the expense of operating said ranch until returns may be obtained therefrom, and

'In addition I charge James E. Slover and Thomas A. Slover with the duty and responsibility of operating said ranch in a husband like manner, looking after and caring for said livestock in a ranchman's like manner, and if they should neglect, fail or refuse to properly operate said ranch and livestock them their interest hereby created shall cease and the remaindermen shall be entitled to immediate possession and title * * *.

'Reserving, however, thereform one-half (1/2) of the mineral leases, bonuses, and rentals.

'VII

'In order that there may be no misunderstanding as to my intention, I give devise and bequeath unto Curtis Harris Cremer and Eva Cremer Wilson, aforesaid, all of the rest, residue and remainder of my estate of whatsoever nature of kind, including any and all personal effects or jewelry of my late wife, Grace or myself, share and share alike, and charge them with the personal responsibility of dividing the personal effects amicably between them, and all known or unknown property of which I may be entitled at the time of my death.

'VIII

'I hereby direct that all inheritance taxes be paid from the rest, residue, and remainder of my estate and that the devises herein made, shall be net and clear of all taxes.

'IX

'I hereby appoint * * * Earl E. Harris * * * and Blanch E. Harris * * * executors.'

The will, dated December 8, 1953, was admitted to probate and defendants Earl E. Harris and B. E. Harris were appointed executors. Plaintiffs, James E. Slover and Thomas A. Slover, devisees of the life estate in said will, presented a claim against the estate and upon rejection commenced this action naming the executors, the other beneficiaries under the will, and Ivah M. Harris as defendants. Defendant Ivah M. Harris, widow of testator, settled the case after the trial concluded, but before judgment was rendered. Consequently she is not involved in this appeal.

Plaintiffs' petition states three alternative causes of action. The first cause alleges in substance: That in the fall of 1925, the testator and his wife Grace A. Harris orally agreed with plaintiffs that if plaintiffs would stay with them, work on and operate their ranch for the lifetime of the Harrises, without compensation other than the necessities of life, in consideration thereof the Harrises, who were childless, would treat plaintiffs as sons, and would upon death will all of their property to plaintiffs as their absolute property, to which proposal plaintiffs agreed; full performance by plaintiffs together with facts supporting the allegation; the making of a joint and mutual will by the testator and Grace A. Harris on January 14, 1947, and the probate thereof upon the death of Grace A. Harris; that the testator' will is invalid because it (1) violates the joint and mutual will aforesaid, and (2) because it is in violation of the alleged oral agreement. The first cause sets out also that testator's will was admitted to probate in the District Court of Albany County, Wyoming, on July 31, 1954, and the prayer is that the will be declared invalid, and that the oral agreement be specifically enforced by impressing a trust on the property.

In their second cause plaintiffs claim damages for breach of the oral contract to the extent of the value of the estate property, and in the third alternative cause, in the nature of quantum meruit, they claim the reasonable value of their services alleging that the value is not measurable by pecuniary standards, 'but which was of the value of $150.00 per month, or more, together with interest thereon,' totaling $221,400.

Defendants Cremer and Wilson, the only defendants involved in this appeal, generally denied the allegations on the first two causes of action and affirmatively alleged, as to the third cause, that plaintiffs were compensated under testator's will.

Plaintiff James A. Slover was called as a witness, and following a few preliminary questions counsel for defendant Ivah M. Harris objected to any 'testimony from either plaintiff as to any transaction with John Elmer Harris or Grace A. Harris during their lifetimes. We think that the statute presents an absolute disqualification of a party to testify.' The court immediately overruled the objection. Argument on the law ensued, with counsel for these defendants actively participating, resulting in a ruling as follows: 'The objection will be overruled subject to reconsideration by the court at a later time. If I find during review of the matter, prior to the decision, that I think the evidence has been wrongly admitted, I will so state and so hold; but subject to that we will proceed.'

In the judgment entered, the trial court ruled that 'Section 3-2603, W.C.S.1945, prohibits Plaintiffs from testifying in the cause, and renders the testimony of each of the Plaintiffs incompetent.' Further that the incompetency 'is not waived by the interrogatories and answers thereto, filed but not introduced as evidence in this case; and the testimony of Plaintiffs is hereby stricken.' The court found against the plaintiffs on the first two causes adjudging as follows:

'Plaintiffs, if they elect not to take under the will * * * heretofore probated in this County, shall have and recover from the estate * * * and from the interests of each of the parties hereto in said estate, as full and complete settlement to June 28, 1954 * * * of all their rights in and to the said estate, the sum of * * * $127,294.80 * * *. Plaintiffs, if they elect to take under the will * * * heretofore probated * * * shall be deemed to have, by the acceptance thereof, received payment for their services * * *.'

Plaintiffs appeal claiming in substance that the court erred in not finding for them on the first two causes of action, and in requiring them to elect. Many questions are raised and extensively briefed and argued by the parties. We shall dispose of them in the order presented. Plaintiffs claim error in the striking of testimony. Section 3-2603, W.C.S.1945, reads:

'A party shall not testify where the adverse party is * * * an executor or administrator, or claims or defends as heir, grantee, assignee, devisee or...