Svanburg v. Fosseen
| Decision Date | 25 January 1899 |
| Docket Number | Nos. 11,353-(220).,s. 11,353-(220). |
| Citation | 75 Minn. 350 |
| Parties | CAROLINE H. SVANBURG v. OSMAN FOSSEEN. |
| Court | Minnesota Supreme Court |
O. Mosness and M. L. Fosseen, for appellant.
John M. Rees, for respondent.
Appeal by defendant from an order overruling a demurrer to plaintiff's complaint. The grounds of the demurrer are: First, that the court has not jurisdiction of the subject-matter of the causes of action therein stated; second, that the complaint does not state facts sufficient to constitute a cause of action.
The facts stated in the complaint and admitted by the demurrer are as follows: The plaintiff, whose maiden name was Caroline H. Hanson, when a year and a half old, with two sisters under six years of age, came, with their father, from Europe to America, to live with their uncle and aunt, James and Anna Mary Fosseen. James Fosseen died about December 3, 1894, and his wife died April 5, 1891. Plaintiff and her said sisters lived for several months with their said uncle and aunt after their arrival in this country, and thereafter they lived part of the time with the Fosseens, and part of the time with their father, until about January 23, 1876, when plaintiff's father died. At that time plaintiff was about eight years old, and her sisters were then of the respective ages of ten and thirteen years. Immediately after the death of their said father, the plaintiff and her said sisters, as aforesaid, and the said James and Anna Mary Fosseen, contracted orally by and between each other, in fact and in substance, as follows: That if the plaintiff and her said sisters would come to the house of the said James and Anna Mary Fosseen, as aforesaid, and live with them, and give them their services, as they should be directed, until they had grown up, in consideration thereof, at their death, said James Fosseen and his said wife would give and leave to the plaintiff and her said sisters, as aforesaid, all the property, both real and personal, which they then owned, and which they might own at the time of their death.
Relying upon said promises and agreements, and in pursuance of said contract, as aforesaid, the plaintiff lived at the house of said James Fosseen and his said wife, and gave them her services, as requested, daily and continuously, until she was 21 years of age, when she was married to Charles H. Svanburg, her present husband. The services so rendered by the plaintiff, as aforesaid, cannot be enumerated specifically, but they consisted of housework of every kind and character, all work in and about the house, of every nature, required in housekeeping and in running and maintaining a home, of sewing, washing, ironing, of care and nursing for said James Fosseen and his said wife, and much other and different kind of work done and performed outside of the dwelling house, in many and different ways, as requested by the said James Fosseen and his said wife. During said time, as aforesaid, a strong affection existed between said James Fosseen and his wife and the plaintiff and her said sisters, aforesaid, and the labor and services, as aforesaid, and the relationship herein described, were daily and continuous until the plaintiff was married, as herein alleged. The plaintiff never received any compensation or wages whatever for her said work and services, nor for any part thereof.
These sisters inherited real estate of value of $2,000; and about December 1, 1885, they made an additional contract with the said Fosseens, as follows: That if said plaintiff and her sisters would sell and convey their said real estate to one Swen Anderson, or to some other person whom said James and Anna Mary Fosseen would name, and give the money and proceeds thereof to said James Fosseen and his said wife, said James and Anna Mary Fosseen, and each of them, in consideration thereof, would, by deed or by will, convey or bequeath to said plaintiff and to her said sisters, as aforesaid, all the property which they then had or which they might thereafter acquire, both real and personal, in equal parts, such conveyance to take effect at the demise of the said James and Anna Mary Fosseen, and that said James and Anna Mary Fosseen, in consideration of the premises, would give and leave to the plaintiff and her said sisters, at their death, all the personal property which they should own at their demise. Said deed or will, as aforesaid, was to be left at the death of said James and Anna Mary Fosseen, or the title to all of said property, at their decease, was to be left in this plaintiff and her said sisters, as aforesaid.
Said plaintiff and her said sisters, relying upon said promises and agreements, as aforesaid, were thereby induced to, and did thereupon, sell, deed and convey their said real property, as aforesaid, to one Swen Anderson, at the request and solicitation of said James and Anna Mary Fosseen, at the price and for the sum of $1,300. Nearly all of said sum of $1,300 was upon said December 1, 1885, or immediately thereafter, paid to said James and Anna Mary Fosseen, by and with the consent of the plaintiff and her said sisters. Thereafter the balance of said $1,300 was paid to and turned over by said Swen Anderson to said James and Anna Mary Fosseen, by and with the consent of the plaintiff and her said sisters, and the whole of said $1,300, as aforesaid, was, by and with the consent of the plaintiff and her said sisters, paid to said James Fosseen and Anna Mary Fosseen, and was by them used and appropriated to their own use. Neither of the Fosseens, by deed, conveyance, will or otherwise, in any manner, during their lifetime, made or executed any papers, nor did they, by gift or otherwise, give or leave the title to any of the property which they owned at the time the contract was made, or which they died seised of, as hereinafter alleged and set forth, to this plaintiff, or to her said sisters, or to either of them.
James Fosseen died seised of a large amount of real estate, a portion of which is specifically described in the complaint, situate within the jurisdiction of the court; and it is also alleged in the complaint that the defendant executor has disposed of a large portion of the estate, and now has the proceeds thereof in his hands. After the decease of James Fosseen, the defendant, Osman Fosseen, qualified as the executor of said will, and is engaged in settling the estate in accordance with the terms thereof, but has not distributed any portion thereof to the beneficiaries therein named. He gave a bond for only $5,000, whereas the said estate is of the value of about $25,000.
The relief asked in the complaint is that plaintiff be adjudged the owner of an undivided one-third of the real and personal property of which James Fosseen died seised; that said executor be enjoined from disposing of the same, as he is not financially responsible; that he be enjoined from paying to the beneficiaries in said will named any of said property, or conveying any thereof to said beneficiaries, but that one-third should be conveyed and turned over and paid to plaintiff. The demurrer was overruled, and defendant appeals.
It is proper to state that the other two nieces have each brought similar actions in equity in the district court, praying for the same relief, and a stipulation has been entered into between the parties whereby such actions shall abide the event of the decision in this case.
The two questions more distinctly brought before us for consideration are:
First. Are the contracts, or either of them, set forth in the complaint, within the statute of frauds?
Second. Was the probating of the will a final determination of all the interests of the plaintiff and her sisters in the property of the deceased?
The original statute of frauds was passed in the reign of Charles II.,1 and a majority of the American states have enacted laws substantially, in legal effect, the same as the English statute. Section 4215 of our statute above quoted is an illustration.
Pomeroy, ...
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