Swedish Evangelical Free Church of United States v. Benson

• Decision Date: 01 June 1925
• Docket Number: 10971.
• Citation: 237 P. 165,77 Colo. 370
• Parties: SWEDISH EVANGELICAL FREE CHURCH OF THE UNITED STATES OF AMERICA v. BENSON.
• Court: Colorado Supreme Court

237 P. 165

77 Colo. 370

SWEDISH EVANGELICAL FREE CHURCH OF THE UNITED STATES OF AMERICA v. BENSON.

No. 10971.

Supreme Court of Colorado

June 1, 1925

Rehearing Denied June 22, 1925.

Department 3.

Error to District Court, Weld County; Neil F. Graham, Judge.

Suit by Mrs. Ruth Swanson Benson, formerly Miss Ruth Swanson, against the Swedish Evangelical Free Church of the United States of America and another. Decree for plaintiff, and the defendant named brings error.

Reversed with instructions.

Walter E. Bliss and Ralph L. Dougherty, both of Greeley, for plaintiff in error.

Joseph C. Ewing and Worth Allen, both of Greeley, for defendant in error.

CAMPBELL J.

Ruth Swanson brought this action in equity against the executor of the estate of John Henderson, deceased, and, among other parties, joined with him as a defendant the Swedish Evangelical Free Church of the United States, the sole legatee and devisee under Henderson's will. In view of our conclusion on the merits of the case, it is not important, even though it might be difficult, to denominate the action. No objection by motion or demurrer was interposed by any of the defendants that causes of action or parties defendant had been improperly joined, or that the complaint was otherwise vulnerable. We shall not digress to inquire. The real object of the action, whatever its name, is to make the plaintiff the owner of this estate as the result of an alleged contract between her and the decedent by which, upon a sufficient consideration, he promised to devise it to her. The court found for the plaintiff and upon its findings rendered a decree that such a contract was made specifically enforced it by impressing upon the estate in the hands of the executor a trust in favor of the plaintiff, and required the executor to account to the plaintiff the same as if she had been made the sole devisee and legatee under the will, and the entire estate was set over to the plaintiff, and the church was required as devisee to convey to her by quitclaim deed all the property of the estate. It is well to note that the legal effect of this decree is not only to cancel the will and to enforce the alleged contract, but also to compel the executor to administer the estate for the benefit of the plaintiff. One practical effect--assuming that in any event it can be sustained--would naturally be to put a stop to any further effort by the executor to defend. That probably accounts, at least in a measure, for the fact that all of the parties who were joined as defendants below, except the church, have apparently acquiesced in the decree. At least only the church, the sole Iegatee and devisee, is prosecuting this writ of error.

Though courts have the power to enforce specific performance of oral or written contracts to devise lands and other property, they do not do so except upon the strictest and most satisfactory proof thereof and that such contracts rest upon sufficient consideration, and where, in the circumstances, the plaintiff cannot be compensated by damages for the injury sustained by refusal of the defendant to perform.

This hearing was before the court without a jury. As the general rule is that in such cases, even though the court may have admitted inadmissible testimony, its findings will not be disturbed, if they are sustained by other admissible evidence in the record. Nevertheless we are impressed with the fact that the court was very liberal in admitting evidence tendered by the plaintiff and in one instance testimony of a witness was rejected, while similar testimony of another witness was received. The record discloses that the findings of the court in some particulars were materially affected by questionable evidence. For example, the plaintiff, whose counsel admitted that she was not competent to testify, since the principal defendant was the sole legatee and devisee of the decedent, was permitted to file her own affidavit, ostensibly to show that the letters on which she relied to prove the alleged contract were lost or destroyed, and as a foundation for oral testimony, as to their contents, of other witnesses who had seen and read them, yet this affidavit improperly set forth their contents. While there are authorities apparently holding that an interested party may testify as to the loss of written documents evidencing a transaction with a decedent, he may not, however, testify as to the contents of such lost instruments. 40 Cyc. p. 2328. If the exigencies so required, it might be that the error of the court in this particular would justify a reversal, even though plaintiff's counsel sought to limit the affidavit to the loss, and not to the contents, of the letters. But as we have reached the conclusion, and are entirely satisfied with it, that, if all the evidence which the court permitted the plaintiff to introduce was legally admissible, it falls far short of establishing, either the making of the alleged contract, or that there was a sufficient consideration therefor, or that plaintiff made compliance therewith on her part. It shows that damages resulting from the breach of contract, if any, could be compensated for in money.

It would serve no useful purpose to state the evidence in full. We have read the entire record and have no hesitation in declaring its marked insufficiency. Stated briefly, the plaintiff's complaint, to which there was supporting testimony, alleges that in 1918 she was living in the state of Massachusetts earning her living as a domestic servant. She was of Swedish extraction and had come to this country in 1909. She was a niece of the wife of John Henderson decedent. During the first part of the year 1918 she received various letters, at least four or five, signed...