Van Natta v. Heywood

• Decision Date: 30 December 1920
• Docket Number: 3502
• Citation: 57 Utah 376,195 P. 192
• Court: Utah Supreme Court
• Parties: VAN NATTA v. HEYWOOD et al

195 P. 192

57 Utah 376

VAN NATTA v. HEYWOOD et al

No. 3502

Supreme Court of Utah

December 30, 1920

Appeal from District Court. Sixth District. Garfield County: H. N Hayes, Judge.

Action by Joseph Van Natta against David L. Heywood, administrator of the estate of Joseph McCullough, deceased, and others. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

R. H Baumunk, of Ogden, J. D. Skeen, of Salt Lake City, and Wm. F Knox, of Beaver City, for appellants.

E. E. Hoffman, of Richfield, for respondent.

CORFMAN, C. J. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

CORFMAN, C. J.

Plaintiff brought this action against the defendants in the district court of Garfield county to have decreed to him the residue of the estate of Joseph McCullough, deceased, after payment of the debts of said deceased, costs and expenses of administration of the estate, and the payment of the sum of $ 500 to the defendant David McCullough.

In substance it is alleged in the complaint that plaintiff is more than 23 years of age; that he was left an orphan at the age of 10 years, when he was taken by Joseph McCullough and Frances McCullough, his wife, to their home at Panguitch, Garfield county, Utah and was kept and thereafter treated by them as their own child; that they promised and agreed with him that if he would continue to live with them they would make a will and devise and bequeath to him all their estate, after administration thereof, subject only to his paying to David McCullough, a brother of the said Joseph McCullough, the sum of $ 500; that Frances McCullough died in 1917, leaving no estate, and at her death Joseph McCullough again promised and agreed with the plaintiff that if he would continue to live with him until he (McCullough) died he would furnish him means for support and maintenance, and that he (plaintiff) would have his estate subject to like conditions; that Joseph McCullough died in 1919; that the plaintiff accepted the offer of the said Joseph McCullough, and entered into possession of all the property of said estate, and at all times worked for the said Joseph McCullough until his death, without compensation, except when plaintiff was drafted into the United States army, during which time the said Joseph McCullough leased the property belonging to his said estate subject to the condition that the said lease should be canceled upon the discharge and return of the plaintiff herein from the army; that upon the retirement of plaintiff from service in the army he returned to the said Joseph McCullough, and thereupon said lease was terminated, and plaintiff again went into possession of the property of said estate, and continued to possess the same and work for and remain with the said Joseph McCullough, without compensation, until the death of said McCullough in January, 1919. Both Joseph McCullough and his wife, Frances, died intestate and without issue. Plaintiff prayed that he be decreed to be entitled to all of the estate of the said Joseph McCullough, deceased, subject only to the payment of the debts of deceased, the costs and expenses of administration of said estate, and the requirement that plaintiff pay to David McCullough the sum of $ 500.

The defendants answered the complaint, denied the agreement set forth therein, and also the services alleged to have been rendered by plaintiff, and as a separate defense pleaded the statute of frauds (Comp. Laws Utah 1917, §§ 5811, 5813, 5817).

The district court found the issues for the plaintiff, and entered its judgment and decree in accordance with the prayer of the complaint, from which judgment and decree defendants have appealed.

Defendants assail the findings of the court on the ground of the insufficiency of the evidence, and contend that the conclusions of law, judgment, and decree are contrary to law, and are without evidence to support them. The findings are substantially the same as the allegations of the complaint.

There seems to be no dispute between the parties but that the plaintiff was taken by the McCulloughs when left an orphan at the age of 10 years, and was kept and treated by them as their own child. However, the defendants contend that the plaintiff wholly failed to establish the agreement alleged to have been entered into between him and Joseph McCullough during his lifetime.

In support of the alleged agreement many close friends and neighbors of the deceased, Joseph McCullough, were produced at the trial, and all testified as to the affectionate regard and esteem the deceased had always maintained toward the plaintiff. Mrs. Elizabeth Eickler, one of plaintiff's witnesses, testified that she had known the deceased for many years, and that she had many conversations with him regarding the disposition of the estate, during which the deceased said to her, "All was for little Joe (plaintiff)--we called him all the time--when he went, when he passed away," and "that deceased had said to her that he had told Joe Van Natta that if he stayed with him as long as he lived and worked for him everything was for him; * * * that he (Joe) had done all he could as a son for him; * * *" that "he had always been good to him, and for that reason he was going to make a will and leave him the property; * * * that he had worked for it"; and "that was the agree he made with Joe; if he stayed with him everything was his."

Thomas Haycock, a witness produced on behalf of plaintiff, testified that he had been for many years intimately acquainted with the deceased, lived a neighbor to him, and that he had held many conversations with the deceased concerning the plaintiff, and that just a few months before the death of deceased a conversation was had, in which the deceased had stated his intention of making a will, and also that on numerous occasions the deceased had said the plaintiff was to have all his property except $ 500 for his brother, David McCullough, in Ireland.

Esta Lynn, another witness, testified that she had lived a close neighbor to the deceased, and that he had said to her that he was going to will his property to the plaintiff, and that he had told the plaintiff if he did the right thing he would get his property.

J. B. Showalter testified that he had been acquainted a long time with the deceased, and as to the disposition he intended to make of his estate. The witness said:

"Well, I was down in his field a few months before Joe McCullough died. I went down there to borrow his hay rake, and Jim Lloyd was there, and while he was there asked him if he had Jim fired. He said: 'No, I rented him the place for three years until little Joe comes back, and by that time Joe will be back, and I am going to turn everything to Joe.' He said: 'All I want out of it is enough to keep me while I live. It doesn't matter whether he pays for it or not, it will all be his when I am gone.'"

This witness also testified of the return of plaintiff and his continuing to live with deceased until his death.

S. M Garvin, also a close friend and neighbor of deceased, testified that the lease had been made subject to the return of the plaintiff from the war, and that plaintiff was to work the farm;...