Ward v. Hislop

• Decision Date: 10 November 1931
• Docket Number: 27953
• Citation: 238 N.W. 769,122 Neb. 15
• Parties: CAROLINE WARD, APPELLEE, v. WILLIAM J. HISLOP ET AL., EXECUTORS, ET AL., APPELLANTS
• Court: Nebraska Supreme Court

238 N.W. 769

122 Neb. 15

CAROLINE WARD, APPELLEE, v. WILLIAM J. HISLOP ET AL., EXECUTORS, ET AL., APPELLANTS

No. 27953

Supreme Court of Nebraska

November 10, 1931

APPEAL from the district court for Douglas county: FRANCIS M DINEEN, JUDGE. Reversed and dismissed.

Judgment of the district court reversed, and action dismissed.

Syllabus by the Court.

Whether an oral contract of a married woman to devise realty and bequeath personalty is valid as to after-acquired property quæ re?

A parol contract, devising realty and bequeath ing personalty, can be established only by evidence that is clear, convincing and satisfactory.

Appeal from District Court, Douglas County; Dineen, Judge.

Action by Caroline Ward against William J. Hislop and another, as executors of the estate of Mary Ellen Voorhees, deceased, and others. Judgment for the plaintiff, and the defendants appeal.

Reversed, and the action dismissed.

Battelle, Travis & Strehlow, for appellants.

Wear, Moriarty, Garrotto & Boland, contra.

Heard before ROSE, GOOD, DAY and PAINE, JJ., and BEGLEY, District Judge.

OPINION

GOOD, J.

In this action plaintiff seeks specific performance of an alleged oral contract to devise realty and bequeath personalty to her. Defendants are the next of kin of Mary Ellen Voorhees, deceased, executors of her last will and testament, and legatees mentioned in said will.

Plaintiff alleged that in December, 1900, Mr. and Mrs. Voorhees requested of plaintiff's parents the privilege of taking the plaintiff with them to live as their child, and that plaintiff's parents consented to such request and allowed Mr. and Mrs. Voorhees to take the plaintiff on the following expressed conditions: That plaintiff's parents would give to Mr. and Mrs. Voorhees her custody, care and control, in consideration and on agreement that Mr. and Mrs. Voorhees would receive said child as their own, care for her, rear and educate her, and that at their death the plaintiff should receive their entire estate, including all the real and personal property of which they might die possessed. Plaintiff averred that she went to live with Mr. and Mrs. Voorhees at the time and on the terms mentioned aforesaid, and continued to live with them uninterruptedly until they died; that Mr. Voorhees died on the 5th of February, 1925, and Mrs. Voorhees on the 27th of April, 1930.

Defendants denied the making of the oral contract and denied that plaintiff had performed her part of the alleged contract by continuously living with the Voorhees family as a daughter. The trial court found for plaintiff and entered a decree awarding plaintiff one-half of the estate of Mrs. Voorhees. Defendants have appealed.

At the outset it may be observed that, if the contract was made, as alleged, it is of doubtful validity. Mrs. Voorhees was at that time a married woman. There is no showing that she then possessed any separate estate, and the evidence fairly shows that the bulk of the estate which she left came to her under the will of her husband 25 years later.

This court has frequently held: "The contract of a married woman can only be enforced against the separate estate which she possessed at the date of the contract." Kocher v. Cornell, 59 Neb. 315, 80 N.W. 911. See Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N.W. 82; Marsh v. Marsh, 92 Neb. 189, 137 N.W. 1122; Giltner State Bank v. Talich, 115 Neb. 236, 212 N.W. 536. However, since that question was not raised or discussed in the briefs or on oral argument, we refrain from determining the question in the instant case.

At the date of the alleged oral contract, plaintiff was 16 years of age, and Mr. and Mrs. Voorhees had no children of their own. The only witness who testified to the alleged contract was a sister of the plaintiff. According to her testimony, plaintiff, for about two weeks prior to the date of the alleged contract, had been staying in the Voorhees family. With their mother, plaintiff and witness went to the Voorhees home, when, as testified by her, the following occurred: Mrs. Snyder (plaintiff's mother) "wanted Carrie (the plaintiff) to come home with her." The mother said: "'You know Dad and Carrie don't get along,' and Mrs. Voorhees spoke up and said, 'Let her stay with us, make her home with us;' and she turned to Mr. Voorhees, whom they called Dad, and said, 'We would like to have her stay with us, wouldn't we?' and he said, 'We sure would.'" Mrs. Snyder said: "I would like very much to have Carrie come home with me, but if she does not want to, and you will promise that you will take care of her, she can stay." Mrs. Voorhees answered: "'Dad, when we are gone,' she said, 'everything we have will be left to Carrie and Lester, and I will leave one dollar to my brother,' to which Mrs. Snyder said, 'All right, then, I will trust that you take care of Carrie, and I will leave her.'"

The foregoing constitutes the direct evidence of the contract. A number of witnesses testified to subsequent conversations with Mrs. Voorhees, in which she referred to plaintiff as her daughter, and to statements that when she was gone everything would belong to plaintiff. At another time, when the home was being repaired, Mrs. Voorhees is alleged to have said to plaintiff: "You go ahead and fix the house to suit...