Warnick v. Warnick
| Citation | 187 N.W. 51,107 Neb. 747 |
| Decision Date | 16 February 1922 |
| Docket Number | 21638 |
| Parties | CHARLES A. WARNICK ET AL., APPELLEES, v. WILLIAM H. WARNICK, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Polk county: EDWARD E. GOOD JUDGE. Affirmed.
AFFIRMED.
Good & Good, W. L. Kirkpatrick and E. E. Stanton, for appellant.
King Bittner & Campbell and Mills, Beebe & Mills, contra.
On January 15, 1919, one William P. Warnick died intestate in Polk county, Nebraska, leaving surviving him his widow, Elizabeth Warnick, and three children, Charles A. Warnick, Emma J. Warnick, and William H. Warnick. This suit was instituted in the district court for said county by Charles A. Warnick and Emma J. Warnick, as plaintiffs, against William H. Warnick, Elizabeth Warnick, and Raymond Cox as administrator of the estate of William P. Warnick, deceased, as defendants, to establish a resulting trust in the property in the possession of William P. Warnick at the time of his death, and to quiet title in the plaintiffs, as tenants in common, to the real estate in controversy.
The plaintiffs' claim is based upon an oral contract, and in their petition it is alleged that on or about the 10th day of December, 1896, the said William P. Warnick was the owner of a certain designated farm, and was residing thereon with his family; said farm with improvements not exceeding in value $ 7,500; that he had personal property not to exceed in value $ 500; that said farm was incumbered by a mortgage of $ 600; that he was dependent upon his children to operate said farm and make a livelihood for the family, and greatly desired that the defendant William H. Warnick, the eldest son, stay with them, which he refused to do; that he became ill-behaved and ill-willed, and unfilial in character, and abusive in word and action, toward his father; that on or about said date he left home and ever since remained unrepentant and away from his parents, except for two or three brief visits prior to the death of his father; that, after said William H. Warnick had left home, plaintiffs' said parents became much worried about operating and keeping said farm and very solicitous that plaintiffs, their remaining children, should take care of them in their declining years, and stay with them as long as they or the survivor of them should live, and help them keep their property together, and, being much grieved over the unfilial conduct of their eldest son, they then entered into an oral contract with these plaintiffs, jointly, that if plaintiffs would remain with said parents and the survivor of them, as the case might be, and help at all times thereafter, to the best of their ability, to make the farm sustain the family, and ultimately take charge and manage the same to their interests and for the common good of themselves and these plaintiffs, so that said parents, or the survivor of them, should not want for sustenance and filial care in their declining years, then all the property, both real and personal, that their father might have and leave at his death should then and upon that event become the common property of these plaintiffs (provided that, in case their mother survived him, these plaintiffs should continue to care for and provide for her in the same manner, including her last sickness and burial) and to the exclusion of their said unfilial son, the defendant William H. Warnick, from any share therein or thereto; that, to keep these plaintiffs steadfast and faithful in the performance of said contract on their part to be kept and performed, the said parents or either of them often repeated to plaintiffs their said promises and agreements and mentioned and spoke of the same, in plaintiffs' hearing, to others at many and different times that that was the arrangement between them and plaintiffs, and that they would fix it so that at the death of the father all their property would go to these plaintiffs, and their eldest son would get none of it. Plaintiffs, relying thereon, have truly and faithfully kept and performed said contract to the satisfaction of both of said parents and to the best of plaintiffs' ability in everything so required of them, fully and completely, up to the time of the death of the said William P. Warnick, their father.
The defendant Elizabeth Warnick filed an answer in which she admits in entirety all of the allegations of the plaintiffs' petition, and alleges that said action was brought by the plaintiffs with her consent and full knowledge, and to satisfy her wish and desire that the agreement between herself and husband and the plaintiffs may in equity and justice be fulfilled according to the terms thereof, which are exactly as pleaded in the plaintiffs' petition, and that the plaintiffs may be decreed to be the absolute owners of the property which said William P. Warnick held in his name at the time of his death.
The appellant, William H. Warnick, by answer and cross-petition, denies the alleged contract and other material averments of the petition, avers that the alleged oral contract was void under the statute of frauds, and prays for partition of said real estate.
The decree was for the plaintiffs, and the defendant William H. Warnick appeals.
The appellant contends that the court erred in admitting the testimony of Elizabeth Warnick, the widow, and Mrs. Bert Warnick, wife of Charles A. Warnick, as to the making of the contract. It is probable that Elizabeth Warnick took part in some of the conversations concerning which she testified; but the record also shows that she took no part in many of the conversations as to which her testimony related. It also appears that the witness, Mrs. Charles A. Warnick, had no part in the conversation concerning which she testified. Although the witness may have a direct legal interest in the result of a suit, still he is a competent witness against the representative of a deceased person as to any conversation between the deceased and a third person, in which the witness took no part. DeWulf v. DeWulf, 104 Neb. 105, 175 N.W. 884; McNea v. Moran, 101 Neb. 476, 163 N.W. 766; In re Estate of Powers', 79 Neb. 680, 113 N.W. 198; Kroh v. Heins, 48 Neb. 691, 67 N.W. 771.
After the evidence just referred to was received, the appellant offered in evidence, without any reservation or limitation as to purpose, the plaintiffs' petition and the answer of the defendant Elizabeth Warnick. These documents set out the transactions concerning which the testimony of Elizabeth Warnick and Mrs. Charles A. Warnick, complained of, was offered. Section 7894, Rev. St. 1913, specially excepts from the provisions of that statute the testimony of such a witness where the adverse party shall have introduced a witness who has testified in regard to such transaction or conversation. Whether the testimony of the witnesses was objectionable when offered or not, such testimony was made competent through the action of the appellant in introducing evidence of the same transaction after the testimony of such witnesses had been received. Bangs v. Gray, 60 Neb. 457; Cline v. Dexter, 72 Neb. 619, 101 N.W. 246.
On the part of the appellees it is contended that the petition and answer of Elizabeth Warnick having been offered in evidence by appellant without any reservation or limitation as to purpose for which offered, and that the appellant is bound by the allegations therein not rebutted or controverted by other evidence. The rule in such cases appears to be that, where a party to a suit introduces in evidence his adversary's pleadings without any reservations or limitations as to the purpose for which offered, all the statements in such documents, like other admissions, are to be taken together, what makes for the pleader, as well as what makes against him; and in such case, where the allegations of such pleadings are not rebutted or controverted by other evidence, such allegations will stand as admissions. Portland Body Works v. McCullough Motor Supply Co., 119 N.E. 180; Yates v. People, 207 Ill. 316, 69 N.E. 775; McCord v. Durant, 134 Pa. 184, 19 A. 489; Chicago & A. R. Co. v. Harrington, 192 Ill. 9, 61 N.E. 622; Baskett v. Jones, 189 Ky. 391, 225 S.W. 158.
It appears from the evidence that for several years prior to arriving at the age of majority the appellant, William H Warnick, was given to quarreling with his father, and that he was unfilial in his attitude. It is suggested in the appellant's brief that the disagreements were due to certain idiosyncrasies of temper and temperament of the father. So far as the record discloses, we believe the only fair conclusion is that the trouble was due to the...
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