Goodwin v. Casselman ( 1924 )

This is an action to determine adverse claims and is here for trial de novo. It arises out of the following facts: Prior to the 16th day of September, 1921, Mary Cole and Joseph Goodin resided in Braddock, North Dakota. Mary Cole was an aged woman of some means, having a house and some personal property in Braddock and a considerable amount of real estate in the vicinity; Goodin was a single man in middle life. For some six or seven years Goodin had lived with Mary Cole, apparently doing odd jobs for her and occasionally working for other people. He ministered to the personal wants of Mary Cole at such times as she would need assistance on account of illness or her enfeebled condition. Prior to or on the 16th of September, 1921, one De France prepared a certain contract between Mary Cole and Joseph Goodin and likewise a purported will, and on that day he, at the request of Goodin, took the proposed contract and will to the house of Mary Cole. There were also present in the house at the time, E.F. Savage, the village postmaster, and one Sempel, who had been called there by Goodin. De France read the papers to Mary Cole. Then she asked Savage to read them, and as he was reading the contract she interrupted him with the statement, in substance, that she wouldn't sign them then. There were some further remarks to the effect that she had given Goodin an automobile; that he had worn it out; that he would be, or had been, paid for what he had done for her; and that there were some other people to whom she desired to make some presents. There were no papers executed at that time. They were left on the table and were picked up by Goodin. Mary Cole was intending to go to a hospital for treatment, and plans had been made for her and Goodin to go to Bismarck that day for such purpose. It was nearing train time when the persons who had come to witness the contract and will left the house. Goodin borrowed ten dollars on Mary Cole's credit to pay the expenses of the trip. After boarding the train and when they were about seven miles out of Braddock, Goodin informed one Atkins, a lawyer who was riding in the same coach, that Mary Cole desired to see him; whereupon he went to the seat occupied by Mary Cole and talked with her concerning the business which she proposed. She had him look over the papers that Goodin had brought along and he explained to her their legal effect. Atkins asked her why she had not signed the papers in Braddock and she answered that there were too many around that she didn't want to know her business. When she indicated a desire to sign them Atkins called another witness and the papers were executed on the train. Following are the papers:

This agreement, made this 16th day of September 1921 by and between Mary Cole, Braddock, N. Dak. and Joseph Goodin, Braddock, N. Dak.

Witnesseth, that the said party of the first part, in consideration of the promises and agreements hereinafter mentioned, on the part of the party of the second part, to be kept, done and performed, does hereby agree to convey by her last will and testament, unto the said party of the second part, his heirs or assigns, all the following described real and personal property situated in Emmons and Burleigh Counties:

South one half of section (14), in township one hundred thirty six (136), Range Seventy-five (75), containing Three Hundred Twenty Acres more or less, Emmons County, North Dakota. Lots (8) eight, (9) nine and (10) of Block (2) Two, also the East (30) Thirty feet and the West (110) One Hundred Ten feet of Lots (11) Eleven and (12) Twelve of Block (2) Two of the Village of Braddock, Emmons County, North Dakota. Part of Outlet A in the South East (SE 1/4) Quarter and part of Outlet E in the (SE 1/4) all in Section (27), Township (136) One Hundred Thirty Six, Range (75), Emmons County, North Dakota. South East One Quarter (SE 1/4) of Section (20) Twenty, Township One Hundred Thirty Eight (138), Range Seventy Eight (78), containing One Hundred Sixty Acres more or less, Burleigh County, North Dakota. Personal property situated in the County of Emmons, North Dakota as follows: Five (5) head of horses, One Ford Touring Car, One wagon, One Disc.

In consideration of which the party of the second part agrees to provide and care for the said party of the first part during the remainder of her natural life, also agreeing that all right and title to property described shall be and remain in the party of the first part.

The said party of the second part further agrees to assume any and all debts, obligations of the said party of the first part, and in the event of his receiving title to property described, to fully pay and satisfy the same.

It is further agreed that the said party of the first part shall cause to be executed her Last Will and Testament in accordance with agreement hereinbefore written.

In testimony whereof, both parties have hereunto set their hands and seals this 16th. day of September, A.D. 1921.

Mary Cole. Joe Goodin.

Signed, Sealed and Delivered in the presence of Arthur B. Atkins. A.B. Currier. STATE OF NORTH DAKOTA} County of Burleigh }ss. }

On this 16th. day of September, A.D. 1921, before the undersigned a Notary Public within and for said County, personally appeared Mary Cole and Joseph Goodin known to me to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their own free act and deed.

Arthur B. Atkins Notary Public, North Dakota. My Commission expires July 26, 1927.

LAST WILL. I, Mary Cole of the Village of Braddock in the County of Emmons and State of North Dakota of the age of eighty three years, and being of sound mind and memory, do hereby make, publish and declare this my Last Will and Testament, in manner following, that is to say:

First — It is my will that my funeral expenses and all my just debts be fully paid.

Second — I give and bequeath to Joseph Goodin of the County of Emmons, State of North Dakota, the following described real and personal property, to wit: South One Half of Section (14) Fourteen, in Township One Hundred Thirty Six (136), Range Seventy Five (75). Lots (8) Eight, (9) Nine, (10) Ten, also the East thirty (30) feet and West One Hundred Ten feet (110) of Lots (11) eleven and (12) Twelve, in Block (2) Two in the Village of Braddock, Emmons County, North Dakota. Part of Outlet A in the South East Quarter (SE 1/4) and part of Outlet E in the South East Quarter all in Section (27) Twenty Seven, Township One Hundred Thirty Six (136), of Range Seventy Five (75), Emmons County, North Dakota. South East One Quarter (SE 1/4) of Section (20) Twenty, Township One Hundred Thirty Eight (138), Range Seventy Eight (78), Burleigh County, North Dakota. All my personal property now situated in Emmons County, North Dakota. Notes as follows: L.P. Weber $260.00, Fred Nichols $100.00, Wm. Koenig $100.00, W.S. Casselman $160.00, A.N. Ellingson $25.00.

Lastly — I hereby nominate and appoint H.O. Batzer, Hazelton, N. Dak. to be the executor of this my Last Will and Testament, hereby revoking all former wills by me made.

In Witness Whereof, I have hereunto set my hand and seal the 16th day of September in the year of our Lord one thousand nine hundred and twenty one.

Mary Cole (Seal)

The above instrument, consisting of two sheets, was now here subscribed by Mary Cole, the Testatrix, in the presence of each of us, and was at the same time declared by her to be her Last Will and Testament, and we, at her request, sign our names hereto in her presence as attesting witness.

Arthur B. Atkins of Napoleon, N.D. A.B. Currier of Bismarck, N.D.

The contract was delivered to Goodin and the will was retained by Atkins. When the train reached Bismarck Mary Cole was taken to a hospital and Goodin returned to Braddock where he proceeded to take care of some horses and chickens belonging to Mary Cole and to look after some hay on a quarter section belonging to her, situated some distance away in Burleigh County. During the following ten days he hauled several loads of hay to Bismarck, each time calling on Mary Cole. It seems that she remained at the hospital but a few days, leaving there to stay at the home of W.S. Casselman in Bismarck. On September 23rd she executed another will in which she bequeathed to two brothers and three sisters, "if they are living and can be located," the sum of five dollars; to Joe Goodin of Braddock the sum of five dollars, a Ford automobile and a bedstead and mattress which he had been using; then followed three bequests amounting to $250; and all the residue of her property was devised and bequeathed to Ella O. Casselman of Bismarck. Mary Cole died in Bismarck November 2, 1921, leaving certain heirs at law who are not mentioned in either will and with whom, apparently she had had no communication for many years. Both wills were offered for probate in Emmons County and the later one was probated over the objection of the heirs and of Goodin. The plaintiff herein has not appealed from the judgment of the county court admitting the later will to probate. The trial court entered a judgment in this action sustaining the right of the plaintiff under the contract and will and there are separate appeals from the judgment so entered; one by the executor and certain of the beneficiaries under the second will, and the other by the heirs of Mary Cole.

Three main propositions are advanced on this appeal; first, that the plaintiff is concluded by the judgment of the county court admitting the second will to probate, from which judgment he has not appealed; second, that as the county court is vested with exclusive original jurisdiction in probate and testamentary matters, the district court was without jurisdiction to entertain this action; and third, that certain errors were committed in the exclusion of evidence offered which would have had a tendency to disprove the performance by the plaintiff of the alleged contract or the absence or failure of consideration.

It would seem to be clear that the first two propositions are without merit. Obviously, the jurisdiction of the county court in probate matters is a jurisdiction, so far as wills are concerned, to determine whether or not a will that is offered for probate has been executed in the manner required by statute, by a person who at the time had testamentary capacity, and that such person had exercised his right to make a will without being unduly influenced by others. It is not concerned with the legal effect of contracts insofar as they might give rise to claims adverse to claimants under the will. The probate court can not try title to property. Finn v. Walsh, 19 N.D. 61, 121 N.W. 766; Torgerson v. Hauge, 34 N.D. 646, 3 A.L.R. 164, 159 N.W. 6. The plaintiff's claim in this case is derived from the contract. If this contract be valid and if it has been performed, to the extent of the execution of a will, it gives rise to a claim to the property of the deceased, which, in the absence of rival claims, might be successfully asserted in the probate court. But when such a claimant is met in probate court by others who assert interests derived from a later will, valid for all purposes of probate, his claims can only be vindicated in a court having jurisdiction to litigate and determine the contract rights.

Concerning such contracts as the one involved here, 1 Schouler, on Wills, Executors Administrators, 6th ed. § 694, says:

"Contracts to leave by will seem to be growing in favor and there are many recent cases on the subject. Such an arrangement appeals to many as it leaves them full control of their property during their lives and where the testator is aged and the estate is small it is often the only way the testator can secure for himself care and attention during his declining years, it operating thus as a species of annuity. It is perfectly well settled that such contracts are legal and binding, the only difficulties arising in regard to their construction and enforcement.

"One may make a valid contract to leave his property by will in a certain way, if the minds of the parties meet, but the contract, to be valid, must not be in restraint of marriage. The intent of the promisor must be measured as of the date of the alleged contract. . . ."

Speaking of a will based upon such a contract, the same author says (§ 691):

"As a matter of legal principle, then, we must admit that there may be in effect wills revocable and wills irrevocable; that all testamentary dispositions are not absolutely and completely in the nature of a gift by the disposer; that a testator's intention must bend to imperious circumstances which interfere with his free, ambulatory disposition, and mould, partially, or it may be wholly, the settlement of the estate which he leaves at his death.

"We may perhaps fairly assume as a general principle recognized in equity, that full specific enforcement will not be applied in cases of this sort, where the contract made is vague and uncertain for proof, or the remedy sought is harsh or oppressive, or unjust to innocent third parties; nor so as to extend a specific enforcement beyond the scope of the actual obligation."

And, speaking further of the consideration necessary to support such a contractual disposition, the author says, (§ 700):

"A contract to leave property by will must be founded on a valuable consideration. This rule of valuable consideration we find practically applied where one renders valuable services on the promise of a legacy. One who boards, nurses or cares for, some aged or feeble person, does so, in many instances, on the promise or expectation of a legacy, or it may be, the whole surplus of the estate. . . . The most common instances of valid consideration for a contract to leave by will are those where the consideration is services, for care of decedent.

"The consideration for such a contract is also sufficient where it is for money loaned, for making improvements on the land of the promisor, or execution of notes at a high rate of interest, past favors," etc.

See also Underhill, Wills, § 289, and 25 R.C.L. 311.

In this case the evidence is clear that Mary Cole knew both the contents and the legal effect of the contract and the will executed by her, and the evidence will not support a finding that she was imposed upon by the beneficiary. So it must be assumed that the Goodin contract and will fairly expressed her intention at the time they were executed. It is true that by reason of subsequent events — principally the fact of her death occurring while away from home for the purpose of receiving treatment and her continued absence after the execution of the contract and will — the performance of the contract on the part of Goodin involved but little burden, but it is equally true that during the period intervening the execution of the contract and the death of Mary Cole, he apparently did everything that he was expected to do by way of performance. The contract being valid, he was, of course, under its terms, obligated to meet the expenses incident to the attention given to the deceased. It appears that he has not done this, but it seems that he was not called upon to do so, partly or wholly, because of the ministrations of friends who anticipated sharing liberally in the decedent's estate. It can not be said that he ever repudiated the contract or expressed any unwillingness to perform it. We are satisfied that the contract was supported by a legal consideration and that there are not present any equitable circumstances to defeat the rights which Goodin acquired thereunder, nor which preclude him from pursuing his equitable remedy. For a case somewhat analogous, see Alexander v. Lewes,104 Wash. 32, 175 P. 572.

With regard to the specific contention that there was prejudicial error in refusing to receive evidence offered upon the trial, in an attempt to show the plaintiff to have been a person who worked but little and who had no property, who was reckless in his personal habits and who had committed some minor offenses, we think it sufficient to say that, while these matters might have more or less bearing on the question of the ability of the plaintiff to perform his obligation under the contract, they would not show that he had, in fact, committed a breach. Whatever his habits were regarding industry and thrift and the use of intoxicants, it must be presumed on this record that they were known to Mary Cole; for it must be remembered that he had lived with her for more than six years and that she was content, notwithstanding, to rely upon him to the extent indicated in the contract. It is proper to observe that the record in this case shows that Mary Cole, by making the disposition of her property, which is evidenced by the contract and the first will, was not depriving the natural objects of her bounty, for it appears that for many years she had lived apart from her immediate kin. She had had little or no communication with them and had been apparently content with a practical dissolution of all family ties, even up to the time of her death.

The judgment is affirmed.

JOHNSON, and NUESSLE, JJ., concur.