151 Minn. 25 | Minn. | 1921
This action was brought to enforce specific performance of the contract referred to in the opinion rendered when this case was here before. Colby v. Street, 146 Minn. 290, 178 N. W. 599. After the case was remanded, the defendants answered and there was a trial by the court without a jury. The findings were in plaintiff’s favor and defendant Street has appealed from an order denying his motion for judgment or a new trial.
It was found that in the year-1908 Mrs. Wilcox owned and occupied as her homestead the real property described in the complaint; that plaintiff and Mrs. Wilcox were sisters; that in 1908 plaintiff resided in Brooklyn, New York, and in that year Mrs. Wilcox, through correspondence, promised and agreed to give and leave her homestead, at her death, to plaintiff, if she would come to North-field and live with her and care for her; that, acting on such promise, plaintiff came on August 16, 1908, and continually thereafter lived with and cared for Mrs. Wilcox until she died May 13, 1919; that on August 30,1911, Mrs. Wilcox sold her homestead for $11,000 and purchased another for $3,750, where she lived until her death; that when she died she owned the second homestead and had $5,684 in bonds, mortgages and money,' representing part of the proceeds of the sale of the original homestead, but failed to leave this property to plaintiff, although she had fully performed her part of the agreement alleged.
On the appeal the defendant urged: (1) That the plaintiff failed to supply clear, satisfactory and convincing proof of the alleged agreement; (2) that, if there was an agreement as alleged, it failed to describe the property in question with sufficient definiteness to enable the court to decree specific performance; (3) that the plaintiff ■failed to perform her part of the agreement, if one there was, for the reason that it appeared by admissions in the pleadings that in September, 1914, Mrs. Wilcox fell and broke her hip and thereafter required more care and attention than before and paid plaintiff five dollars a week for such care; (4) that plaintiff has an adequate remedy at law by filing a claim against Mrs. Wilcox’s estate for whatever she may still be entitled to receive for her services; (5) that Mrs. Wilcox originally owned a larger tract of land than she might claim as a homestead, and in no event was plaintiff entitled to anything in excess of the statutory homestead.
Plaintiff 'had preserved and put in evidence two letters she received from Mrs. Wilcox. In the first, dated July 29,1908, Mrs. Wilcox said:
“I hope you will borrow the money which you and Edna and West-cott may need and come right away. * * * Bemember if you come here to live — you will own something of your own sometime and can then do as you please with it. * * * I have a little money in the-bank which I must keep for our living. * * * At present my house is rented at 16 dollars a month which will keep us from starving.”
In the second letter, dated 6 days later and addressed “Dear Edna and Abbie,” she said:
“You and Abbie do not realize what old age means. You wd think any other woman of my age without common sense to leave her own home * * * and go into a city rented one just to stay*28 a few months. I am not able to take such a journey. * * * If I am spared till you all come to me I shall be very thankful. Then' you all will have a comfortable home and it will be Abbie’s but if you all ‘dilly dally’ till some one else is obliged to take care of me— your mistake will tell against you. * * Your best, true, wise course is to come here. I am sure you wd all like living here, and it is losing game to delay to come. * * * Come this month, be sure to come this month.” .
Mrs. Edna Smith named in the two letters was the daughter of Mrs. Wilcox’s niece. She was a witness for plaintiff and testified that she read other letters from Mrs. Wilcox to the plaintiff. These letters had been lost or destroyed. Asked to state their contents, she answered:
“All of them ran about the same way; that she was not well at all; she wanted her sister to come out here; * * * to make up her mind as soon as possible; * * * she said her home was beautiful and she loved it * * and if Aunt Abbie would come and take care of it, it would all be hers.”
The witness testified that in 1910, when Mrs. Wilcox was showing her around her grounds, she said she hoped Aunt Abbie would take as good care of the place when it was hers as she had and that it was all going to be hers.
There were two houses on the place, one occupied by Mrs. Wilcox and the other by Mrs. Weicht, her tenant. Mrs. Weicht testified to several conversations with Mrs. Wilcox shortly before plaintiff came to Northfield. The substance of them was that she had written to plaintiff, asking her to come and live with her; that plaintiff had written she didn’t want to come, but wanted Mrs. Wilcox to live with her in the East, and that she (Mrs. Wilcox) was going to write her sister that she would not go East, and finally said:
“She must break up her house and come here as in this house here I have lived so many, many years, in this house here I want to die, and if she comes * * * the home and the little I have shall be hers.”
Defendants submitted the case without offering any evidence.
All other questions discussed in the briefs were disposed of on the former appeal.
Order affirmed.