100 Neb. 647 | Neb. | 1916
This was an action in the district court for Saunders county brought by the heirs of Christina Rogers to recover their alleged interest in her estate consisting of certain land situated in .that county, and personal property which was in her name at the time of her death. The defendants named in plaintiffs’ petition were John T. Rogers, James Rogers, Eleanor Johnson Mitchell, Minnie Johnson Hardy, James W. Johnson, Bertha Strahl, Tena S. McGregor, Alexander Dow, and John Martin, as administrator, together with John H. Barry. Prom a decree for the. plaintiffs and the defendant Tena S. McGregor, the other defendants have appealed.
It appears from the record that William Rogers, whose property is the subject of controversy, had for many years been a resident of Saunders county. He first settled on a homestead and afterwards acquired considerable other real estate by purchase. He married Christina E. Stewart in 1883, and from that time until her death, which occurred in 1913, they resided together in Saunders county. Prior to her death William Rogers conveyed all of his property to his' wife and the same was in her name when she died. Tena S. McGregor, one of the defendants, was a niece of Mrs. Rogers, and had visited with them for many years and had ministered
It is the contention of appellants that the decree is not supported by the evidence and is contrary to law. The rule is well established in this., state that equity will fasten a trust upon property in the hands of a person who promised to dispose of it by will in favor of another, which will follow it into the hands of personal representatives or grantees without consideration. Teske v. Dittberner, 70 Neb. 544. “Where a person, knowing that a testator with whom he has confidential relations in leaving him a devise or bequest intends it to be applied for the benefit of another, either expressly promises or by his action at the time implies that he will carry the testator’s intention into effect, and the property is left to him with the faith on the part of the testator that his promises will be kept, he will be held as trustee.” Smullin v. Wharton, 73 Neb. 667. “In such case, the will has full effect by passing an absolute legacy to the legatee, but equity, in order to defeat a fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee as a trusted ex maleficio to turn over the gift to them. The court acts not upon an express trust created by the testator but, on account of the fraud, upon the conscience of the devisee.” Smullin v. Wharton, 73 Neb. 667; Pollard v. McKenney, 69 Neb. 742, 753; Schneringer v. Schneringer, 81 Neb. 661.
Without quoting the evidence, we find that it is clear and convincing that William Rogers agreed with his wife that lie would make a will devising and bequeathing the estate which she gave to him by her will to Tena S. Mc-Gregor and her other heirs; therefore the court was warranted in decreeing one-third of the property to Tena,
Mrs. Rogers left all her estate to her husband by will, relying upon his promise to protect her heirs and carry out her intentions as agreed. He obtained title to all of her estate, being all the property which- she had, by reason of his confidential relation, the confidence she had in him, and his agreement to carry out her wishes. To decree the estate to others than her heirs would amount to a fraud which a court of equity should not tolerate.
Appellants also contend that the trial court erred in excluding the proffered evidence of John T. Rogers. It is clear that the witness was directly interested in the subject-matter of the controversy, and under the provisions of section 7891, Rev. St. 1913, his evidence as 'to conversations and transactions with the deceased was properly excluded. The same may be said as to the proffered evidence of C. IT. Slama who was William Rogers' attorney and confidential adviser. Rev. St. 1913, sec. 7898.
Appellants further contend that the court erred in refusing' to sustain the motion to correct the testimony of witness C. C. Turney. As we view the record, it speaks for itself, and the court properly refused to make the proffered correction.
As to the assignment of error in receiving certain evidence, it may be said that, where the trial is to the court without a jury, the presumption is that the court Considered only competent evidence in reaching his conclusion and judgment.
Finally, the record clearly shows that Mrs. Rogers furnished a large part, of the money used for the purchase of the real estate; that she and her husband had frequently and publicly declared that their property should go to Tena S. McGregor and the other heirs of Mrs. Rogers to the exclusion of the heirs of her husband. Tena had visited with them for many years, had ministered to their comfort and their wants, and was entitled
We find no reversible error in the record, and the judgment of the district court is
Affirmed.