92 Neb. 378 | Neb. | 1912
This is an action for the specific performance of an alleged parol agreement between the plaintiff and his father, Ferdinand Labs, now deceased, that.the father would make a testamentary disposition of 80 acres of land in his favor, and praying that a will executed by the father, wherein the defendants are bequeathed certain sums of money which by the will are made a charge upon the land in controversy, be set aside, that a deed executed by the father in his lifetime conveying the same premises to Ferdinand F. Labs be also set aside, and the plaintiff’s title to the real estate be quieted. The district court found for the defendants and dismissed the suit. Plaintiff bases his right to recover upon the proposition that the facts in the case bring it within the rule of Kofka v. Rosicky, 41 Neb. 328; Harrison v. Harrison, 80 Neb. 103; Peterson v. Bauer, 83 Neb. 405; Hespin v. Wendeln, 85 Neb. 172; O’Connor v. Waters, 88 Neb. 224. Defendants assert that the evidence is wholly insufficient to establish the alleged contract. A number of questions of law as to the admission and rejection of evidence are argued in the briefs; but, owing to the view that we take with inspect to the evidence, we are satisfied that, even if the district court had ruled otherwise as to the admissibility of this testimony, we would have been compelled on a wiew of the whole case to reach the same result. For this reason, these questions Avill not be considered.
Ferdinand Labs came to this country from Germany
Coming, now, to the evidence upon which plaintiff relies: His testimony is to the effect that, when he was about 22 or 23 years of age, he and his parents went for a visit to the home of a man named Lucht, who lived near Millard; that he then heard a conversation between his father and Lucht, in the course of which Lucht asked his father what he would give William if lie stayed at home, and that the father told Lucht he was going to give him an 80-acre tract if lie worked for him until he got married. Plaintiff testified, further, that he continued to live upon the farm and work for Ms father until he was 33 years old; that his mother died about 6 years ago, and that about that time he
Some other facts relating to the usage of the family and the manner in which each child was started in life by the parents cast some light upon the problem. Charles Labs was married at the age of 27. Before that time his father received the benefit of his work. Upon his marriage his father gave him $500, and by the will he is to receive $500 more, half of which is charged upon the 80 acres in controversy. August was married at the age of 22. Until that time his father received his wages. Under the will he was to receive $500, one-half of which is charged upon
Considering all the testimony in the record with relation to the history of the family, the conduct of each of the children with reference to the father and mother, the time each worked upon the farm, the provision made for each of them by the father when he or she married and set up housekeeping for himself or herself, and the provisions made in the will for the' distribution of the property, in connection with the evidence in behalf of plaintiff, we are convinced that the plaintiff has not sustained the burden of proof by clear, convincing and satisfactory evidence, such as is required in cases of this nature.
The judgment of the district court is
Affirmed.