177 Iowa 179 | Iowa | 1916
James Beatty, who had been acquainted with decedent 40 years, and resided only a mile and a half distant from the farm, testified that, in 1901, decedent inquired which of two wills would prevail when a man made more than one, to which he answered, “It was usually the last one;” and that decedent then said, “Well, I give Willie that 80 for keeping me, and he is to move over in the house and I am to have one room; ’ ’ that the witness asked if he was ‘ ‘ going to give the other two boys something,” to which decedent responded: “I am not. I give it to Willie. He is a nice, clean young man. ’ ’ Cross-examination: “He said he had given the farm to Willie for keeping him ... he talked that way. He had willed it to Willie.”
Sam and Andy Hutten drilled a well on the premises, probably in 1908. Sam testified that, when talking at the dinner table one day, decedent said that the place was Willie’s; that he, Michael, was going to live there as long as he lived, and the place waf William’s when he got done with it; that he willed it to him. “He told me he gave it to him. He said Willie would pay for the well; it belonged to him anyway. ... He said he would live there as long as he lived, and gave the place to Billy.”
This was corroborated by Andy, although in somewhat different language, and also by O’Hara and defendant’s daughter’, as well as his wife, who testified to having taken no part in the conversation. Several witnesses testified that, the reputation of the Huttens for truth and veracity was bad, but, as seen, they were corroborated, though by interested witnesses. Faucelt, who was cashier of the bank at which decedent did his business, testified that the decedent and
“He said all along there that was the way it was to be, not necessarily by will. ... I know he said the farm was to be Willie’s — he said that from the time Willie went on there for a number of years after; for how long I could not say.”
Later on, decedent inquired of the witness where he could get a farm if he sold this one, and he had tried to persuade him not to sell. George Hoppel, a merchant with whom defendant did business, testified that he had heard decedent say, about the time of his wife’s death, “If Willie comes and takes care of me I will will Willie my farm;” that he subsequently referred to this, and several times remarked: “It is Willie’s place; he can do what he wants to. ’ ’
The father of. defendant’s wife’s father, O’Hara, also testified that decedent had said to him that he “gave the place to Willie, that it belongs to Willie after he died, all he had to do was to keep him, Michael, while he lived.” On cross-examination, the witness swore that decedent had told him that “he gave it (farm) to Willie and Mary (Willie’s wife),” that “Willie was going to keep him but he had to pay rent.”
To Farral, Axleton, Roths, Hosmers and Mr. and Mrs. Odled, he declared, in substance, that the farm was William’s. John Coolahan, a brother of defendant’s, testified that, about the time defendant moved on the farm, decedent had said that, if Willie would come and take care of him and live with him, he would give him “all he got — give him all he had; and I told Willie what my uncle had said, and Willie went and lived with him;” that subsequently decedent had
Weare testified to his acquaintance with decedent for several years, and that he heard him say at times, “The farm belongs to Willie,” and at others, that he “calculated to give the farm to Willie.” The daughter of defendant also testified that she had heard decedent say frequently that he had given the farm to her father, and defendant’s wife testified to. having heard a conversation in 1908 between Lizzie Wykoff, defendant’s sister, and decedent, in which she inquired what he was going to do with his property, and he responded, “It belongs to Willie;” that she heard a conversation between decedent and Willie, June 2, 1912, after he had been living with plaintiff, in which they were speaking about the money owed to decedent for the corn; and that Michael then said to Willie, “Nobody can ever turn me against you, and all I got belongs to you and May; now fix up the place to suit yourself and keep it up and make what you can; this farm belongs to you.” She also l’elated that, in the evening after her marriage, he had said to her husband, “Willie, you know I give you this farm. All you and this woman have to do is to care for me as long as I live,” to which Willie responded, “All right.”
Only excerpts from the record have been quoted, but enough to establish beyond cavil that there was an understanding such as alleged. Doubt was raised as to the credibility of some witnesses, because of their insistence that they had never mentioned to anyone what they testified to, or because of forgetfulness of everything else; but what these witnesses said dovetailed with the testimony of those of undoubted veracity. Considerable of the evidence related to what decedent declared he would do, or expected to do, which, when without suggestion of so doing in pursuance of any contract obligation, could have little probative force. Stennett v. Stennett, supra. There was quite enough, however,
That decedent talked about selling the farm, hired two or three washings done away from home, or sometimes expressed his dissatisfaction, owing to disagreements between defendant and his wife, and complained to her daughter of the condition of decedent’s clothes when washing, does not, when considered separately or together, prove failure on defendant’s part to furnish board and care as required, and nothing in this record indicates that he would not have done
We do not pretend to have set out or even referred to all the evidence contained in the somewhat voluminous record. Enough has been mentioned, however, to indicate the grounds of our conclusion, reached after a painstaking, thorough examination of the record. The contract alleged, and its performances, have been proven as exacted by law, and the relief prayed for by defendant should be, and is, awarded.— Reversed.