*1 PANGAROVA, Tsetsy Appellant
(Plaintiff below), NICHOLS,
Nicke Executrix of the Estate N. Nichols, Deceased, Ap A. of Nick pellee (Defendant below).
No. 3465.
Supreme Wyoming. Court
Nov. *2 Marin, brother, who Plain- was married. youngest
tiff is the child of brother wife. The settled in *3 Casper, Wyoming, became a naturalized citizen, year in his and the 1929 married wife, couple first Marie. The no chil- years prospered the dren. Over decedent and the'time of his left an estate at death $162,000. approximately at Some- valued year prior time to the the decedent 1947 and in his wife Marie became interested America, plaintiff com- bringing and year the there was mencing in about 1947 correspondence deced- 'mutual between the ent, plaintiff, the and brother decedent’s ' Understandably, Marin toward' end. country, Bulgaria being a dif- Communist Hawley M. Kil- and Ernest Wilkerson ficulty arranging was encountered appellant. patrick, Casper, for States, plaintiff come to the United Jerry Harry and Robert Leimback E. d'elay years. and there was a several Hand, Casper, appellee. wife, Marie, the meantime decedent’s first February J., died in 1955. 1956 de- PARKER, HARNS- C. and Before June McINTYRE, cedent, BERGER, years of who was then 69 age, GRAY JJ. defendant, then 35 married the who opinion Mr. GRAY delivered years age. Eventually the obstacles Justice court. coming preventing. from United States were and she ar- overcome against an action Plaintiff commenced in- January rived She was here 1957. as executrix of the estate defendant by met the decedent and the defendant Nichols, deceased, recover Nick A. airport Casper at and taken their purport- damages breach of contract for a period home. She remained there for a edly by lifetime to made deceased his when, approximately one because month adopt plaintiff her and make his heir. upon existing of conditions the home jury present, and case was tried with a further, she which we shall elaborate left plaintiff’s evi- at conclusion up and took home residence mo- dence the trial court sustained apartment by secured for her the decedent. tion of for a verdict the defendant directed approximately She remained there for one accordingly. From judgment entered years, time a half at the end of which appeals. judgment plaintiff Denver, her Col- moved residence to The action taken the trial court again orado, decedent. and did not see the prevailing tois be viewed under the rule year died The decedent testate in the by plaintiff that the will evidence offered all of was left be taken as true with the reasonable action the defendant. The within inferences and intendments to be drawn commenced on March Wyo. Hawkey Williams, 72 therefrom. Wyo. P.2d decedent, The claim of is that P.2d 447. correspondence men- disclosed By circumstances, general concern- made an way of information tioned other ing controversy, discloses record would come country to this from adopt decedent came and make United- States would her Bulgaria year heir; accepted in the left behind her He -his thing ready per- The same is true performed or stood of the failure of (cid:127)offer and imposed Furthermore, consideration. all of the conditions removal form contract; resulting that the con- of an alien from the his birth land of parents breached dis- from and relatives tract was has, property contrary to such United under circumstances posing of his States here, quite agreement, damage of the similar to the case been held all to the Page to be tiff. a sufficient consideration. Wills, 10.6, p. on and the (1960), 4S7 the defendant The answer of cases there cited. denial, complaint general in substance a alleged. were and no affirmative defenses Largely disposition determinative of the However, pretrial con- one the three assigned to be made grounds of the other *4 defendant stated ferences held the matter questions sixty are that relate to some no con- her contention to be that there was plain- letters the the written deceased to tract between the deceased entered into tiff, both, Marin, to his brother or to plaintiff; it be determined but should upon disclosing plaintiff which relied as into, it that a contract was entered intention decedent the and as evidence plaintiff that to come here of the offer made decedent. There- take the rest of care of decedent for fore, helpful dispose it will be first to life, not done and inasmuch as that was the matter of the letters. The letters plaintiff performance under failed in her par- Bulgarian language. were in the The the contract and could not recover. stipulated ties that the were letters written stating its The trial court reasons by the deceased and that the translation directing for the verdict took the view English appended into letters was the upon plaintiff relied Nevertheless, that the substantially .letters correct. the did not fix the terms of the time de- these letters were offered the definiteness; proof with sufficient that objected proper fendant that founda- di- of a contract “of this nature must be tion had been laid for reason there that definite”; proof rect and that there nowas “re- was no evidence that the letters were * * * change position or action of such by plaintiff, nor ever ceived part plaintiff deny on the “that re- mailed, nor she ever relied fraud”; lief would amount there same, if a contract.” the same constituted performance; was no that she left objected that the letters Defendant also disharmony in irrelevant, home of decedent to avoid im- hearsay, incompetent, were home; coming that her here “on her material, in contravention of the Dead- money uncle’s not consideration objections seem to have man’s Statute. The [was] Upon put up.” that she a careful review and overruled been sustained in record, we are convinced that ruling that part by trial court’s misapprehension trial court was under some for the limited letters would be admitted just plaintiff only as to what the burden of purpose “showing intention and prima was in case. making interest, out a facie being in against statement as a handwriting.” are We [decedent’s] example, briefly refer to For we persuaded court was war- ruling assigned. the last two reasons limiting preferred ranted in written so plaintiff had left decedent’s home can under- evidence. all fairness we disharmony hold avoid is in substance a in, ing plaintiff he judge’s the contract. stand concern as abandoned the trial it, this put papers That firing was affirmative defensive matter “a mass of * * * ‘you jury] say avoidance of matter the contract. Such kind [at ” pleaded large was not as re A number the defendant write contract.’ W.R.C.P., little, quired any, probative 8(c), Rule and con if letters had Yet, sequently will was not an issue in of the letters case. value. a review difficulty, direct circumstantial evi- lan- it overlooks too much (cid:127)disclose, without contrary. dence to the tending that an offer establish guage had been made in as claimed now turn what these letters We of law to as a matter sufficient terms prove. evidence tend to other contract, accepted by the if form a In a dated December letter on this further. comment shall tiff. We 19, 1946, inquiring decedent said material were also A of the letters number procedure obtaining passport about offer, be- the claimed or not on whether stay come to for her to America “and or with- been modified acceptance, had fore always you your agreed, here are letters, the trial as Some of drawn. parents agreed.” Then in a letter for other recognized, material were court dated and her mother and father respect Consequently, with purposes. said, right May “I think letters, with agree we Tsetsy [plaintiff] comes to us after here attempting to limit the the court erred adopt we her or transfer will course, offer; provided, purpose of try help- on her. as I I’ll much can of laid. been proper that a foundation day ing every side, may her in come * ** ready help me. We are rul the court’s As understand always pleasure biggest (to as to ing, objection it did overrule *5 you if her) are more let- also.” Several properly think so. and we foundation that a ters intervened between letter and lips receipt the letters as to of Plaintiff’s 26, 1954, letter on October to the written death the writer. of were sealed except plaintiff; father mother of however, proof That, prevent not as letters reflect a those determination receipt other mailing thereof part continuing desire on the of decedent proof? In addi What was evidence. plaintiff wife to bring then Marie stipulation that the letters were tion States, to the not of im- United much handwriting the decedent and portance appears. substantially cor the translations were that rect, the letters the record discloses that 26, 1954, is, letter of October plaintiff; possession were in however, significance. this letter de correspondence was mutual ex there cedent, informing ill after of the terminal years; tending period over a several Marie, ness of stated: acknowledg contain a number substantial * * * possess $100,000.00 i more than “ receipt of letters ments each of any without debts. I a have other; by the letter bears and each written money hank, big in the be- amount upon Under which was written. date bought houses, year I 3 cause one question can little the authorities there be rooms, 4 with 3 one house house with proper foundation was laid. Metro that a rooms, one house 7 rooms them all of Cir., politan Armstrong, 8 Life Co. v. Ins. cash, paid $5,000.00 car also a T.V. 194; 187, Costigan, Gosney 85 v. F.2d paid set all are cash. Your sister $700.00 1215, 947, Scott’s 326 Mo. 33 S.W.2d daughter doesn’t her law love 641, 383, Beland, A.2d Vt. 45 Ex’r v. 114 grandchildren why proper- and that’s all 646. my ties name. We have a mutual us, contention
Defendant’s will between if she dies remains there me, letters were not admissible because I die all remains to Marie. proof plaintiff relied no had Tsetsy If come adopt we will her and wholly without her, acted the letters all will remain to our will be First, objection proper heir, states merit. otherwise I don’t know who else ground excluding as for the letters evi my going properties to inherit and if I Pique, get of the contract. Hendrix dence ill I would I’ll have know close rela- 390, 49, Secondly, me, 237 Ala. 185 So. tive expect to take not care of they strangers, will take advantage told about women who were after him for my you property, instead property, have it.” but assures that when she comes Casper she will find him “all It was defendant contended offer, alone.” requested He also not offer, if it was made to marry, assuring got that when she plaintiff’s parents and not to her and was there she would find a husband. suitable never find no communicated. We merit in Then on wrote that. that plain Other evidence discloses June plaintiff, advising going her that he was majority. tiff then had reached her Un marry July defendant. On 1-726, W.S.1957, der authorizing the apologized having for not for written adoption person, of an it is the adoptee adult explained some time and that the reason required adoption that is to consent to the delay marriage for his was his to defend- parents. and not the That was known or ant. He acknowledged telegram also should been known decedent. Un congratulated him and question der the circumstances happy wished him a life with defendant. promise whether or not the was made not Then goes deceased de- on describe also, only but, plaintiff’s parents through fendant, aunt, being “very good, her new as intermediaries, them as you, you, very much, and she like love will Nicholson, question of fact. Kirch you and she wishes a sooner arrival here. Moreover, Wyo. 297 P. you Maybe I believe will like her. she will where as here consideration moves in the- your though young, be even she is mother child, parents whole or from * * * years age. do think now not regarded agents child. I because I am married love Green, Mass. 9 N.E.2d Green v. respect you. me the You will Am.Jur.2d, Con 415. See also your closest one me. And Aunt Nike -tracts, p. That it was com *6 738. marry you I do. I will also love Before from the ac municated could be inferred you, is her I to her about and she talked subsequent by plaintiff thereto. tion taken you completely agreed that she would love importance that letter of is Another respect anyone you and * * more than else. February dated written to and * Nike, agreed with your new Aunt is explains the this 1956. In letter decedent you adopt you, her that we and heart n difficulty having getting visa in he daughter.” our will be patience. The for to have for her and plain- deposition letters and the Other say: goes letter then on to plaintiff, that disclose tiff’s father “ * * * I GO WILL TOMORROW father, de- from her financial assistance WILL, I WILL MAKE A NEW TO Sofia, family Bul- home in parted from BE LEFT TO IT ALL TO MAKE France, year Paris, late in the garia, for ,1 BENEFICIARY) IF (AS MY YOU point she to embark from which PIAP- BAD SHOULD SOMETHING at She arrived the United States. YOU, WILL FOL- PEKA PEN TO January 1957 part of Casper in latter YOU, AND AFTER AFTER LOW and the home decedent moved into CHILDREN, HER BE HER WILL wife, the then defendant. his LIKE.” I DO NOT WILL THIS that left above mentioned We testimony there this connection “In Within a month later. home about attorney, Swanton, that Mr. William onetime executed a naming decedent effect a short time thereafter a will was re- whereby heir of decedent. were tiff as the all former wills new By property of subsequent will all of the voked. letters, written In other bequeathed to Marie, decedent was devised the decedent wife the death parentheses translation. are ours but The proviso that had to be with the contract shown direct defendant evi go authority to their chil- dence. While there predeceased him would is some effect, gone all of that we and if there were no children have not that far even dren specific to collateral where go sought was to cases a claimant decedent’s performance of of the defendant. an oral relatives make services, personal a will in consideration of there was addition to the letters which, course, presents circumstances testimony of statements made differing from this case. In a case long acquaintance. For ex persons of Harris, say former class we did in Slover ample, Joye that in about Kading testified supra, although that such an year 1953 she and her husband visited party seeking enforceable to establish home of testified that decedent. She heavy it had a burden. The of evidence presence presence in their of his accepted fered must with caution Marie, wife decedent said “he then carefully keep scrutinized. That was they his wife felt had since no heirs ing previously with the rule announced to, their to leave estate the two of Casper Curry, National Bank v. niece, agreed Tsetsy them if his Wyo. 1116, 1121, 65 P.2d 110 A.L.R. Pangarova, would come to United against “that claims of' estates States, they adopt make her her and persons deceased should be scrutinized with- Ruby their heir.” Drazick her moth permitted except care and not prevail Tomlin, er, Anna testified to similar state proof.” clear We also said in Canada ments made decedent. we have While Ihmsen, Wyo. 439, 240 P. testimony that such said is “weak evidence may person A.L.R. “con scrutinized,” carefully and must be is to tract leave property by inwill along be considered with other evidence same manner a con make Harris, Wyo. 295, case. Slover v. sell it” though tract “not favored” weight 314 P.2d of it was “clearly such contracts will be enforced if jury. purpose pro shown.” The of the rules so upon deceased’s reflecting Other evidence was, course, against nounced guard testamentary found in the intention can be easily fraudulent claims false- advanced record, foregoing but we think is suf testimony. Conversely, however, it was Perhaps purposes. ficient for our recognized which, there are claims *7 plaintiff by should add that an offered though proof, even difficult of the- warrant complaint seems amendment of —which equity expression aid of to enforce and no to have been that overlooked —concedes will in foregoing be discerned that relief, she is entitled to be measured is to impossible would make claimant’s burden by the value of the deduction estate after cases, imposed' in most such as the rule payment claims, for of administra costs by the court. trial It must remembered be such, statutory and the allowances tion lips that a claimant’s are the- sealed widow, made decedent’s the defendant. promisor. death The authorities general is rule. keeping Such in with recognize that whether is di the evidence Estate, 228, Gary’s In Ariz. 211 re 69 rect or circumstantial is not decisive. 820; Ward, 815, 94 P.2d Colo. Ward v. Warner, Cir., 481, Walter 10 F.2d v. 298 275, Fuller, Fla., 853, 855; 30 P.2d Tod v. 482, 483; Estate, In re Niehaus’ 341 Ill. Friend, 713, 714; Patecky 78 v. So.2d 176-177; 612, 454, 527; 170, App. 525, In 220 Or. 350 94 N.E.2d re Dull’s P.2d In 129, Will, re 253 Soles’ 215 N.W. Estate, 233, 435, 439; Wis. 184 Kan. 336 P.2d 801, Sutton, 458, Roberts v. 317 Mich. 27 N.W. 54, 55; Estate, 2d In re Williams’ 10 Utah quality turn We first 83, 683, 2d 348 P.2d 685. The most that required of the evidence produce. The that the can previous trial court ruled be of our said admonitions.
695
principles of
the law of contracts.
to an
eral
no more than
meant
Is that we
Nevertheless,
respect
to contracts
with
rule —and
rule
the reasonable
nounce
discussion,
type
under
the courts are
that the evi
applied
is
often
most
—which
such,
usually
are
en-
aware that
contracts
contract
proof of
oral
an
offered
dence
-by laymen
of an
tered into
the aid
and convinc
without
must be clear
to make a will
527,
attorney.
recognized
It
their ex-
is
Wills,
10.43, p.
ing'.
Page
1
on
§
intentions,
understanding
pressions,
requires some
sequitur
rule
(1960). The
et
vary
intelligence
keeping
will
with their
preponderance, but
a mere
thing more than
experience.-
a more
.and
For such reason
beyond all reá-
proof
connote
(cid:127)does not
;sonable
required
and it is
liberal view is taken
Estate, supra;
Dull’s
re
doubt.
clarity
expressed
.that
with the
150,
terms
Mentor,
385
Wash.2d
Bland v.
preciseness of
in the market
contracts
such evidence
P.2d
728. Whether
place.
important
thing is
their
primarily for
quality
bears
is
purpose has
McMahon
been made clear.
Auger,
v.
McMahon
trier
facts.
Auger, supra; 94
Wills
Dilger
P.2d
C.J.S.
Idaho
pp.
Estate,
Wis.
McQuade’s
N.W.
1087
.
(cid:127)
point
In this connection we would
out
that the contract claimed here
not one
however,
here,
an
Where
personal
problem
services —the
con-
admittedly
has been made
handwrit
Casper
fronting us in Slover v. Harris and
problem is rather
ing of the decedent
Curry, supra. Neither
National Bank v.
testimony of
only
oral
simplified.
It is
dealing solely
it a
with the mat-
contract
hav
and admissions
intentions
decedent’s
adoption.
It
a
contain-
ter
upon the terms of the offer
bearing
a
ing
adoption,
provision
coupled
ing
with
plaintiff’s
evidence
and the circumstantial
parent
provision
the foster
shall
required to
that are
acceptance of the offer
adoptee
contracts
make the
an heir. Such
meet
the test.
minor
are not uncommon
the case of
the evi-
question is whether
The next
"generally
are
children and
construed
by plaintiff
to estab-
tended
adduced
dence
obliga-
impose upon
adoptive parent
certainty,
lish,
required degree of
awith
heir,
make the child an
tion to
claimed
and conditions
terms
equity
specifically
Annota-
enforce.”
defendants
agreement.
connection
difficulty
A.L.R. 1318. Our
here
tion 171
pertaining
us several cases
cited to
Nevertheless,
is that an adult is involved.
be made to become
showing
must
pursuing
question
or not
of whether
entitledto the
perform-
remedy
specific
sufficiently
terms
agreements.
of oral
for enforcement
ance
evidence,
by plaintiff’s
shown
Here,
course,
we are confronted
helpful
language
first to refer to the
used
than an oral
promise
writing
rather
*8
more
in this
in some of the
recent cases
difficulty
those
Another
with
agreement.
general area.
seeking
is not
authorities is
is
Estate,
The action here
specific performance.
Gary’s
228, 211
In In re
69 Ariz.
damages
of contract.
for breach
815, 818,
orally promised
P.2d
Harris, supra,
at
314 P.2d
Slover
grandparents
of claimant that he would
requirements
de-
we noted that
“feed and clothe and educate me [claimant]
establish
for evidence to
fendants advance
and make me his heir
in-
I should
parties
on def-
met
that the minds of
herit a child’s
at his death.” Her testi-
exacting in actions
not
terms were
so
inite
mony
by
was corroborated
an uncle who
10.5,
Wills,
Page
See also 1
on
at law.
present
alleged
was
the time
con-
p.
(1960).
450
versation,
being that decedent
his version
case, however,
said of claimant that he
In either
most
wanted to “make
gen-
my
apply applicable
.
her
lawful child so that she can inherit
courts consider and
my
provide
welfare,
coming to her at
death.”
is
make
what
claimant and a sub-
claimant “his heir
between
to inherit at
contest was
his death
instant case the
as if
had been
sequent
As
his natural
wife.
child.” The
allegation
con-
court held that
contended that when such a
defense
was suffi-
cient and if
proved
prom-
a court
claimant
tract is indefinite
uncertain
that the
performance.
made,
ise
equity
specific
the court
will not decree
decree that
should
the claimant was
Of this the court said:
entitled to
recover
equivalent of what she would have received
statement,
agreed
“We are
adopter performed
“had the
his contrac-
applicable
agree that it
here.
but cannot
is
obligation
tual
formally
legally adopt
In this
the contract was established
case
child
involved.”
by
per-
uncontradicted evidence of two
sons,
by
ap-
case,
Another
signed
Estate,
In re
and corroborated
McLean’s
adoption
lication of the deceased for
Wis.
although
N.W.
dealing
in-
appellant, stating
that she
with the
adoption,
would
matter of
pertinent
question
herit his
is neither
to the
estate. Such evidence
of the suffi-
ciency
plaintiff’s
indefinite nor uncertain.”
evidence to establish
promise
promise
made. Here the oral
Christensen,
In Frederick v.
73 S.D.
was that decedent
provision
would make
529, 531, 532,
39 N.W.2d
claimant was le-
in his will “sufficient to obviate his [claim-
gally adopted by the
claimed
decedent but
becoming
public charge
ant’s]
under the
coupled
adopt
agreement
with the
poor
Subsequent
laws.”
promise
agreement
would
an oral
that claimant
decedent made
whereby
a will
he devised
parents
become the heir
the foster
a farm to a cousin as
pay
trustee to
property upon
receive their
their death.
net
claimant,
income thereof to
brother,
testimony
There
made
of admissions
during the
However,
brother’s lifetime.
they
parents
the foster
wanted “to
decedent was married and
a result
as
of his
adopt
child and
him
as their own
[claimant]
widow
adopted
and an
daughter exercising
give
they
gone.”
him
when
were
everything
their statutory
taking
allowance in lieu of
Also,
only
be the
heir
claimant “would
will,
under the
the whole of the estate went
There,
they
here,
lips
have.”
to them. The trial court refused to admit
the death of
claimant were closed
probate
the will to
apparently
ground
on the
supreme
parents,
the foster
but
court
that the claim of the brother was too in-
stringent
under a rule more
than we have
definite as to
supreme
terms. The
court
enforcing
observed
the judgment
affirmed
reversed, holding
that if the oral
Crilly Morris,
the contract.
also
See
was indefinite as to terms it was made def-
70 S.D.
N.W.2d
inite
the will, and at
TO YOU AS 383. With aof by execution respect scarcely followed argued letter was to this it can intention carrying plaintiff decedent’s avowed good that did not in faith meet conjunction purpose every effect. obligation imposed into upon her the de- be con- there must also up with that evidence cedent to the time the Nich- she entered 10, 1956, wherein July sidered the letter of ols’ home. She had not married decedent, that de- things, said among parties originally other stipulated that she came adopt you, agreed had “that we fendant Bulgaria Casper from the month daughter.” When you will be our January she met at the where was corroborating evi- such evidence and other airport by decedent and defendant and light of in the dence is viewed as a whole stipulated taken to their home. It was also cited, trial court think the the authorities approximately that “for she remained there say plaintiff’s cannot that month; home; and this court that left that she she was the offer the terms of as to (cid:127)evidence up apartment residence in her- took an unconvincing indefinite, unclear, and self; so apartment that said was secured for prima out a plaintiff failed to make decedent; paid her that he the first True, ambi- there was some facie case. apartment; month’s rent on that there- by the .guity, but what the decedent meant after she a resident to the did return as question in the used letters language stipulation, home.” In the crit- view instance. jury in the first for the question is, happened ical in the What home during period there? The also, doubt, can be little There only pertinent question evidence evidence, by the accepted plaintiff’s Ruby testimony plaintiff’s witnesses the conditions to show jury, was sufficient Ruby Drazick and Tomlin. Dra- Anna decedent. upon the imposed zick, among things, that on other testified establish Briefly, tended to such evidence over- occasion in the one she was home family her own to leave about cnc- argument heard an which lasted Casper; that she Bulgaria and come half and defendant hour between decedent arrived; single until was to remain disharmony in concerning and the plaintiff owed adopted daughter that as affection, that at de also testified new wife household. She decedent and his obedience;3 association, service, votion, decedent told that time or later the consent plaintiff was .and that way both, the wife “couldn’t live with adoption. her”; under live that he couldn’t reacted to along strain, get in order that kind of “so is whether question A further n have to be in his household there from which there was evidence or not pressed. Co. Cathey, & Trust Bank Taylor Savannah Ala. 111, 11 S.E.2d Wolff, 191 Ga. a direct aside court set So. supra. Gary’s Estate, what Just primarily In might re for the reason ed verdict adoptee expected an adult described in a letter service, association, way promise. in the in the involved be measured no doubt best obedience can raising jurors experience implies matters these The law though of their own. children adoption not ex minors even *10 is- more reasonable rule to fraud. The if that “it would best separation”; some inequitable to' not it would be living quar- whether or other Tsetsy he found left and of' plaintiff’s claim. the basis On her”; “Tsetsy leave enforce that should ters for are con- “in it now stands we household”; this the record as he had to do that his not declare trial court could Anna vinced the keep peace with his wife.” order to inequitable. plaintiff claim of was and that the testified when decedent Tomlin that contract jury plaintiff find that Should plaintiff were in her home breached cry said, claimed made and was to and “her uncle wanted started decedent, de- not be move, and his widow would her to told her she had to move statutory right receive prived of her brought her here.” provided' as one-half of decedent’s estate Recalling the record that on the state of 2-47, W.S.1957, § being true accept we must such evidence as provisions of rights in her vested repre recalling that decedent had also inclusive, 2-217, 2-213 to W.S.1957. §§ shortly her em plaintiff sented to before the cause judgment The is reversed and Europe defendant barkation from grant a new remanded with instructions agreed that would love her and had at least trial. you daugh adopt you, be our “we
ter,” it how the is difficult understand McINTYRE, (dissenting). Justice trial as matter of law that court could hold of opinion concur in the I cannot Justice- produce had sufficient failed Gray for these reasons: per tending to substantial evidence show opinion the fact for her failure 1. Such overlooks legal formance and excuse to- promised property fully and conduct even if Nichols perform. The actions marriage- niece, subsequent his failure to of decedent’s the defendant and implication. the offer cooperation, represented, was revoked obtain her to meet no for decedent’s failure excuse the situation- opinion confuses 2. Such Allen T. obligations. Gibson v. completed at J. a contract is where 708, 709; Wyo., Am. Agency, P.2d remarriage and the situation time of Contracts, Jur.2d, p. § contract C.J.S. no where is admitted p. 116b(1), Wills 875. remarriage.. completed of at the time equity, a decedent a contract Moreover, assuming that even another property to to leave his arrangement have consented to the against an should be enforced not question by decedent, made for her wife). party (such as a innocent third any- can well asked she consented damages for breach One who thing change more than a in the mode of seeks alleged of an contract such as living might expected well be required' this daughter. Considering adult cir- tiff claims in case all of the cumstances, question evidence that the establish such is our view clear, plaintiff by way positive, conduct which is certain whether controversy; beyond legitimate performance accepted such- question not furnished primarily has ruling evidence. fact and the trial court erred contrary. perhaps connection Mai'riage Implied From 1. Revocation question we should also mention that Gray points out opinion of Justice acceptance not timeliness has stipulated plaintiff came parties been argued. raised or originally Casper Bulgaria from Jan- after Finally, uary, 1957, months to be which was seven we do want defendant, his second approving understood as court’s married the the trial Nichols correctly ruling Also, states opinion burden of wife. had the n n disclosing an ac- showing that of relief amount written evidence denial
699
by plaintiff
acceptance
any
offer. Anderson v.
'ceptance of
offer
Stew
660,
part
art,
140,
149 Neb.
Hence,
any offer on the
3 A.L.R.
produced.
if
N.W.2d
n ofNichols was ever
outstanding,
it could 2d 250. This
also-
in
recognized
rule is
Restatement,
Contracts,
41,
49;
p.
in
ripened
a contract until
into
have
§
Contracts,
133,
per-
p.
Page,
and
tiff
to
United States
and
came
§
Corbin,
supposed
Contracts,
40, p.
contract.
part
formed her
of
§
however,
to
meantime,
prior
The author
and
cited from
section
country,
plaintiff’s departure
says
Nich-
Corbin
other
a
facts besides
notice
1956,
S,
advising that
may
her
of
ols wrote
revocation from the offeror
make
June
marry
it
On
going
accept
to
defendant.
unreasonable for offeree to
and
"he was
1956,
advising
again
rely;
July
he wrote
should
to
offeree
be held
ac-
had
defendant and
of
If
that he
married
standard
a reasonable man.
from
receipt
telegram
a
knowledging
of
is held to that standard in the
bar,
his
apparent
on
congratulated
which
him
case at
cannot
becomes
she
happy
thought
him
life
marriage
a
claim she
from Nichols
wished
an offer
out
give
property
open
defendant. These
set
to
events
all his
was still
Gray. They show
opinion
of
when she came to America.
Justice
clearly
prior
any
action on the
For her to
like
do so would
one
be
plaintiff,
of
be construed as
which could
buy
claiming
right
land offered
acceptance
Nichols,
of
from
she
an offer
him,
prior
acceptance
when
to an
change in Nichols’
had been notified of the
performance,
knowledge
the offeree obtains
position
circumstances,
e.,
i.
mar-
his
land
that offeror has
contracted
sell
Tiage.
generally
to another. The cases
hold
a
knowledge
situation
obtained
give
Nichols
all his
For
to intend‘to
offeree,
prior
performance or
to his
property
single
to his niece when he was
acceptance,
ac
power
terminates
of
his
and had no
other close relatives
ceptance.
Reed,
145 Tex.
Antwine
thing.
give
"be
him to
one
For
intend to
482, 485;
Exp.
199 S.W.2d
Hoover Motor
all of it to her after he married defendant
Co.,
Paper
Co. v. Clements
193 Tenn.
would be a different
and unbelievable
1 Cor
241 S.W.2d
853-854. See also
68-69,
thing.
In Annotation 69 A.L.R.
Contracts,
bin,
164-165;
pp.
§
authority
(with
at is said
cases cited as
50, p. 712.
alleged C.J.S.Contracts
statement)
for such
the fact
an
inequitable
persons
said,
(cid:127)contract
toas
third
I
From what
is obvious
may
determining
influence
its
necessarily
July
the court
look
must
existence,
letter,
in such
its execution
since
case
his niece
written
Nichols to
contrary
would be
to common observation
to none
remarriage,
after his
prob-
letters,
experience
against
reasonable
other
for evidence
abilities.
supposedly
acted
when
which
came to the United
If this
States.
question is,
Our
intent
should Nichols’
make
thought
offering
letter is
any
his
revoke
former offer made
daughter
Nichols and defend-
implied
subsequent
niece
mar-
from his
ant,
mean
would not
riage?
I think so.
given.
to be
contracts,
the law
rule is that
practice
It
is not
uncommon
revocation
an offer
made
all of
estate
husband to leave
his
communication
offeror
received
from the
wife,
regardless
offeree,
“implies”
children
by the
states or
us,
couple may
case
In the
before
enter
have.
longer"
offeror
that the
intends
indicating
testimony
that before
contract,
there was
proposed
into the
the communi-
Nichols remarried he- had made a will
exer-
cation is
offeree has
received before
favor of his
creating
niece.
power
a contract
cised
*12
ripened into-
outstanding,
could not have
it
testator,
any other
of
But,
like
United
plaintiff came to the
contract until
change.
a
to
subject
was
Nichols
the will
sup-
part of
performed
and
The
States
subsequent will.
by a
It
revoked
was
Consequently,
are not
posed
we
contract.
to revoke
of Nichols
right
competency
and
an uncle
dealing
situation
with the
where
to make
and
his niece
will in favor
subsequent
made-
has,
marriage,
prior to
has
a
his wife
in favor
in lieu of it one
his
give
to
all of
completed
a
contract
already
re-
litigated
apparently been
Instead,
con-
property
arc
to a niece.
wife.
favor
solved
uncle
this
sidering-
instance
whether
July 10,
in the
promise
made
No
was
contract
complete
could and
such a
did
estate,
Nichols
all of the
give
1956 letter to
re-
his
January, 1957,
months after
seven
fact,
all,
plaintiff.
to
any property at
or
words,
marriage.
there a.
In other
was
did he
Nichols remarried
at no time after
so,
time,
if
meeting
of minds at
any property.
promise
give
ever
to
will the
it?
law countenance
And,
I
heretofore
for the reasons
say
meeting of
In order
there was a
to
predicated
forth,
cannot be
set
contract
a
came
January,
minds in
when
prior to
upon
supposedly
an
made
say Nichols,
America,
to
have to
we would
Therefore,
plaintiff’s
remarriage.
one-
time,
give
at
to
his niece
intended
proof fails,
judgment for the defend-
estate,
half of his
less widow allowances
proper.
ant was
provided
2-213
2-217. The
for in
to
§§
Uncompleted Contract
Completed
vs.
more;
permit
law would not
and therefore
more would be invalid.
If Nichols ever-
states,
opinion
Gray
The
should
of Justice
intention,
certainly
had such
did not
he
jury
claimed
the contract
was
find .that
express
any
or
imply it
of his letters.
decedent,
made and
his widow
breached
statutory
deprived
would not
of her
in-,
justification
is
There
no
or
reason
right
estate
to
one-half of decedents
receive
trying
apply
equitable principle
to
n 2-47, W.S.1957,
provided
and the
in §
Gray
apply,
in in-
except
seeks
Justice
property
in her
rights vested
already
stances
contract
been-
where a
has
provisions
2-217,
2-213 to
W.S.1957.
§§
completed
prom-
and made at
time when
applicable
This
if
statement would be
isor
obviously
There is
no evi-
marries.
(and only
completed
if)
contract had been
a
case,
dence
either
or circum-
direct
between
Nichols and
at the time
stantial,
Nichols,
critical
show
remarriage,
following
Nichols’
time,
give
portion-
intended
niece
reason:
Gray..
of his
suggested by
estate
Justice
If a
contract
made
an uncle to
is
Hence,
plain-
could
no
there
contract
niece, prior
leave
property
all of his
ato
proof
support
tiff’s
sufficient
subsequent
uncle,
to a
marriage of the
her claim
damages.
equity
principles
under
courts
creditor’s claim filed
statutory requirements
might
under
both
suit;
prerequisite
executrix as a
apply
suggested
the formula
Justice
action;
complaint
filed in this
Gray.
hand,
if such
On the other
pretrial
settlement
con-
contract
been
of issues in the
completed
has not
made
marries,
when the uncle
then and in
report;
ference
and statements of
compelled
event the courts are
-argument
us, all
tiff’s
in oral
counsel
cannot,
hold that
the uncle
under the
very
make
clear -it
the contention
law, complete a
contract
leave
plaintiff that she is
entitled tó all
property to the niece.
promised
Nick A. Nichols estate
because
out,
As I
it to her
pointed
“if
any
have heretofore
she would come to the United
offer on
of Nichols was ever States.”
however,
made,
promise
important
It
If such
to notice that
letter
remarried,
July
language
before Nichols
contain
does not
promise
indicating
pertaining
was made
desire to
*13
Tsetsy
The
relied
remarriage.
his
letters
condition that
after
would come
the
to
letter,
upon
to a
by plaintiff
no reference
United States.
In
contain
Nichols as-
cannot,
wife,
Nicke,
portion
property.
sured his niece
his
of Nichols’
We
second
course, supply
very good
make
like
of
the omission and
and would
and love the
any
than
could
niece and
a
“wishing
them do so
more
soon arrival.”
any
Nichols
recognize
plaintiff
a
for
This would contradict
idea
contract
all
supposed
came on account of some
offer
estate.
July
the letter of
1956. She was
Completion
Impossible.
Was
already coming. Moreover,
coming
she was
Why
say completion
alleged
of
do I
knowledge
supposed
with full
offers
time,
impossible
at
critical
contract was
in previous
longer operative.
letters were no
2-213
January
2-47 and
1957? Because §§
my
All
having
of
with
discussion
to do
mean,
2-217, W.S.1957,
Nichols
to
after
Nichols,
whether
marrying,
after
could
defendant,
longer,
he could no
married
completed
a contract for all of his
law,
all his estate to
leave
under
estate;
any
and whether there was
evidence
plaintiff
(charged
And
tiff.
acceptance
of
pertaining
an offer and
ato
man)
bound
of a
standard
reasonable
part
it,
point up
contract for
to
of
serves
leave
to
could
then
know that Nichols
supposed
fact that the
been
contract has not
Thus,
must
property
her.
it
all his
sufficiently
what
established for us
know
marriage
necessarily be
that his
concluded
portion
supposedly
of
Nichols estate
offer,
if there was
impliedly revoked an
involved
what the terms of the contract
estate;
one,
plaintiff
his
to leave
supposed
is no wonder
be.
It
acceptance pertaining
zvas no
or
there
upon
trial court said
letters
it.
a contract for
of
of
relies
fix the terms
did not
Contracts,
50, p.
Restatement,
In
§
definiteness.
with sufficient
where,
qualification that
without
is stated
event,
any
being
completed
no
there
making
offer and before
after
contract
at the time of
existence
proposed contract becomes
acceptance, the
Nichols;
having
marriage
second
illegal,
offer is terminated.
contract,
him to
been unlawful for
after
estate;
marriage, for
his
there
all of
uniformly
that death of an
held
It
act
having been no
for
offer-
performance
acceptance
prior to
or
offeror
estate,
portion
pertaining
a
of such
completion
a
offeree renders
her-supposed performance;
at the time of
can
impossible, because no contract
contract
having
and the idea
been contradicted that
disability
death or
be
after the
consummated
plaintiff’s
consideration was the act
Headley Tobacco
party. New
of either
States,
coming
there could
to the United
Ky.
Ex’r,
Gentry’s
Co. v.
Warehouse
a
contract
to base
See also
857, 212
S.W.2d
damages upon.
action for
cause of
38; and 1 Williston
Am.Jur.2d, Contracts §
a
that,
proposition
in the
absence
(3rd Ed).
Contracts,
pp.-206-207
contract,
completed
previously
an uncle
married, complete a
cannot,
marriage Nichols
after
has
bar,
the case
a
give
give
contract to
all of
estate
valid
completion
a contract
rendered
the next sub-
has a connection with
impossible,
niece
property to
all his
,
ject
my opinion.
reasons
Additional
(§§ 2-47
Wyoming
laws of
because the
authority
such
a
citation
and the
not allow
2-217) would
2-213 to
in the
set out
proposition will therefore
enforced.
recognized or
to be
agree-
person may make a valid
saying
pertaining to
succeeding discussion
of his
binding
dispose
ment
himself to
rights
aof wife.
way,
particular
but such
Rights
of Wife
consideration,
adequate
show
contract must
establishing
leading cases in
One
certain,
definite and
must be
specific performance
principle
remedy
asked for must not be harsh
a decedent
it is claimed
not be decreed where
parties
unjust
oppressive
to innocent third
or
property,
plaintiff his
contracted to leave
against public policy.
or
oppressive
be harsh
if the result would
parties, is
unjust
innocent third
Owens
Also,
Security-First
Nat.
Fowler v.
712-713,
P.
McNally,
Angeles,
Cal.App.2d
113 Cal.
Bank of Los
*14
tell, this
I can
565, 572,
As near as
specifically
Generally, against applied like The rule was in a case much policy or the mandate of public against bar, Wrigley, 119 one Wood *15 the foundation 1053, not be made 90, 1049, statute Cal.App.2d 258 where P.2d action, equity. any either in law brought damages, for nephew an action Co. v. California convey Stockton Morris Plan agreed aunt claiming had to Corp., Cal.App. Equipment 112 Evidence, Tractor including realty him. letters 92; 684, 90, Martinez v. 2d 247 P.2d nephew in which the the aunt John 880, son, 125, 61 Nev. 119 P.2d 882. had willed land aunt twice said she expressed nephew and several times Nichols, marriage, If because of him an intention to leave it to after complete could not a valid contract death, support held insufficient niece leave all of his to his existed. finding that such a contract America, then it must the time she came to seeking damages, for The rule one marriage impliedly be concluded that his give an alleged breach of any possible so, where revoked do property, must establish the contract upon accepted or acted not clear, positive, which is convinc- evidence marriage. any offer at time of the beyond satisfactory, ing, certain and Was Clear Definitef Proof consistently legitimate controversy is so say- my I cannot conclude dissent without accepted country this and followed in court, my opinion, ing trial accepted rule. must as a universal quite right ruling contract such cases from Some of the more recent states give alleged (that Nichols would one here area, applied have in the Pacific coming all his estate rule, following: this States) by direct has to be shown United 90, Wrigley, Cal.App.2d 119 Wood v. opin- Gray’s and definite evidence. Justice Lichtenthaler, 1049; Lynch 258 P.2d v. authority states, "some” ion while there is 77; Cal.App.2d 437, Hoff 85 193 P.2d effect, far. gone to that Armbruster, 198, P.2d v. 242 125 Colo. 134, 604; ex- 106 gone Pickering, For Wehrle v. Colo. think we have far. I court, 737; Thomas, P.2d v. 83 ample, Blume 102 Thomas Justice 935; Ihmsen, Wyo. 439, 86, P. v. 240 33 Idaho 357 P.2d Anderson Canada v. 351; 928, 1010, 112, 927, Whipple, con- 71 43 said such Idaho 227 P.2d A.L.R. favored, gen- Flatness, 37, 211 v. Idaho are not courts 70 tracts Johnson they 769; Estate, hold, reason, re 188 erally P.2d In Mueseler’s good 407, 653; 'clearly en- re in order to be Kan. Duncan’s must be shown 362 P.2d 1112; Estate, 427, Also, Supreme 186 350 P.2d Court Kan. forceable. 704 49, Estate, 193 Kan. 165 re
In Wert’s SMITH, (Defendant Appellant below), Helen Kan. 166 253, opinion adhered P.2d v. Woodard, 793; v. 159, P.2d Shook 199 CASPER, Appellee CITY OF 750; v. 519, Cox 290 P.2d Mont. 129 (Plaintiff below). 614; 512, 227 P.2d Williamson, 124 Mont. No. 3539. 439, 356 Lindley, N.M. Lindley 67 v. Polanslty, 48 455; McDonald v. P.2d Wyoming. Supreme Court 670; v. 518, Barchus 153 P.2d N.M. 7, Nov. 268, Co., P.2d 366 Trust 229 Or. Pioneer 261, 147 Allen, 890; 174 Or. v. Hunter matter 213, to other modified as P.2d 936; Silhavy v. 261, 148 P.2d 174 Or. 1047; 110,
Doane, P.2d 309 50 Wash.2d 395, Blumhardt, 48 Wash.2d Ferris v. Busse, 935; 45 Boettcher v.
293 P.2d 368, 49 A.L.R.2d 277 P.2d
Wash.2d Estate,
191; 41 Hickman’s Wash.2d In re 524; Campbell, P.2d v. Jansen 175; .2d 227 P.2d 37 Wash Jen
nings D’Hooghe, v. Wash.2d 189; McGregor McGregor,
P.2d v. 694; Auger v. 171 P.2d
Wash.2d Shideler, 23 Wash.2d 161 P.2d
Whiting Armstrong, 23 Wash.2d 1014; Payn Hoge, 21 Wash. P.2d *16 939; Pence, 16
2d 149 P.2d Dau v. and Aho v.
Wash.2d P.2d
Ahola, 104 P.2d Wash.2d it, I judge
As the trial in the case see finding
at bar correct in that the let- upon by fix
ters relied did not terms of with sufficient
definiteness, and proof
of this must nature be direct and definite. regrettable being
It is that he is reversed finding.
on such a
For the four reasons discussed herein judgment ought of the district court
to be affirmed and not reversed. The con- inescapable, pointed
clusion as I
out, any time that Nichols did not remarriage
after promise give any property Consequently,
niece at all. recovery
there is no basis of dam-
ages, given the even if status daughter.
an adult The law has not seen prohibit
fit willing a husband from regardless
of his estate to his wife minor
or daughters, adopted adult sons
natural.