122 Neb. 15 | Neb. | 1931
In this action plaintiff seeks specific performance of an alleged oral contract to devise realty and bequeath personalty to her. Defendants are the next of kin of Mary Ellen Voorhees, deceased, executors of her last will and testament, and legatees mentioned in said will.
Plaintiff alleged that in December, 1900, Mr. and Mrs. Voorhees requested of plaintiff’s parents the privilege of taking the plaintiff with them to live as their child, and that plaintiff’s parents consented to such request and allowed Mr. and Mrs. Voorhees to take the plaintiff on the following expressed conditions: That plaintiff’s parents would give to Mr. and Mrs. Voorhees her custody, care and control, in consideration and on agreement that Mr. and Mrs. Voorhees would receive said child as their own, care for her, rear and educate her, and that at their death the plaintiff should receive their entire estate, including all the real and personal property of which they might die possessed. Plaintiff averred that she went to live with Mr. and Mrs. Voorhees at the time and on the terms mentioned aforesaid, and continued to live with them uninterruptedly until they died; that Mr. Voorhees died on the 5th of February, 1925, and Mrs. Voorhees on the 27th of April, 1930.
Defendants denied the making of the oral contract and denied that plaintiff had performed her part of the alleged contract by continuously living with the Voorhees family as a daughter. The trial court found for plaintiff and entered a decree awarding plaintiff one-half of the estate of Mrs. Voorhees. Defendants have appealed.
This court has frequently held: “The contract of a married woman can only be enforced against the separate estate which she possessed at the date of the contract.” Kocher v. Cornell, 59 Neb. 315. See Grand Island Banking Co. v. Wright, 53 Neb. 574; Marsh v. Marsh, 92 Neb. 189; Giltner State Bank v. Talich, 115 Neb. 236. However, since that question was not raised or discussed in the briefs or on oral argument, we refrain from determining the question in the instant case.
At the date of the alleged oral contract, plaintiff was 16 years of age, and Mr. and Mrs. Voorhees had no children of their own. The only witness who testified to the alleged contract was a sister of the plaintiff. According to her testimony, plaintiff, for about two weeks prior to the date of the alleged contract, had been staying in the Voorhees family. With their mother, plaintiff and witness went to the Voorhees home, when, as testified by her, the following occurred: Mrs. Snyder (plaintiff’s mother) “wanted Carrie (the plaintiff) to come home with her.” The mother said: “ ‘You know Dad and Carrie don’t get along,’ and Mrs. Voorhees spoke up and said, ‘Let her stay with us, make her home with us;’ and she turned to Mr. Voorhees, whom they called Dad, and said, ‘We would like to have her stay with us, wouldn’t we?’ and he said, ‘We sure would.’” Mrs. Snyder said: “I would like very much to have Carrie come home with me, but if she does not want to, and you will promise that you will take care of her, she can stay.” Mrs. Voorhees answered: “ ‘Dad, when we are gone,’ she said, ‘everything we have will be left to Carrie and Lester, and I will leave one dollar to my brother,’ to which Mrs. Snyder said, ‘All right, then, I will trust that you take care of Carrie, and I will leave her.’ ”
On the other hand, there is evidence that the Voorhees home, at that time and for several years subsequently, was a bungalow, with six rooms, and having three bedrooms; that two young men, or boys, for one of whom Mr. Voorhees was guardian, were staying in the Voorhees home; that Mr. and Mrs. Voorhees occupied one of the bedrooms and each of the boys occupied another; that plaintiff did not stay at the Voorhees home, but was there occasionally, working and helping Mrs. Voorhees with the housework. There is evidence that plaintiff worked out as a seamstress, and spent considerable time in Sioux City, Iowa, but made occasional visits to the Voorhees home; that she worked at other times, earning wages, and purchased her own clothing. Mr. Voorhees died in 1925, and left a will, dated two or three years after the date of the alleged contract, in which he devised and bequeathed all of his property to Mrs. Voorhees. Mrs. Voorhees made a will in 1926, in which she devised to plaintiff the residence property, in which she was then living, valued at, perhaps, $8,000, together with some articles of personalty, and devising and bequeathing the remainder of her property to charitable institutions and various persons. Two or three years later she made another will, in which she left nothing to the plaintiff, but did make a substantial bequest to plaintiff’s daughter, and bequeathed the remainder of her property to charitable institutions, relatives and various other persons. It also appears that Mrs. Voorhees was rather close in money matters. It may be said that the statements,
It follows that the judgment of the district court is erroneous. It is hereby reversed, and the action dismissed.
Reversed and dismissed.