107 Neb. 747 | Neb. | 1922
Lead Opinion
On January 15, 1919, one William P. Warnick died intestate in Polk county, Nebraska, leaving surviving him his widow, Elizabeth Warnick, and three children, Charles A. Warnick, Emma J. Warnick, and William H. Warnick. This suit was instituted in the district court for said county by Charles A. Warnick and Emma
The plaintiffs’ claim is based upon an oral contract, and in their petition it is alleged that on or about the 10th day of December, 1896, the said William P. Warnick Avas the owner of a certain designated farm, and Avas residing thereon Avith his family; said farm Avith improvements not exceeding in value $7,500; that he had personal property not to exceed in value $500; that said farm Avas incumbered by a mortgage of $600; that he was dependent upon his children to operate said farm and make a livelihood for the family, and greatly desired that the defendant William H. Warnick, the eldest son, stay Avith them, which he refused to do; that he became ill-behaved and ill-Avilled, and unfilial in character, and abusive in word and action, tOAvard his father; that on or about said date he left home and ever since remained unrepentant and aAvay from his parents, except for two or three brief visits prior to the death of his father; that, after said William H. Warnick had left home, .plaintiffs’ said parents became much worried about operating and keeping said farm and very solicitous that plaintiffs, their remaining children, should take care of them in their declining years, and stay with.them as long as they or the survivor of them should live, and help them keep their property together, and, being much grieved over the unfilial conduct of their eldest son, they then entered into an oral contract with these plaintiffs, jointly, that if plaintiffs would remain with said parents and the survivor of them, as the case might be, and help at all times thereafter, to the best of their ability, to make the farm sustain the family, and ultimately take charge and
The defendant Elizabeth Warnick filed an answer in which she admits in entirety all of the allegations of the plaintiffs’ petition, and alleges that said action was brought by the plaintiffs with her consent and full knowledge, and to satisfy her wish and desire that the agreement between herself and husband and the plaintiffs may in equity and justice be fulfilled according to the terms thereof, which are exactly as pleaded in the plaintiffs’ petition, and that the plaintiffs may be de-' creed to be the absolute owners of the property which
The appellant, William H. Warnick, by answer and cross-petition, denies the alleged contract and other material averments of the petition, avers that the alleged oral contract was void under the statute of frauds, and prays for partition of said real estate.
The decree was for the plaintiffs, and the defendant William H. Warnick appeals.
The appellant contends that the court erred in admitting the testimony of Elizabeth Warnick, the widow, and Mrs. Bert Warnick, wife of Charles A. Warnick, as to the making of the contract. It is probable that Elizabeth Warnick took part in some of the conversations concerning which she testified; but the record also shows that she took no part in many of the conversations as to which her testimony related. It also appears that the witness, Mrs. Charles A. Warnick, had no . part in the conversation concerning which she testified. Although the witness may have a direct legal interest in the result of a suit, still he is a competent witness against the representative of a deceased person as to any conversation between the deceased and a third person, in which the witness took no part. DeWulf v. DeWulf, 104 Neb. 105; McNea v. Moran, 101 Neb. 476; In re Estate of Powers, 79 Neb. 680; Kroh v. Heins, 48 Neb. 691.
After the. evidence just referred to was received, the appellant offered in evidence, without any reservation or limitation as to purpose, the plaintiffs’ petition and the answer of the defendant Elizabeth Warnick. These documents set- out the transactions concerning which the testimony of Elizabeth Warnick and Mrs. Charles A. Warnick, complained of, was offered. Section 7894, Rev. St. 1913, specially excepts from the provisions of that statute the testimony of such a witness where the adverse party shall have introduced a witness who has testified in regard to such transaction or conversation.
On the part of the appellees it is contended that the petition and answer of Elizabeth Warnick having been offered in evidence by appellant without any reservation or limitation as to purpose for which offered, and that the appellant is bound by the allegations therein not rebutted or controverted by other evidence. The rule in such cases appears to be that, where a party to a suit introduces in evidence his adversary’s pleadings without any reservations or limitations as to the purpose for which offered, all the statements in such documents, like other admissions, are to be taken together, what makes for the pleader, as well as what makes against him; and in such case, where the allegations of such pleadings are not rebutted or controverted by other evidence, such allegations will stand as admissions. Portland Body Works v. McCullough Motor Supply Co., 119 N. E. (Ind. App.) 180; Yates v. People, 207 Ill. 316; McCord v. Durant, 134 Pa. St. 184; Chicago & A, R. Co. v. Harrington, 192 Ill. 9; Baskett v. Jones, 189 Ky. 391.
It appears from the evidence that for several years prior to arriving at the age of majority the appellant, 'William H. Warnick, was given to quarreling with his father, and that he was unfilial in his attitude. It is suggested in the appellant’s brief that the disagreements were due to certain idiosyncrasies of temper and temperament of the father. So far as the record discloses, we believe the only fair conclusion is that the trouble was due to the fault of the appellant, and not of his father. He was not only unable to get along with his father, but with the other members of the family and with his wife, after marriage. This trouble with his father was carried to the extent of threatening and attempting personal
At the time of the father’s death the appellee Charles A- Warnick was about 35 years, of age, and the appellee Emma J. Warnick 43 years of age, she having never married. Soon after the appellant left home in 1896, the father told his remaining children that, if they would stay at home and do what was right, when he was through with what he had, they should have it; that the appellant, William II. Warnick, should not get any of his property if he could help it. He made these statements and promises in the presence of Elizabeth Warnick, Mrs. Bert Warnick, prior to her marriage with Charles A. Warnick, and Charles Doremus. He made and repeated the statements many times. This evidence is corroborated by declarations of the deceased to various neighbors, that the appellant, his son, should
We believe that the finding that the contract was made and the services were performed by appellees in
The decree of the district court is
Affirmed.
Dissenting Opinion
dissenting.
I am unable to agree with the opinion of the court in this case. The proof, according to our decisions in Remaly v. Sweet, 106 Neb. 327, Overlander v. Ware, 103 Neb. 375, and other cases, is entirely insufficient, in my opinion, to sustain the judgment.
William P. Warnick died intestate. He left three children. It is the contention that he made an oral contract with two of these children that they should, after his death, receiye his estate, and that one child, William, should be excluded from any inheritance. It appears that William was a wayward son, and the testimony of several witnesses shows repeated statements by the father that he did not intend that William should receive any share in his property after his death. The oral contract is alleged to have been made when the children were young and minors, and, as set out in the opinion, purports to be nothing more than statements by the father that he was displeased with the actions of William, that he intended to disinherit him, and a promise that, if the other two children should remain at home and “do what was right,” they should inherit the property. What they were required to do in order to “do what was right” is, by the alleged contract, indefinite and left entirely to conjecture. It was the natural duty of these children, and one which the parent could enforce, that they should remain at home and do what was right during their minor
It seems to me that the rule, established by the opinion in this case, goes far to leave the matter of the descent of property to the hazard of verbal testimony, and to undo the salutary purpose furnished by the statute, which-requires that wills shall be in writing and shall be executed, in the presence of disinterested witnesses.