196 P. 978 | Mont. | 1921
Lead Opinion
delivered the opinion of the court.
Lucy Wilburn brought this action in the district court of Ravalli county to enforce specific performance of an ante-nuptial oral agreement alleged to have been made between Joseph Wagner and her mother at a time the pleader was unable to fix.
The complaint alleges that Joseph Wagner expressly agreed, in consideration that plaintiff’s mother would marry him and allow him to adopt the plaintiff as his own child and change her name from Lucy Lamaster to Lucy Wagner, and to have the care, custody, direction, companionship, love and devotion of the plaintiff until she should marry, he would, at his death, make her his heir and give and devise unto her a child’s part and portion of his property and estate, the same as though she was Ms own bodily heir. The answer admits the marriage but denies that the agreement was ever made, and avers that, if it ever was made, it is invalid and unenforceable under the statute of frauds as embodied in section 5017 of the Revised Codes. The case was tried in the court below with the aid of a jury, their answer to special interrogatories submitted to them being that the testator, Joseph Wagner, prior to his marriage with the plaintiff’s mother, made the contract sued on. The plaintiff moved the court to adopt the findings of the jury and to adjudge the plaintiff entitled to an undivided one-third of the estate. The court, instead, made findings of fact and conclusions of law of its own, to the effect that Joseph Wagner and" the mother of the plaintiff did not, before their marriage nor at any other time, make or enter into an oral, or any other, contract whereby the plaintiff was to be, or ever was adopted as, the heir of the deceased, or that he ever agreed that he would devise or bequeath to her a child’s part of his estate at the time of his death, but did, by will, bequeath the plaintiff the sum of $500, and rendered a judgment dismissing the action and denied a motion for a new trial. The plaintiff appeals from the judgment and order.
Frank See, the only witness present when the contract is alleged to have been made, testified on direct examination as follows: “Q. Did Lucy’s mother say she would not marry him unless he made Lucy his heir? A. Yes. Q. That was before the marriage? A. Yes. Q. How long before the marriage? A. Quite a long time. Q. A few hours? A. Yes, two or three days, a week or two. Q. He was up there then some time before they were married? A. Yes. Q. After they were married, did Joe Wagner ever say anything to you as to this agreement he had with his wife about making Lucy his heir? A. I do not know as he said anything to me personally; I heard him say it. Q. What did he say? Did you hear him say it in your absence? A. Yes. It was talk with the folks, what he agreed to do, he said he would do it. Q. Tell what the conversation was,—what did he say about it after the marriage was over? A. He said he would do as he agreed to, he would make her his heir the same as his own, if he ever had any. Q. Was anything said about what share he was to give, the plaintiff in this case as an heir? A. Well, no, no. Q. Did he say anything with reference to her having a child’s part or what did he say, if anything? A. She was to share equal. Q. Equal with whom? A. With his heirs. Q. Was that talked over several times during the period that you and he were there? A. Yes. Q. And in the presence of the Poole family, you say? A. Yes. Q. Of whom did the Poole family consist? A. John Poole and his wife and Lucy’s mother, Miss Lamaster it was then. Q. Those people are all dead now except Lucy? A. Yes.” On cross-examination he testified: ”Q. How long had you been living in the vicinity before the marriage took place? A. Ever since ’68. Q. And how old were you? A. At the time this marriage took place I must have been fifteen or sixteen years old. Q. And frpm that time up until the time of Joe Wagner’s death did you ever
The testimony of the witness Robert King, a neighbor, was that he had known Joseph Wagner and Lizzie Lamastcr since 1887, had worked for them at different times, and had opportunities to observe the attitude of Joseph Wagner to Lucy, and of all the members of the family toward each other, and that, so far as he could see, they were not different from the ordinary family relations; that one afternoon .in the year 1892 he stopped at their place; that Lucy and her mother were about to leave on account of some difficulty; that Joe Wagner talked over the “fuss” with him a little bit, and told him it grew out of the fact that Lizzie, his wife, had accused him of being mean to Lucy, putting more on to her, as he termed it, and favored the other two children, “something like that.” “He told me he had tried to treat Lucy as good as the other children and he had promised to do that when he had taken her as a baby, and he' asked me if' I had noticed any difference during the timé I had been around there, and I told him no.”
If the theory of the plaintiff is to be accepted, the thing that finally induced Lizzie Lamaster to yield to the importunities of Joseph Wagner was not so much the advantage of having her child constantly within her keeping, as it was her desire to secure to Lucy the right to inherit a child’s portion of Joseph’s property, at his death. The property Joseph then owned consisted of a cow, a team of horses and a claim upon the publie domain—then considered hardly worth the trouble and expense of proving up. Is it possible that considerations of that character could find a place in the mind of a girl so young? And if so, did she place them above the nearer consideration of a permanent home for herself and child? Did she anticipate what would be left to satisfy the contract, and how many there would be to share it? Finally, could a young man, as youthful as See then was, accurately recollect and repeat details of the conversation making up the true point of the agreement the parties intended, so many years after? These were all dependent and interwoven elements for consideration in weighing the proof and settling the issues.
It is in evidence that Lizzie Lamaster and Joseph Wagner left the Wagner place on the morning of the wedding for the purpose of obtaining the consent of Mr. and Mrs. Poole to their marriage, and that their approval was withheld until Joseph and Lizzie had agreed to be married at the Poole place on that day; that the neighbors went to the Wagner home in response to invitations to be present at the wedding and participate in the celebration, but that they did not return until the evening after. If Isador Wagner’s statement that Lizzie was not absent from the Wagner place from the time she came
Mrs. Buckhouse, a neighbor of the Wagners, and other witnesses testified that they went to the Wagner home to be present at the wedding, but on arriving found that the couple had left for the Poole place; that they waited there until the couple returned on the following day and participated in the celebration of the wedding feast.
It was within the province of the district court to believe the testimony of Isador Wagner in preference to the dubitable account See essayed to give of the occurrences at the time the contract was made. In view of the lapse of time, the youth of See, the discrepancies in his testimony and his faulty narrative of the facts .attending the transaction upon which the action is based, and from the evidence as a whole, the court was justified in holding that the case was founded more on imagination and hearsay than upon the impressions actually received by the witnesses from the happenings themselves. Having concluded that the plaintiff, had failed to establish her ease, its judgment must be accorded the presumption attending the conclusion of every court of first impression. In all eases of this nature, courts must jealously uphold the quantum of proof; for if the standard is to be lowered or weakened, there is grave danger that unfounded claims may be fastened upon estates of persons after their decease, solely because of the absence of countervailing evidence. Unless we do find ourselves able to say that the weight of the evidence is decidedly against the finding of the court below, we are not free to interfere with its final judgment. (Wright v. Brooks, 47 Mont. 99, 130 Pac. 968.)
Conceding, for the vpurpose of argument, that there was a
Specific performance will be decreed only in the sound discretion
Neither the integrity nor the good faith of any witness is intended to be impugned by anything we have said. Unfortunately for plaintiff, all the evidence offered to establish the contract purported to be nothing more than mere verbal declarations and statements of the deceased, the witnesses to them having no other means of identifying the expressions used than their power to recall details of conversations after the lapse of many years. What can better emphasize the wisdom of the statute of frauds than the example this very case affords? And what better reason can move a court of equity to require not only clear proof of the accuracy of oral statements, but proof that convinces the mind that the relief sought was just what the contracting parties intended?
After carefully reading all the evidence in the cold type to which we are confined, and patiently reviewing all the questions counsel suggest, we are not able to convince ourselves that the district court, in closer view of all the elements attending the subject matter of'the inquiry and an opportunity to scan the faces of the witnesses and observe their demeanor under examination, has either misjudged the evidence or wrongfully refused the relief demanded.
The judgment and order are affirmed.
I'Affirmed..
Concurrence Opinion
We concur in the result reached by Mr. Justice Cooper but think he has extended his discussion beyond what the exigency of the case requires and that a part of it is not entirely pertinent to the question presented by the record, viz.: Does the evidence clearly preponderate against the finding of the district court? It is apparent that if the testimony of defendants’ witnesses is to be accepted as true, that' of the witnesses for plaintiff must be rejected entirely. A