Public-domain · open source
OpenJurist

87 Neb. 408

Cobb v. Macfarland

Nebraska Supreme Court

Decided June 29, 1910

Nebraska Supreme Court · decided 1910-06-29

<p>1. Wills: Election. No general rule can be formulated defining what acts of acceptance or acquiescence shall be sufficient to constitute an election between a devise in a will and a right inconsistent with the will. There must be an intention to make an election or some decisive act that will prevent restoring the parties affected to the same situation as if such act had not been performed.</p> <p>2. -: -. An attempt to take both the property given by the will and the right inconsistent with the will does not constitute an election; when one is taken and the other rejected there is an election; if one is taken, and the situation of the parties affected is so changed with reference to the property or rights involved that they cannot be restored to their former situation, the election is complete.</p> <p>3. -: Payment of Mortgage: Prior Conveyance. The provision in a will that the mortgage upon a certain tract of land shall be paid out of the estate is not inconsistent with a former contract by the testator to convey the land to another.</p> <p>4. Statute of Frauds: Sale of Land: Parol Contract: Part Performance. The effect of section 6 of the statute' of frauds (Comp. St. 1909, ch. 32) is to continue the practice by which at the time of enacting the statute courts of equity compelled the specific performance of parol contract to convey real estate for the purpose of preventing fraud and injustice when there has been a part performance.</p> <p>5. Evidence: Statements of Decedents. Testimony as to statements made by a deceased person many years before the testimony is given must be scrutinized closely; but when it appears that the circumstances were such that the parties testifying must have given close attention to the statements when made, and to the exact meaning of the party who made them, and strongly indicate the reasonableness and probability of the statements, and the statements are against the apparent interest of the party making them, such evidence may be sufficient to establish the fact stated.</p> <p>6. Statute of Frauds: Sale of Land: Parol Contract: Part Performance. Payment of the consideration for the conveyance of real estate, the purchaser being in possession at the time of such, payment and continuing in possession and making valuable, permanent improvements on the land without any agreement as to the terms of such possession, will be such part performance as to take the contract to convey out of the statute of frauds.</p>

Relies on Teske v. Dittberner · Peterson v. Estate of Bauer · Teske v. Dittberner

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1910-06-29

How this case has been cited

Cited by 12 later decisions — most recently June 1982

12 state decisions

5019101920193019401950196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Letton and Root, JJ.,

¶1dissenting.

¶2The plaintiff’s right to the relief she asks is predicated upon the existence of a contract between her and General Cobb that he would convey the entire tract of land sued for in return for the surrender to him' and the sureties of her husband of the money from the life insurance policies iof which she was the beneficiary. We are convinced from a careful reading of the testimony that no definite contract has been proved. No one has testified to the terms of the contract declared upon in the petition. The testimony concerning General Cobb’s declarations is in many respects proof of testamentary intentions merely. A number of witnesses testify to such expressions as that “he always intended the farm to go to Mrs. Cobb and children;” “he intended the farm for Mrs. Cobb and the boys;” that when he was dead the farm “was to belong to Mrs. Cobb and the boys;” “I have given that farm to Carrie. Then he said something about Carrie and the boys having the farm.” While other witnesses testify that, in speaking of the surrender of insurance money by Mrs. Cobb, the deceased said: “She would lose nothing by it. She was to get the farm that he intended Maxey to have.” “He intended to give it (the farm) to Mrs. Cobb.” “He intended the farm now for Maxey’s wife and children.” “Mrs. Cobb was going to have the farm and boys to have their share.” “I have told her she will have the farm.” “The farm goes to Carrie because she has furnished us her life insurance money to help settle with the county.” “Carrie turned over her insurance and I gave her Maxey’s farm.”

¶3It seems to us, upon the entire record, that the mind must remain in doubt as to whether a contract was made, or, if made, whether it contemplated devising or conveying this land to the plaintiff or to the plaintiff and her sons. The evidence fails to prove with any certainty the existence of the contract alleged, and it also fails to point out definitely the specific tract of land to which the language used by General Cobb was meant to be applied.

¶4*422Furthermore, the declarations of the plaintiff are inconsistent with the existence of such a contract. Shortly before General Cobb’s death she acted as his agent in seeking a purchaser for the land. She corresponded with him and gave her views concerning the price for which the general could profitably sell the farm, and fully recognized his right to treat it as his own. She stated at the court house, when the will was read, that General Cobb had promised to leave her one-half of his estate. Her statements to Mrs. Macfarland, at all times before and after General Cobb’s death, were with reference to a share of the estate, and at no time till months after General Cobb had passed away did she assert any contractual right to this land.

¶5She sent General Cobb about $800 per annum apparently for the use of the land during the years she occupied it subsequent to her husband’s death. In 1905 she wrote she was sorry she had not remitted what she ought to have sent from the farm. It may also be observed -that, in the proceedings brought by her to collect from the estate the amount of her claim for money advanced to General Cobb, her counsel, Judge Harvey, was willing to concede a credit of $8,000, which is ignored in these proceedings.

¶6At the time of the payment of the shortage, the land was worth, as near as can be judged from the testimony, from $12 to $18 an acre. It is a matter of common knowledge that following the panic, in 1896, farm lands in eastern Nebraska appreciated rapidly in value. It seems reasonable to believe that when General Cobb by his last will and testament in 1902 gave the boys and the mother one-half of the whole 1,240 acres, he believed that he was doing by them just as he had contemplated and given them to expect.

¶7We have said that where it is sought to set aside the provisions of a will by proof of an oral agreement by which the property which is the subject of the will is otherwise disposed of the agreement must be established, *423if at all, by clear, convincing, and satisfactory evidence. Rau v. Rau, 79 Neb. 694; Teske v. Dittberner, 65 Neb. 167, 70 Neb. 544; Peterson v. Estate of Bauer, 76 Neb. 652, 661. This is a sound rule, and the barrier afforded by it to a disposition of estates other than that intended by the owner in his lifetime should not be relaxed. This court has already gone to the limit in changing the disposition of property after the owners of it have passed away and are unable to help themselves. It is not the province of the courts to distribute estates as they think most just and equitable. Their sole function is not to decide what the deceased should have done, but to ascertain what he did in fact do, and in our opinion the quantum of proof required to establish the agreement alleged has not been produced.

/87/neb/408 · .json · Public domain