Herr v. McAllister

JOHNS, J. The deceased D. A. McAllister, familiarly known as “Bud,” was an old, prominent resident of Union County and the owner of considerable property exclusive of the town lot in controversy. For some time prior to his death with his wife he had resided upon the lot, and it was their home. On account of his wife’s sickness, the plaintiff was employed by them to do'the work around the house and to take care of Mrs. McAllister. To regain her health, D. A. McAllister took his wife to California, [585] where she died and was brought back to La Grande for burial. The plaintiff had three boys, two of whom were twins about the age of 10 years and the other about 23 years of age. After the death of the testator’s wife, the plaintiff with her minor children continued to live at the McAllister home and performed the same kind of household duties that she did prior to the death of Mrs. McAllister. It appears from the testimony that the home was of the probable value of about $3,000, and that it had a rental value of about $25 per month. The plaintiff admits that for the period of about three months after Mrs, McAllister’s death there was no specific agreement between her and D. A. McAllister concerning the home place, but contends that in November, 1914, the oral agreement was made by which “he would and did give her” the home in consideration of what she had done and what “she was to continue to do” in taking care of and keeping house for him until his death, and that she accepted the proposition and performed her part of the agreement, and that in compliance therewith “Uncle Bud” paid the water rent and light bills, and the taxes on the home property which were assessed in his name; that he failed and neglected to give her the property during his lifetime and that the defendants refuse to carry out the agreement. It appears that the plaintiff and her two minor children had a home and that “Uncle Bud” purchased and paid for at least some of the provisions which they consumed, and made some improvements upon the property. For this he received nothing but his board and some little personal care and attention from the plaintiff. [586] There is no claim that any deed was ever executed or that there was any written contract. The deceased executed his last will on January 11, 1915, in and by which he devised all his property to the defendants, “except Lot 16 in Block 2 in Grandy’s Second Addition to La Grande, Oregon, which property is not included in this will.” There is testimony tending to show that on June 7, 1915, attorney J. P. Busk, at the request of the deceased, prepared a codicil to the will in and by which the property in question would have been devised to the plaintiff. The original will consisted of two typewritten sheets of paper, the first of which was signed by the deceased, and the second by the witnesses. The same was in the bank across the street from the attorney’s office and Mr. Busk testifies that he delivered the codicil to Mr. McAllister and advised him that to make it effective it would be necessary to attach it to and make it "a part of the will itself, but there is nothing to show or indicate that the codicil was ever attached to or made a part of the original will, or what was ever done with the codicil after it was delivered to Mr. McAllister. While it may be true that at one time Mr. McAllister did intend that the plaintiff should have the property in question at his death, as evidenced by the preparation of the codicil, the fact remains that there is no evidence that such intention, if any, was ever carried into execution, or that the codicil was ever attached to or became a part of the original will. The plaintiff claimed and testified that at the time of the execution of the alleged oral agreement she entered into and took possession of the property, but she does not say how or in' what manner she took possession and there is no testimony of any eviction or [587] ouster, that there was ever any change of possession, that she had any other possession after the alleged oral agreement than she had before, that the deceased ever intended to surrender or part with his property or that he conveyed or ever did intend to convey or part with the title to the property during his lifetime. On this question the facts are very similar to those in Brown v. Lord, 7 Or. 302, 314, where this court sáid: “He, to all appearances, exercised as much authority and control after as he did before the alleged contract. He maintained and supported himself and his wife out of his own means, and no one could detect any change in the condition of his affairs which would lead him to suppose that the old gentleman had ceased to be the owner of the house in which he had lived so long. We think the possession of the premises by the respondent under the alleged parol agreement is not sufficient to take this case out of the operation of the statute. ’ ’ 1. The only evidence of the parol contract is the testimony of the plaintiff as to an alleged conversation which she claims to have had with the deceased. The law on this class of testimony is well stated by Mr. Justice McBride in Hawkins v. Doe, 60 Or. 437, 441 (119 Pac. 754, 756, Ann. Cas. 1914A, 765), on page 441 of the opinion: “Where the contract rests wholly in parol and the alleged promisor is dead, courts should demand clear and satisfactory proof of the terms of the agreement, and its strict performance by the promisee. Such cases furnish abundant opportunity for the perpetration of those frauds which it was the object of the statute to prevent by requiring the contract to be reduced to writing.” On page 446 of 60 Or., page 757 of 119 Pac., Ann. Cas. 1914A, 765: [588] “Our statute requires the judge presiding at jury trials to instruct them that evidence of the oral admission of a party should be viewed with caution .(Section 868, L. O. L.), and, if this is the rule as to admissions of parties living and able to explain their language and meaning, with how much greater force should it apply when the evidence is directed to the alleged declarations of one whose lips are sealed in death, and to establish a contract which the law requires to be in writing. ’ ’ 2. There is a mass of testimony as to the value of the services which were rendered by the plaintiff to the deceased, but when we take into consideration the fact that the plaintiff and her children had a home, that the deceased paid the taxes, the light and water bills, bought at least some of the provisions for all of them, and received nothing but his board and ordinary care and attention, we agree with the trial court that the plaintiff was fully compensated-for her services. As a matter of fact we are convinced from the testimony that it was the understanding and agreement between them that one claim was to offset the other, and that there never was any contract by which the deceased promised or agreed to convey the home property to the plaintiff. The legal contentions of plaintiff’s counsel are sound, but they are not sustained by the evidence. The decree is affirmed, without costs to either party. Affirmed.