Sample v. Collins

GiveN, J. 1-taction: ap. I. The appellees move to dismiss the appeal on the ground that the decree of the court was fully performed by appellant. It appears, a:®davits died, that after the decision of the court had been announced, and the amount of the supersedeas bond was being considered, the judge suggested that, if the possession of the property was delivered over to plaintiffs’ attorney, the amount would be five hundred dollars ; whereupon the amount of the bond was fixed at five hundred dollars, and the plaintiffs were given possession of the property, but no conveyance was made. This was not such a perfoi’mance of the decree as to prevent an appeal. It was simply a compromise by which to lessen the amount of the supersedeas bond necessary to indemnify the plaintiffs. The real estate which is the most important feature of the contention is still subject to the final decree that may be entered. The motion to dismiss the appeal is overruled. 2.-: evidence. II. We first inquire whether there was an agreement as alleged. There is no evidence of any negotiations or .conversations between the plaintiffs ^ ^ .. , , A and Mrs. Sample as to such an agreement, and nothing to show that such an agreement was made, except as it may be inferred from the relations and acts of the parties, and declarations of Mrs. Sample. Mrs. [27] Sample was stepmother of the plaintiff William, and until her death was upon intimate and friendly terms with him and his wife, Julia H. Sample. Mrs. Sample, deceased, was infirm for several years prior to her death, and for part of the time incapable of taking care of herself. . The only evidence directly tending to show the care and attention given to her by the plaintiffs is that of Mrs. Diver, who testifies that they were there a good deal. “I saw them doing more than I was. She was their stepmother. I do not know that I saw them doing anything. She had a servant. They were there ready to do, and so was I.” Also that of Mrs. Chittenden, who says that they cared for her to the last, about five years. They were there often. Mrs. Chittenden also testifies that Mrs. Sample spoke about the care and attention that William and his wife had given her, and of her dependence upon them for such care. She said that William had talked of going away, and that she felt that he had staid here on her account as much as anything else ; that he had been everything to her, and done everything for her that it was possible for Mm ■ todo. That at one time she offered to stay and assist her, and she said, “ William and Julia will stay.” About all the testimony as to William’s attention to her business is that Mrs. Sample was in the habit of calling him to take her checks to the bank and get money for her. We do not understand from the testimony that he acted for her in any of the real-estate transactions mentioned. The agreement set out surely called for more attention to Mrs. Sample, and to her business, than is ordinarily .given gratuitously by friends and relatives, and yet it is not shown that these plaintiffs rendered the deceased any more care, attention or service than might have been expected from them, in view of their relations. During all these years Mrs. Sample was attended by one and part of the time two servants, both of whom have testified, and could have stated as to plaintiffs’ care and attention to deceased beyond that which appears, if such care and attention had been given. Surely the care and attention shown to have been [28] given not only fails to warrant an inference of agreement as alleged, but to show that such an agreement was performed. The plaintiffs alleged, as part of the consideration for the promise to convey to them the lots in question, the conveyance by them of their interest in the homestead of EL W. Sample, deceased, without consideration. There is not only an entire absence of testimony to show such an agreement, but the written contract, in pursuance of which the homestead was conveyed, shows that it was upon consideration “of the just rights of dower of the said Sarah M. Sample in the estate of H. W. Sample, and that she does not oppose the probating of said will as written.” It appears in testimony that on many occasions, when speaking about the plaintiffs and the property in question, Mrs. Sample, deceased, said that she intended it as a home for the plaintiffs when she was gone. Mr. Collier testifies: “Mrs. Sample told me that she had bought that property; that she felt that if she did not buy a home for Will he would not have one. * * * She wanted a place for a home for William. He had been good to her. She wanted to buy it for a home for him.” H. W. Sample, son of plaintiffs, testified that one day his father was talking to his grandmother about building a house, and “she said: ‘Never mmd about that. Don’t worry about that.’ She did not expect to occupy the place long, and father should have it after she was through with it.” To Mrs. Malcolm she said she wanted to buy the house so she could leave it to her son William for a home, that it was for a home for herself while she should live. Louise Hampton testifies that deceased said she thought she would get a home, and leave it to Mr. Sample’s folks when she was through with it. Mrs. Hale testifies that Mrs. Sample frequently informed her of her intention to purchase a house for her own use during her life, and to leave it at her death to William, and gave as a reason that otherwise he would not have one; that her object in buying the house was to provide a home for William and his family after her death. [29] It will be observed that in these repeated statements of Mrs. Sample no mention is made of any agreement. She speaks of leaving the property so that it would go to plaintiffs at her death, because they had been kind to her, and would not otherwise have a home, but not because of any agreement. The plaintiffs ask specific performance of the parol contract, the existence of which is denied. We think the testimony fails to show that an agreement was made as alleged, and hence that the plaintiffs are not entitled to relief demanded. III. We think defendant’s counterclaim is sufficiently answered in the testimony, and certainly conclusively answered by the clause in Mrs. Sample’s will, wherein she directs her executor to give to Samuel and W. S. Sample “acquittances and releases and receipts in full of all indebtedness and obligations to me, whether due or to become due, and the same shall be released and canceled.” Our conclusion is that the decree of the district court be reversed, and decree be entered dismissing the plaintiffs’ petition, and with judgment that plaintiffs pay the costs. Reversed.