Collins v. Harrell

GANTT, J. — This is a suit to partition 152 acres of land in Schuyler county and eighty acres of land in Macon county, Missouri. The suit was brought in the Schuyler Circuit Court. The plaintiffs and the defendants are the collateral kindred of Caleb Collins, who died intestate, without widow or issue, in Davis county, Iowa, on August 11, 1905, in which last-mentioned county he owned at the time of his death about five hundred acres of land. At the trial the defendants Albert Collins, Ira Collins, James Collins, Edward Collins and Sarah Gibson filed a joint answer disclaiming any interest in the land in suit. Iowa Harrell, a minor, on motion of her guardian, was made a defendant and filed a separate answer claiming title to the 152 acres of land in Schuyler county, and known in the record as — 286 — “The Queen City Farm,” by virtue of an alleged oral contract entered into by and between her and Caleb Collins in his lifetime, in the summer of 1898, when she was less than nine years old, to the effect that if she, the said defendant, would live with him, the said Caleb Collins, stay with him and comfort him until his death, he would give, transfer and convey to her all of the said Schuyler county land above described in consideration therefor. That she accepted said proposition on the part of Caleb Collins and contracted and agreed with the said Caleb Collins to live with him, to stay with him and comfort him until his death, and in pursuance of said agreement, she did live with him and stay and comfort the said Caleb Collins from the time the said agreement was entered into until his death and fully performed the said agreement on her part; that the said Caleb Collins died August 11, 1905, by reason of which said contract and the performance thereof by the defendant the said real estate situated in Schuyler county, Missouri, was owned absolutely by this defendant; that the said Caleb Collins failed and neglected to keep his part of said contract prior to his death and failed to convey, transfer or deed said land to this defendant, and that the plaintiffs herein and the other defendants have no interest in said land. Wherefore she prayed the court for a decree declaring her to be the absolute owner of said real estate and to divest all the title and interest of the plaintiffs and the other defendants in and to said tract of land in Schuyler county, Missouri. Thomas R. Hollingsworth, a minor, by his guardian ad litem, prayed the court to strictly protect his interest. The plaintiffs in reply to the answer of Iowa. Harrell denied all of the allegations therein and for further reply stated that the alleged pretended promise and contract of the said Caleb Collins pleaded in said defendant’s answer to give, transfer and convey the said — 287 — land to the said defendant, if ever made, was not in writing, signed by Caleb Collins. The ease was tried at the November term, 1905, without the intervention of a jury, though the defendant and interpleader, Iowa Harrell, demanded a jury. As her interplea and answer stated a cause in equity for the specific performance of an alleged contract, the issue was not triable before a jury and the court properly refused a jury. To sustain her claim to the land in question, the defendant introduced her mother, Mrs. Maggie Harrell, who testified that she was forty-six years old and that the defendant Iowa was her only child. The witness was married in March, 1878. Iowa Harrell was bom in 1889. Caleb Collins married the sister of the witness and the witness lived with Mr. and Mrs. Collins until witness was married in 1878. Mr. Harrell died in 1890. After the death of her husband, the witness and the defendant, Iowa, went to the home of the deceased, Caleb Collins, where they continued to reside as members of the family until the death of Mrs. Collins in 1898, save and except a portion of that time witness was away settling up her husband’s business. In April, 1902, after Mrs. Collins’s death, the witness bought a small hotel at Leroy, Kansas, took her goods and moved there, taking the defendant,' Iowa, with her for the purpose of giving her a better education and getting her into better society. Witness was for a time a stenographer in a lawyer’s office, but her health failed and she and her daughter returned to the Collins home in Iowa, where they made their home until Mr. Collins’s death in 1905. During all of this' period Caleb Collins gave them a home, clothed and gave them half of the produce and cared for them and sent Iowa to school and paid their medical bills. Caleb Collins became greatly attached to Iowa and on frequent occasions remarked that he intended doing something for her and on several occasions stated that he intended to — 288 — give her the Queen City farm. Mrs. Collins died August 24,1898, and it was on this day that the alleged contract upon which defendant claims the land in suit was entered into. At that time she was less than nine years old. Prom that day until Caleb Collins’s death some seven years later, Mrs. Harrell made her home with him except the short time she' resided in Kansas. She could recall but four conversations with him wherein he mentioned giving Iowa the Queen City farm. The first of these conversations occurred on the day of her sister’s funeral in the yard of Mr. Collins’s residence. She and her brother, Zeke, and his wife and Caleb Collins were standing in the yard talking, Iowa was playing with her cousins, thereupon the witness, Mrs. Harrell, said to Iowa, “We will get our things and go home with brother Zeke and make our home.” Mr. Collins said, “No. ” Iowa was in the yard and he went up to her and said, “You are not going to leave me now in my bereavement and leave me here alone, ’ ’ and he began to cry, and the little girl sympathized with him, she ran to him and put her hands in his hands, and he said, “No, Iowa, stay with me and I will school and educate you and give you all your clothes. You live with me and I will see that you have plenty. ’ ’ And then Iowa put her hands in his, and said: “I am going to stay with Uncle.” And then the two went off in the house together. On cross-examination she gave this version of that conversation, speaking of Mr. Collins: “Cale said, ‘You are not going to leave me now when I am in so much trouble. She is all I have got.’ ” On re-direct examination she stated it in this way: “Cale said if Babe stayed with him until he died he had made up his mind to give her the Queen City farm.” Mrs. Ezekiel Dooley, the wife of Mrs. Harrell’s brother, detailed this conversation in this way: “I re-xhember Mr. Collins came up and said to her, she was not going to leave him, and commenced to cry. The — 289 — little girl went np to Mm and took Mm by the hands and he said, ‘Babe, yon are not going to leave me, yon are all I have got now. ’ He talked on and said if she wonld stay he would always see that she had a home and he wonld school her, that is abont all.” The second conversation occurred abont six months later. She stated that he went on doing for her, we stayed there with him and he said that he had made np Ms mind to give her the Queen City farm. That she was to stay with him and take care of him until the last, or as long as he lived. On cross-examination, she restated it in these words: “Cale said I have made np my mind to give Babe the Queen City farm.” “We were talking abont the home place that we lived on in Iowa and the two farms that he owned and he said he had concluded to give her the Queen City farm. He thought it wonld be better on account of the wood being there than the one we lived on.” The following question was propounded to the witness: “Q. Now, what, if any, condition did he couple with giving her the Queen City farm, what did he say she would have to do after that? A. She would have to stay with him as long as he lived.” When asked what Iowa said, she answered, “She said she would do it. She never gave a word of inclination that she wanted to leave him.” The next conversation occurred on one occasion when EzeHel Dooley was visiting at Mr. Collins’s. It was during the World’s Fair at St. Louis. Zeke’s daughter was with him. This conversation was in the presence of the witness, Mrs. Harrell, Iowa and Ezekiel. She said “Iowa wanted to go to school in St. Louis and stay with Ezekiel. Cale said to her, ‘You know you agreed to stay with me if I would give you the Queen City farm’, and Iowa said, ‘Yes,’ and told him she wanted to go, but she would stay with him for that.” On cross-examination she stated this conversation thus: “Zeke was in the east room with Cale, and witness went in to listen. Cale — 290 — said to Iowa, ‘Babe, I cannot do without yon. Stay with, me and go to school at Stiles another year. Yon know yon promised to stay with me if I would give yon the Queen City farm,’ and she said, ‘Yes.’ Q. Cale said, ‘I cannot do without you, Babe, I promised to give.you the Queen City farm and I want you to stay!’ A. Yes, sir; when she persisted, she said, ‘Yes, I would like to go with my little cousins.’ He said, ‘You know you ought to stay with me. I promised to give you the Queen City farm. ’ ’ ’ Ezekiel Dooley gave this version of that conversation : ‘ ‘ Cale said, you know, Iowa, I told you I would give you the Queen City farm if you would stay with me to the last,” and she said, “Yes.” “Now,” he said, “I want you to stay,” and then he talked like he would make some disposition for another winter; that he might have some place to send her to school. The fourth conversation occurred in October, 1904. Caleb Collins, the deceased, and Mrs. Harrell, were preparing to go to Bloomfield; she says that he had gotten out his tax receipts and placed some land numbers on a piece of paper. He told her not to let him forget to take them to town with him as he intended having his lawyer write a deed to Iowa. He said, “I want to fix it for Iowa Harrell for the way she took care of me; that he would take care of it as long as he lived and then it would be hers.” They went off to town, however, without taking the numbers of the land, and neither thought of it until their return home. This is the substance of the four conversations which Mrs. Harrell testified to. Only three of these occurred in the presence of the defendant, Iowa, and in only two of them did he address his conversation to her directly. Ezekiel testified that he had a talk with Caleb Collins in the summer of 1903, wherein Collins told him he intended giving Iowa the Queen City farm, and that he “ ’lowed to do more than that for her.” — 291 — At the trial Mrs. Harrell produced, over the objections of the plaintiff, an unsigned typewritten letter, which she testified Caleb wrote on her typewriter the day he was taken down sick in his last illness. That paper is in this form: “Stiles, Iowa, Jnly 28th, 1905. “Mr. Carruthers, “Dear Sir:- i wnt to give away a pice of land, sssssssssssssssssssssssssssssssssssssssssssssssssssssss bbbbbbbbbbbb mmmm„„, .... ’ „„„)c (( | cxzvbbb mmmmmm b,b,b,b,b„„„„„.. hnnm,m,m,m,mkm,m,m,m,m,m, qwertyuiopqwertyuiopysss mmssssm ddgfgfgfddmbbb gh kl 8z zxcvbn ssssssssssssssss qwertyuiopqwertyuiopzxcvbnm,.ikjhgfdsa wefthynjhtg “Stiles, Iowa, Jnly 29th, 1905. “S. S. Carrnthers,' Bloomfield, Iowa. “Dear Sir: “I want to give away a piece of land, what consideration shonld I pnt on it, the valne of the land, or will one dollar or five dollars, be as good, I want it to be legal, and I want to know what will make it so, please let me hear from yon and oblige. “Respectfully yonrs, “Caleb Collins.’’’ This letter she says she kept in her safe to which Iowa carried the key. She said nothing about it to the administrator, although she endeavored to get them to give Iowa the land in question. Mrs. Harrell was a stenographer, had worked in a lawyer’s office, was acquainted with legal t-erms, and knew who Mr. Collins’s attorney was. It will be observed that the letter does not specify what land he desired to give away, or to whom he desired to give it. — 292 — W. A. Rinehart testified that he was at the Collins home and endeavored to buy this farm. Collins in the presence of Mrs. Harrell and the interpleader priced the land at $25 per acre, and said he had talked abont giving that particular piece of land to a young lady that they had there at the house, he called her Iowa or Babe. This was in October, 1902. Iowa was present when he said he thought he would give it to her, that is all he said. He said that he thought a great deal of her and was giving her an education and was greatly interested in her, and he told her to sit down and play on the organ and she did. I,do not remember that he said he had deeded the laud to her but he said he would give it to her. W. D: Masterson testified that Mr. Collins told him he had given Iowa a calf and now it was a cow and she had two calves, that he was going to deed her the farm or give her the farm, he did not say which, witness did not pay much attention to it. Witness asked Mr. Collins why he did not sell the Queen City fárm and he replied that land was raising in price and if he sold he would have to look around for more land. Ceorge Melvin, a justice of the peace of Lancaster, Missouri, testified that he knew the deceased, Caleb Collins, very well; that in the spring or winter before the trial, the deceased came to Lancaster and called at his office and said to him, “I want to make a deed, but I do not care to have anybody know my business or to make it public.” He said he wanted to make a deed to a girl that he had raised or a woman. I do not think he called her name. Witness was about to write the deed when Mr. Collins asked witness if he knew that he, Collins, was living in Iowa, he would probably want to make a deed to some land in Iowa, and Melvin asked him, “Where have you got- to have this deed recorded?” and he said, “Bloomfield, Davis county.” Thereupon Melvin told him that he had better get somebody else to make the deed; that a justice of the — 293 — peace in Missouri could not take the acknowledgment. And he asked what officer had the seal and witness told him a notary public or one of the clerks of the court, and then Collins left and that was all there was to it. Witness did not write the deed, he did uot say where the land was, hut said the deed would have to he recorded at Bloomfield, Iowa. James Collins, one of the defendants in the partition suit who signed the disclaimer in the answer, testified that he was a nephew of Caleb Collins, and was frequently at his house during the last six or seven years and he heard Caleb talk about the Queen City farm. Collins said to him, “Jim, I want to see Sam Carruthers, to see about making a deed, I told them I promised Iowa the Queen City farm, and I want to make a deed to it so that they cannot beat her out of it.” This conversation occurred in February, 1903. He spoke about building a house on this land, wanted to fix it up for Iowa. On cross-examination this witness stated that he also had a suit then pending in the district court of Davis county, Iowa, in .which he claimed that Caleb Collins had made an oral gift of a farm of one hundred and seventy-two acres to him, known as the Savannah farm. And that he expected on the trial of that case to have Mrs. Maggie Harrell and Iowa Harrell as witnesses for him. John W. Cooksey testified that Caleb Collins said to him in 1904, “I am going to fix her so she won’t have to work when I am gone.” That he was going to deed her the Queen City farm. Mrs. Stella Dooley testified that she was Zeke Dooley’s wife, and that she heard Caleb Collins say he was going to give Iowa this Queen City farm and fix up a house on it for her. “ Q. Did he say how he was going to give it to her? A. No, sir. Q. Did he say anything about deeding it to her? A. No, sir.” She also testified to the conversation in the yard on the day of Mrs. Collins’s funeral. She heard him say to Iowa — 294 — she was not going to leave him, and commenced crying. And he talked on and said if she would stay he would always see that she had a home and he would school her, that was about all. He did not say he had given her the farm hut said he was going to do it. Iowa was not present at this conversation. B. B. Burchett testified that he lived at Bloomfield, Iowa, and had been sheriff four years, knew Mr. Collins in his lifetime and was intimate with him; had a talk with him about the Queen City farm; he talked about this young lady, said she was the sweetest child he ever knew, she could not be any closer to him if he had been her father, he was proud of her; said she had a lady’s head on her shoulders, and he was going to school her and make a lady of her so that any body would be proud of her. When she was in Kansas he spoke of going out there to make his home with them. I was at his house and he spoke of a couple of land-buyers having come from Missouri to buy the Queen City farm, and said he thought it would make Iowa more money for him to sell that farm and invest it in Iowa lands, but he said, “Recently Missouri land is enhancing in value and I am not sure but that it will come up to ours here. ’ ’ He went to see Mr. Collins twice while he was sick. The first time he just dropped in and Mr. Collins said, “I knew Bern would run in here, I knew he would come to see me.” He was rather emotional and tears ran down from his eyes. He made me promise to come back. I went back and I took him some wine. I think I took a bottle of Old Quaker liquor. At the request of one of the Collinses I asked him if his business was in the condition in which he wished it to be. One of them asked me to do this, said I could do it better than anyone else, so I said to Mr. Collins, “Cale, we do not think you are going to die or anything worse is going to happen, but we cannot always tell what might occur and the boys wanted me to ask you if your business was in the condition in which you desired — 295 — it to be?” and be said, “No, it is not. I want to make a deed to Iowa to a piece of land, and I want to make a will.” He said be bad told Sam Carutbers wbat be wanted to bave bim make and be wanted to bave bim make a will tbe next time be came out. I tbink be said be bad written bim. I won’t be sure be bad written bim in regard to it or whether be told me be told bim about it. I told bim I am going right to Bloomfield and will send Carutbers right down if you say so, and be said, “I am too weak, sick and nervous to-day, if be was here I do not know as if I could sign my own name. I am awfully weak. But bold yourself in readiness, so'if I don’t get any better — Ira told mo I would be much better tomorrow — if I do not I will ’phone you to bave Carutbers come down.” Tbe witness told him be would deliver tbe message. The next time be heard from bim he was dead. It was Jim Collins who requested bim to see Caleb Collins in regard to fixing bis estate. On tbe part of plaintiffs, tbe evidence tended to show that in a suit for tbe partition of tbe lands of Caleb Collins in tbe district court of Davis county, Iowa, among his heirs at law, tbe witness James Collins bad pleaded that be was tbe owner of and entitled to a tract of tbe said lands, amounting to 172 acres, by reason of a sale of said tract to him by Caleb Collins for services rendered said Caleb Collins by said James Collins, and that said Caleb Collins bad not conveyed tbe same to bim and be prayed for a decree of specific performance thereof, which cause was then pending in said court. Plaintiffs also offered in evidence tbe record of a suit by Ezekiel Dooley v. Caleb Collins to quiet the title to certain lands as against a certain mortgage executed by Obediah Dooley to Caleb Collins and a decree accordingly. Hybarger, a witness for plaintiffs, testified that be was in tbe real estate business in Centerville, Iowa, and bad been since 1893; that in 1902, be accompanied — 296 — W. A. Burkhart and E. A. Duckworth to the residence of Caleb Collins. That he and Duckworth went into the house and witness inquired of Caleb Collins if the Queen City farm was for sale and his price. Collins said he hadn’t put it on the market; that if he was going to sell his price would be $30 or $35 an acre. Witness thought the price too high and told Collins he had better consider it, that maybe the money would pay him more than the farm. Defendant, Iowa, and her mother were present. Mrs. Harrell said- he had better sell* the farm had never brought more than enough to pay the taxes and repairs. Collins said he did not care to sell then, but she urged him and he said, “I didn’t know but that I would want to give it to Babe and you sometime for a home.” Mrs. Harrell said she did not want it if she had to live on it as a home. Burk-hart was not in the bouse during this visit. B W. Cooksey, being recalled, testified that he had filed a claim of $1,200 against estate of Caleb Collins, covering a period for 1891 to 1905, inclusive, for work and labor done, and the same was then pending. There was other evidence to the effect that after the death of Caleb Collins, Mrs. Harrell only claimed two cows and a calf and a mare as belonging to Iowa. Also evidence that Mrs. Harrell had stated to different witnesses that if Caleb had' not left a will she and Iowa would get nothing. Also that Mrs. Harrell had told DeG-rand he ought to buy the Queen City farm; that Mr. Collins was not able to look after it and could loan his money to better advantage. I. As already seen, this is a bill in equity on the part of Iowa Harrell to enforce the specific performance of a verbal agreement on the part of Caleb Collins in his lifetime to convey the 152 acres of land, specifically described in her interplea and answer, and lying in Schuyler county and known in the record as the Queen City farm, to said Iowa Harrell. The circuit — 297 — court denied the relief prayed for in said interplea and answer, and defendant Iowa Harrell has appealed to this court. Caleb Collins was nearly eighty years old at the time of his death in 1905. He had no children. His wife died in 1898. Mrs. Maggie Harrell was a sister of Caleb Collins’s wife. Mrs. Harrell had one child, Iowa Harrell, the defendant. Doctor Harrell, the father of Iowa, died in 1890. Prior to her marriage in 1878 to Doctor Harrell, Mrs. Maggie Harrell lived in the family of Caleb Collins, as a member thereof. After her husband’s death Mrs. Maggie Harrell and her child, Iowa, again became members of the family of Caleb Collins, and were living with him when his wife died. Caleb Collins had been and was a successful business man. He had become the owner of three or four farms in Davis county, Iowa, aggregating about five hundred acres, and two farms in Missouri, of which the Queen City farm in Schuyler county was one. He was a man of considerable education. Had taught school and been a merchant in his younger days. He seemed to have been a man of note and influence in his neighborhood. He maintained his mental vigor up to his death. He seemed to have been a generous man and was very fond of defendant, Iowa, who had lived with him from the time she was nine years old until she was about sixteen at the time of his death. During all the time, beginning with the death of Doctor Harrell, up to the death of Caleb Collins, except the few months Mrs. Harrell and Iowa lived at Leroy, Kansas, Caleb Collins furnished Mrs.. Harrell and Iowa a home, free of charge, clothed them and paid their medical bills, sent Iowa to school and gave Mrs. Harrell, for her pin money, one-half the eggs, chickens, etc. They seemed to have entertained a strong affection for him, and he became greatly attached to Iowa. He always expressed interest in her welfare and there can be little doubt that he not only purposed to make a provision for her out of his- property but repeatedly announced — 298 — bis intention to do so. With this preliminary statement of the relations existing between Caleb Collins and Iowa Harrell prior to August 24, 1898, the date of the funeral of the wife of Caleb Collins, we come to the averments of the interplea or equitable answer of defendant Iowa in this ease, to-wit: “That shortly after the dea.th of the said Caleb Collins’s wife, the said Caleb Collins contracted and agreed with this defendant that if this defendant would live with him, stay with him, and comfort him until his death, he would give her all of the Schuyler county land above described in consideration therefor;” that this defendant accepted said proposition and agreed to live with him, stay with him and comfort him until his death, and in pursuance of said agreement she did live and stay with him and comfort him until his death and fully performed her part of said contract, but that said Caleb Collins failed and neglected to keep his part of said contract prior to his death and failed to convey the same to her. The time when this .alleged specific arrangement was made is fixed in the testimony as the day. of the funeral of Mrs. Collins, and the promise made that day by Caleb Collins to Iowa is the one upon the faith of which Mrs. Harrell abandoned her expressed intention of taking, her things, leaving the house of Caleb Collins, and making her home with her brother, Ezekiel Dooley, and it was on this occasion that the testimony on the part of Iowa tends to establish her acceptance of Caleb Collins’s proposition, for it is then that she put her hand in his and said, “I am going to stay with Uncle, ” and went into the house with him and thereupon Mrs. Harrell abandoned her intention of making her home with her brother. Now, the testimony as to the promise of. Caleb Collins is variously stated as follows: “He, Caleb, said: ‘You are not going to leave me now in my bereavement and leave me here alone? No, Iowa, stay with me and I will school you and educate you and will give you all — 299 — your clothes. You live with me and I will see that you have plenty;’ and to this she replied, ‘I am going to stay with Uncle. ’ ” It is too plain for discussion that if this were all the testimony it utterly failed to sustain the averments of the answer as to an agreement to convey this specific real estate. There was no reference hy either party to the land which the defendant claims she was to have conveyed upon her staying with him, as long as he lived. Mrs. Ezekiel Dooley in her testimony gave this conversation in practically the same words. Sbe says that Caleb Collins said, “If she would stay he would always see that she had a home, he would school her, that is about all.” Ezekiel Dooley was present hut he did not testify to this contract alleged to have been made that day. It is significant that after Mrs. Harrell had been examined and cross-examined and re-examined until her testimony covered forty-five printed pages, she had never stated that Caleb Collins had mentioned this real estate. Finally, counsel for. defendant Iowa again reexamined her, and requested her to repeat again the conversation that took place up at the house immediately after the death of Mrs. Collins. Up to that time she had invariably stated the alleged agreement was made in the yard. She had been asked again and again to state the place, time and substance of each conversation she had or had heard in which Caleb Collins referred to this matter and had never mentioned a conversation in the house; and she stated that after we were in the house, “we were talking in the south room and he said he had made up his mind to give loiva the Queen City farm.” Counsel, “That is not what 1 want. What else did he say, if anything?” Ans. “If she stayed with him he would give her the Queen City farm.” Q. “How long did he say for her to stay?” “Ans. Until the last, until he died.” On her previous ■examinations, she had been pressed by counsel for — 300 — plaintiffs to state anything else that Caleb had said, and she had repeatedly testified that she had stated all that he had said. Obviously counsel for defendant was not satisfied with her testimony, as up to this time she had completely failed to sustain the averment as to this .real estate. She had testified to. an arrangement which all the evidence establishes had been fully complied with by Caleb Collins. This long belated testimony as to the Queen City farm was only forthcoming after the question of counsel had suggested a new place and a different time, and then the answer was that Caleb had said “he had made up his mind to give Iowa the Queen City farm,” and this also being unsatisfactory, counsel stated this was not what he wanted, as obviously it was not. Then for the first time, in response to a call for something more, she answered, “If she stayed with him he would give her the Queen City farm.” Then came the suggestive question: “How long did he say for her to stay with him?” and the answer, “As long as he lived.” Previous to this she had stated that after the talk in the yard, nothing more had been said about the matter for about six months. No other witness testified to this statement in the house. When it was made the mutual agreement in the yard had been consummated. To this last voluntary statement, which was that he had made up his mind to give Iowa the Queen City farm if she stayed with him until the last, or his death, there is no pretense that there was any assent or agreement on the part of Iowa. It was wholly ex parte and the mother does not state that thereupon she agreed that they would remain. The court was made to understand that the alleged contract in the yard had proved satisfactory and its performance begun when all parties adjourned from the yard to go to dinner and that the proposed removal to Ezekiel’s had been abandoned. In Kinney v. Murray, 170 Mo. l. c. 701, the principle governing courts of equity in this class of cases — 301 — was well stated to be that: “When, as in this ease, and in consonance with this doctrine, a conrt of equity is called npon to establish and enforce a contract of this character, in the teeth of the Statute of Wills, and of the Statute of Frauds and Perjuries, and to set aside the disposition of valuable property made in conformity with the requirements of those statutes, there is devolved upon the chancellor the gravest responsibility, perhaps, that ever attaches to his high office. And nothing short of the inherent justice of the claim, supported bv evidence that can be relied upon with the utmost confidence, proving the existence of the contract, its terms and conditions and a substantial and meritorious compliance therewith, with such certainty and definiteness as to leave no room for reasonable doubt, can ever justify the exercise of such an extraordinary prerogative.” In the same case it was elsewhere stated: “A court of equity in this State will specifically enforce an oral contract to make a will in a particular manner, where a valuable consideration has been received for the promise and a fraud would be perpetrated upon the promisee or beneficiary unless the contract be performed. But, the proof of such a contract must be so cogent, clear and forcible as to leave no reasonable doubt in the mind of the chancellor as to its terms and character; and where the consideration consists of acts to be performed, there must be like proof that the acts performed refer to and result from from that contract, and are such as would not have been done unless on account of that very agreement and with a direct view to its performance. ‘There must be no equivocation or uncertainty in the case. ’ This doctrine is established, and its application illustrated, in a long line of cases.” That case has since been followed and approved in Rosenwald v. Middlebrook, 188 Mo. 58, and Kirk v. Middlebrook, 201 Mo. l. c. 289, 290. — 302 — In Phillips v. Thompson, 1 Johns. Ch. l. c. 149, Chancellor Kent observes: “It is well settled that if a party pleads part performance to take a parol agreement out of the statute, he must show acts unequivocally referring to and resulting from that agreement, such as the party would not have done unless on account of that very agreement, and with a direct view to its performance; and the agreement set up must appear to he the same with the one partly performed. There must be no equivocation or uncertainty in the case. ' The ground of the interference of the court is not simply that there is proof of the existence of a parol agreement, but that there is fraud in resisting the completion of an agreement partly performed.’’ And the chancellor concludes by observing: “This case, like many others, shows the utility of the Statute of Frauds, and the danger of relaxing the sanction of its provisions. I agree with those wise and learned judges who have declared that the courts ought to make a stand against any further encroachment upon the statute, and not to go one step beyond the rules and precedents already established.” Turning now to the first essential exacted by all the authorities in this class of cases, to-wit, that the contract itself must be definite and specific for the conveyance or devising of the specific land in suit and that the proof of the contract must be cogent, clear and convincing, it must be evident that the statement of Caleb Collins that if the defendant Iowa would stay with him he would school her and educate her and give her clothing and see that she had plenty, and her assent to that proposition, fell far short of the alleged agreement to convey her the Queen City farm. As already remarked, in the testimony of those who heard these statements by Caleb Collins no mention whatever is made of any statement by him that if she would remain with him as long as he lived he would convey to her or give to her the said farm. As to the unsupported — 303 — evidence of Mrs. Harrell tliat after this conversation and after her assent to the arrangements made in the yard, they then went into thehonse and during the afternoon while they were talking in the south room Caleb Collins said he had made up his mind to give Iowa the Queen City farm if she stayed with him until he died, it must he borne in mind that this was the testimony of the mother who had been examined, cross-examined and re-examined until her evidence in the record covered over forty-five printed pages, and never until after all this long and searching examination and re-' examination did she testify to any such a contract or statement. She had repeatedly said that she had detailed everything that had been stated by Mr. Collins in regard to providing for her daughter. Now the evidence tends to show that Mrs. Harrell was an intelligent witness and certainly a deeply interested one, one who was fully alive to the importance of testifying to facts which tended to establish the alleged contract for the conveyance of this piece of land. It must have impressed the trial judge as being, at least, remarkable that she had forgotten to mention this highly important statement during all of her long and tedious examination. While this court has often said that in an appeal in an equity ease it would not abdicate its right to examine and weigh the testimony, yet it will defer to a large extent to the judgment of the chancellor who hears and tries the cause on the circuit, and who has an exceptional advantage in weighing the testimony of witnesses, which this court cannot in the nature of things have. So in this case, the circuit court was present and it must have appeared significant to it that this statement alleged to have been made in the house on the day of the funeral of Mrs. Collins had not been testified to by Mrs. Harrell during all of her previous examinations, when the great purpose of her testimony was to establish the existence or non-existence of this particular contract. But when the testimony itself is — 304 — closely scanned it will be noted that when left to berself without suggestion of counsel, her statement was that Mr. Collins simply said in a general conversation that he had made up his mind to give Iowa the Queen City farm. Certainly this was not the language of an irrevocable contract to specifically convey or will to this young girl that, particular tract of land. In the language of the courts, it was no more than a declaration of an intention which he might abandon, or change altogether, or substitute another piece of land in lieu of that tract, but taking altogether the interest of the witness, the circumstances under which this testimony was elicited, the fact that the witness was before the court and he had an opportunity to observe her manner and her interest in the case, this court should hesitate a long time in reaching a different conclusion from that reached by the circuit court in finding that the alleged contract was not made and that the evidence fell far short of that clear and satisfying testimony which courts of equity uniformly require in cases of this character. Mrs. Stella Dooley in her evidence as to what occurred on the day of Mrs. Collins’s funeral did not corroborate Mrs. Harrell as to the statement of Caleb Collins that he had made up his mind to give Iowa the Queen City farm. All that she heard him say on that day was that if she would stay with him he would always see that she had a home and he would school her and clothe her, and all the testimony shows that he fully complied with his agreement in that respect. Ezekiel Dooley who was there that day did not hear either of the statements attributed by Mrs. Harrell to Caleb Collins in regard to this farm. Now Mrs. Harrell states in her testimony that the only persons present at the conversation in the yard with her were her brother, Mr. Dooley, and his wife, Stella Dooley, and Mr. Collins, the witness, and her little girl. As already said, Ezekiel Collins heard neither of the statements which Mrs.'Harrell says Caleb Collins made on — 305 — that day. So that as far as the alleged contract made on the day of the funeral of Mrs. Collins in regard to the land in suit is concerned, the cause stands upon the uncorroborated evidence of Mrs. Harrell, unless the subsequent declarations of Caleb Collins can be said to have sustained her evidence as to the contract. Now as to these, many of them are of the most unsatisfactory character, declarations made in the most casual conversations. Thus Masterson testified that on one occasion, perhaps in 1903, Caleb Collins stayed all night with him and in talking to his wife Caleb said that he had a girl living with him and he had given her a calf and she had made a cow, etc., but that was not all he was going to do for her; that he was either going to deed her the farm or give her a farm, he would not say which. But in the same conversation witness asked why he did not sell the Queen City farm and Mr. Collins said land was rising in price and if he sold it he would have to purchase other land. When he said he thought of deeding the farm he did not say what farm nor when he intended to deed it. Rinehart’s testimony was to the effect that when he offered to purchase this farm Mr. Collins said that he had thought of deeding it to the girl. Ezekiel Dooley testified that he was at Caleb Collins’s in 1904 with his daughter. Iowa, the defendant, wanted to go home with him to go to school in St. Louis. The old gentleman objected and said that she ought to go to Stiles that winter, and said, “You know, Iowa, I told you I would give you the Queen City farm if you would stay with me until the last. ’ ’ Mrs. Harrell testified that she heard this statement. James Collins also testified that Collins told him that he had promised Iowa the Queen City farm and wanted to make a deed to it. Cooksey testified that Mr. Collins said to him in 1904, when Iowa was absent in St. Louis, that he was going to deed her the Queen City farm, that that was about all he ever said to him about it. And Mrs. — 306 — Stella Dooley also stated that he said he was going to give her the Queen City farm, and was going to fix it np. Burchett simply testified that when some parties wanted to buy this farm Mr. Collins said he thought it would make Iowa more money for him to sell the farm and invest it in Iowa land and on another occasion he said he wanted to make a deed to Iowa to a piece of land. But defendant also introduced another witness, Mr. Melvin, who testified that he was the justice of the peace in Lancaster, Missouri, and that Mr. Caleb Collins came into his office and desired to make a deed to a piece of land in Iowa, and the justice told him that he was not the proper officer to take the acknowledgment and he left. Mr. Collins did not call the grantee’s name, hut said it was a girl that he had raised. Now, of this character of testimony this court has often spoken. In Kinney v. Murray, 170 Mo. l. c. 706, this court said: “ ‘Evidence of such declarations, it is true, is admissible, hut it never amounts to direct proof of the facts claimed to have been admitted by those declarations; and it is sometimes doubted whether it ought to be received at all when introduced for the purpose of divesting a title created by deed.’ [Johnson v. Quarles, 46 Mo. l. c. 427.] ‘ This kind of evidence has always been received with great care, and when not supported by other evidence i s generally entitled to but little weight.’ [Cornet v. Bertelsmann, 61 Mo. l. c. 127.] ‘The evidence consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistakes, the party himself either being misinformed or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens also that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. . . . "When we reflect upon the inaccuracy of many witnesses in — 307 — their original comprehension of a conversation; their' extreme liability to mingle subsequent facts and occurrences with the original transaction, and the impossibility of recollecting the precise terms used by the party, or of translating them by exact equivalents, we must conclude there is no substantial reliance upon this class of-testimony.’ [1 Greenleaf, sec. 200; Johnson v. Quarles, supra; Ringo v. Richardson, 53 Mo. 385; Cornet v. Bertelsmann, supra; Berry v. Hartzell, 91 Mo. l. c. 137; Fanning v. Doan, 139 Mo. 392.] ‘ The intrinsic weakness of this class of evidence is further enhanced in any given case by the length of time that has intervened since the declarations were made, and the ease with which it can be manufactured, and the temptation to do so, when all those by whom it could be contradicted are in their graves.’ [Fanning v. Doan, 139 Mo. l. c. 412.] Such evidence can and ought to have very little weight, when it is sought by it to asperse the memory, and set aside the last will and testaments of worthy and just persons, executed in contemplation of death, and in the manner required by law, disposing of their own property according to the dictates of their own conscience.” When given full consideration it will be seen they were at the most but the expressions of affection by Mr. Collins for the defendant Iowa and of an intention on his part to make provision for her, but it will be observed that to one witness he stated that he was going to deed her a piece of land in Iowa; to another witness, he said he had thought of giving her this Queen City farm, but he did not know but what it would be better to sell it and invest the money for her in other property. But as already said of the conversation in the house, on the day of the funeral, none of these expressions measure up to the statement that he had made an irrevocable contract with the defendant Iowa to convey her this specific land. We can add nothing to what was said by this court in Kinney v. Murray, supra, as to the unsat — 308 — isfactory character of such evidence to make out a case of specific performance. Bnt more than that, the chancellor had all these witnesses before him, and he heard the evidence, showing the motives which prompted James Collins, who was at that time prosecuting a similar action for one hundred and seventy-two acres of the land left by his uncle Caleb Collins, and his admission that he expected to rely upon Mrs. Harrell and the defendant Iowa to establish his right to the specific performance of a contract by Caleb Collins to convey him that land. Cooksey also was shown to have an action at that time pending against the estate of Caleb Collins for twelve hundred dollars for work and labor done. And the court must have been strongly impressed with the interest which these parties had in testifying against the heirs of this estate. The evidence consisting, as it did, of the testimony of the mother and'uncle and aunt of the defendant Iowa, on the one hand, and the testimony of parties who were seeking to prove up like verbal claims to the estate of this old gentleman against whom no such claims had been preferred in his lifetime when he could defend against them. In our opinion this testimony was peculiarly a matter for the consideration of the court who saw these witnesses and heard them testify and who could weigh that testimony much better than we can. Scanning this evidence as closely as we can, we have been forced even at this distance to l’each the same conclusion as he did, that it failed of that satisfactory character which a court of equity requires. But there is still a further consideration, and that is this: in many of the adjudicated cases stress has been laid upon the fact that the party who was seeking this specific performance had severed the natural ties of affection and left his or her home and gone to the family of the decedent, and had fully performed the contract of service for which the deed or will was to be made, but no such state of facts appears in this case. — 309 — The defendant Iowa and her mother had long been inmates of the home of Caleb Collins, and had received support and maintenance at his hands, without any demand for service and without any pretence of any contract. The defendant Iowa had not been called upon to sever her relations with her mother in any degree. She remained in the same home of this kind old gentleman and benefactor just as she had been for the most of her life and she had her mother’s care and protection and affection, and the same benefaction had been extended to the mother as to the daughter. According to the alleged contract she was simply to stay in and not to go to the home of Caleb Collins, and was not called upon to make any sacrifice whatever, but simply to continue to receive the same protection and support and care that he had already generously given to her, and in this respect the facts of this case differentiate it from that character of cases which appear in our reports. When we consider the further essential that the performance must be unequivocal and must in its own nature be referable alone to the very contract sought to be performed, because it is only by performance (whereby the party to be charged is benefited) that the conscience of the promisor and those claiming under him, is bound, it is hard to conceive that Mrs. Harrell and her daughter, considering their financial condition, would have refused to continue making their home with Mr. Collins unless he had stipulated to convey them a farm, in addition to giving them a home which . he had for years furnished them from the motives of kindness, generosity and relationship. On his part, left alone, without, wife or children, naturally he desired their society and was willing to continue to give them a home and protection and act the part of a father to Iowa without the thought that he could only procure their assent to Jiis bounty by making an irrevocable contract to convey them a large portion of his estate. Surely if their pres — 310 — ence and society would sweeten Ms declining years, a like feeling of gratitude on tlieir part after all Ms benefactions to them wonld lead them, not without some 'urgent reason, to abandon him and that home, when the invitation to remain was extended to them. Indeed it would seem that such a step had never occurred to him, and when the announcement came to him in the hour of his distress, he naturally urged them to remain, and all that occurred in the yard was entirely consistent with human experience and was in itself, under the circumstances, all that could have been expected. Why Mrs. Harrell should have announced her intention of leaving him on that day of all others, without having consulted him about it, is inexplicable. Surely it was not because of any thought of impropriety on her part in living there, when his age and the relationship that had existed so long, are considered, for if it was improper to remain without the contract, it was equally immodest and improper to remain with it. We think the circuit court might well have refused to believe, as it did, that Iowa Harrell and her mother continued in the home of Caleb Collins for the sole reason that he had agreed to convey Iowa this farm and that their acceptance of Mr. Collins’s bounty was referable alone to such a contract. We prefer to believe that they felt that they owed him a debt of gratitude to render him some return for all his unselfish kindness to them by remaining with him in his loneliness and at the same time securing to themselves a home, which they so much needed. That Caleb Collins was very fond of Iowa Harrell we have no doubt whatever. She had lived in his home from the time she was a babe. He had no children of his own. He had been generous to her and her another all her life. Neither do we question that he purposed to make some provision for her out of his property, but we think the whole evidence indicates that he had not fully determined what that provision should be. At times he thought of giving her this farm and — 311 — then he thought of giving her some of his Iowa land, but that he ever made sneh a contract to give her this specified farm, we think the evidence fails to establish. We think that whatever he thought of doing for her, he considered it would be a voluntary gift, and not because he was bound by an irrevocable contract to give her this specific property. In our opinion the circuit court correctly held that the defendant, Iowa Harrell, had not established her right to. a decree of specific-performance of a contract to convey or devise her the Queen City farm, and its judgment is therefore affirmed. Valliant, C. J., Burgess, Fox, Lamm and Graves, JJ., concur; Woodson, J., dissents and files dissenting opinion.