Dill v. Harbeck

Pratt, J.

We are not able to agree with appellants that the evidence in support of plaintiff’s case is vague or unsatisfactory; on the contrary, it is so-full and convincing that, in our opinion, a verdict might properly have been, ordered for plaintiff. The testatrix, a lady of wealth, estranged from her family for years, suffering from a painful disease that must speedily prove - fatal, might well contract to give to her favorite niece a dwelling-house, on condition that a home should be there created for her -benefit and during her lifetime. It also appears that in her conversations the testatrix said “Elvira. *833 [meaning plaintiff] is the only niece I have that needs a house, and I am going to give her one. ” It is not necessary to recapitulate the evidence, which is abundant, and, we think, uncontradicted; for the conversation of plaintiff, as testified to by defendants, is not necessarily inconsistent with the plaintiff’s claim. The only subject of that conversation was the small balance unpaid of the house expenses, and it would be to give an undue effect to the language to apply it to the matter now in controversy. Disturbed in mind by the distressing disease, which would lead her to magnify the ordinary irritations of life, it is not surprising that causes of disagreement should ultimately arise between the testatrix and her niece; and when her sons returned to her a few weeks before her death, after an estrangement of 18 years, during which they had no intercourse, nothing could be more natural than that in the joy of that reconciliation her contract with her niece should be forgotten to the advantage of the sons. But the plaintiff’s rights did not depend upon the continuance of the aunt’s favorable disposition. The contract had been fulfilled by the niece, and the estate of testatrix must answer according to the conditions of the contract. The case is not within the statute of frauds. The admission of the evidence of the increased expense of sustaining plaintiff’s household in consequence of the contract with testatrix was probably competent. If not, it was harmless. Without that evidence the testimony would have warranted an instruction to the jury to find a verdict for plaintiff. Judgment and order-denying new trial affirmed, with costs.