Willy v. Marion Powers & Omaha National Bank

343 N.W.2d 758, 216 Neb. 400, 1984 Neb. LEXIS 928
CourtNebraska Supreme Court
DecidedFebruary 3, 1984
DocketNo. 83-080
StatusPublished

This text of 343 N.W.2d 758 (Willy v. Marion Powers & Omaha National Bank) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willy v. Marion Powers & Omaha National Bank, 343 N.W.2d 758, 216 Neb. 400, 1984 Neb. LEXIS 928 (Neb. 1984).

Opinion

Boslaugh, J.

This action was commenced by the filing of a claim in proceedings to administer the estate of Laura M. Nicholson, deceased. The claimant, Blanche J. Willy, alleged that she had furnished private duty nursing care to the decedent from April 1973 until her death in September 1978, pursuant to an agreement with the decedent that she would leave her entire estate to the claimant.

The claim was disallowed by the personal representatives of the deceased. A petition for allowance of the claim was filed, and, after hearing, the county court found there had been no proof of an oral contract or performance of such a contract. Upon appeal to the district court the motion of the personal representative The Omaha National Bank for a summary judgment was sustained.

In In re Estate of Nicholson, 211 Neb. 805, 320 N.W.2d 739 (1982), we reversed the summary judgment in favor of the defendants and remanded the cause to the district court for trial. The issues to be determined were whether an oral agreement to make a will existed, and, if so, whether there was [402]*402part performance such that the contract could be deemed to have been “executed” before January 1, 1977, within the purview of Neb. Rev. Stat. § 30-2351 (Reissue 1979), and such that a court of equity could compel specific performance.

Upon remand the trial court found that the evidence did not establish an oral agreement as alleged by the claimant and that the claimant had been fully paid for her services to the deceased. The claimant has again appealed to this court.

The record shows that beginning sometime in 1972, the claimant was employed by Hugo Nicholson, the late husband of the decedent, to provide private nursing care. Although not a registered nurse or a licensed practical nurse, the claimant provided geriatric nursing services on a private basis. The claimant cared for Hugo Nicholson at a salary rate of $3.50 per hour until his death in April 1973.

The claimant testified that sometime prior to Hugo’s death he requested a commitment from the claimant that she would care for his wife, Laura, after his death. The claimant agreed to do so, and beginning shortly after Hugo’s death she began to provide care and companionship to the deceased. In the beginning Laura was not in need of nursing care, but the claimant drove her to the doctor, to the hairdresser, to the grocery store, and to church. The claimant accompanied Laura on trips, and testified that she often took Laura to the claimant’s home and cooked for Laura. The claimant testified that she kept herself available for Laura Nicholson, who often called her and requested services and companionship.

Although the claimant had been paid weekly by Hugo, the claimant testified that Laura told her after his death, “Blanche, I don’t want to pay you; I’ll take care of you when I die.” Laura told her several times, “You’ll be surprised, Blanche. I’m leaving you everything I have, but I expect you to take care of me.” The claimant testified that she was [403]*403not paid for her services nor did she ever submit a bill prior to July 1978. In 1978 Laura Nicholson became ill and required full-time nursing care. The claimant testified that at that time Laura requested her to submit bills because the claimant would no longer be able to work part-time and Laura knew she needed the money. The claimant submitted statements for her services from April 1978 until Laura’s death in September 1978, and she was paid for these services.

The will of Laura Nicholson, dated May 19, 1978, which was admitted to probate, provides in pertinent part: “EIGHTH. I give the sum of Five Thousand Dollars ($5,000.00), my davenport, large chair and foot stool, my secretary, my twin beds, my bedroom chest and night stand to my friend Blanche J. Willy presently of 350 North 41st Avenue, Omaha, Nebraska in appreciation of all of the kind and helpful things she has done for me.” The claimant accepted the tangible property but has not accepted the $5,000 bequest.

Catherine Murphy, a registered nurse who sometimes substituted for the claimant in caring for Laura Nicholson, testified that she was not paid by Nicholson but was paid by the claimant. She testified that Laura Nicholson told her that Laura planned to “leave [Blanche] everything I have.”

The claimant has assigned as errors the finding that an oral agreement did not exist and the failure of the court to find that there had been sufficient part performance of the contract prior to January 1, 1977. The personal representatives cross-appeal, assigning as error the failure of the court to determine that the contract was not executed prior to January 1, 1977, and thus that the requirements of § 30-2351 must be met.

We try the issues de novo and reach an independent conclusion without being influenced by the findings of the trial court, except to give weight to the fact that the trial court saw the witnesses and [404]*404observed their demeanor. Chicago Lumber Co. v. Horner, 210 Neb. 833, 317 N.W.2d 87 (1982); Neb. Rev. Stat. § 25-1925 (Reissue 1979).

Section 30-2351 sets forth the standard of proof in actions based upon a contract to make a will. The statute provides: “A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after January 1, 1977, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.”

Since it is undisputed that no writing exists, a contract cannot be established pursuant to § 30-2351. The issue is whether an oral agreement existed and, if so, whether it was executed prior to January 1, 1977.

Where one is claiming the estate of a deceased person under an alleged oral contract, the evidence of the agreement and its terms must be clear, satisfactory, and unequivocal. In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817 (1982); Guynan v. Guynan, 208 Neb. 775, 305 N.W.2d 882 (1981); Kimmel v. Roberts, 179 Neb. 8, 136 N.W.2d 208 (1965).

In the present case the only evidence of an oral agreement was the testimony of the claimant and Catherine Murphy concerning statements made to them by the deceased. Evidence of declarations of a deceased person concerning a parol contract does not amount to direct proof of the facts claimed to have been admitted by those declarations. Such evidence, when not supported by other evidence, is generally entitled to but little weight. In re Estate of Layton, supra; O’Neal v. First Trust Co., 160 Neb. 469, 70 N.W.2d 466 (1955).

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Related

Eagan v. Hall
68 N.W.2d 147 (Nebraska Supreme Court, 1955)
CHICAGO LUMBER CO. OF OMAHA v. Horner
317 N.W.2d 87 (Nebraska Supreme Court, 1982)
In Re Estate of Nicholson
320 N.W.2d 739 (Nebraska Supreme Court, 1982)
In Re Estate of Layton
323 N.W.2d 817 (Nebraska Supreme Court, 1982)
O'Neal v. First Trust Company of York
70 N.W.2d 466 (Nebraska Supreme Court, 1955)
Rudolph v. Hartung
277 N.W.2d 60 (Nebraska Supreme Court, 1979)
Kimmel v. Roberts
136 N.W.2d 208 (Nebraska Supreme Court, 1965)
Guynan v. Guynan
305 N.W.2d 882 (Nebraska Supreme Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
343 N.W.2d 758, 216 Neb. 400, 1984 Neb. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willy-v-marion-powers-omaha-national-bank-neb-1984.