This is an action labeled an action to determine adverse claims. The complaint alleges the employment of plaintiff by deceased and an agreement to transfer, by will, her property to him if he would continue in her employ and care for her and her property; that in reliance upon this oral agreement he continued to live with the deceased and cared for her and her property without compensation other than his board; that while not so engaged in caring for her he earned large sums of money working for others which he used in caring for her excepting only such amount as was necessary for his personal needs; that pursuant to such oral agreement the deceased made, on Sept. 16th, 1921, a written agreement (set forth in the majority opinion) to convey to him her property and, also, her last will (set forth in the majority opinion) in conformity thereto; that by reason thereof plaintiff acquired a contractual and vested interest in her property which could not be divested by a subsequent will; that on Sept. 23rd, 1921, deceased made a subsequent will (described in the majority opinion); that such last will was admitted to probate in the county court and defendant W.S. Casselman appointed as executor thereof; that such county court, unless restrained, would proceed to execute such will which is null and void. The prayer of this complaint requests that adverse claims of defendants be set up; that the last will be adjudged null and void; that the county court be restrained from interfering with plaintiff's right, title, use and occupation of the property.
Three defendants, named as beneficiaries in the last will, answered. Among other things they allege that the first will was procured by misrepresentation, fraud, duress and without decedent's knowledge of its contents; that the last will was filed in the county court and was duly admitted to probate on Feb. 16th, 1922; that plaintiff appeared in the proceedings for the probate thereof and proposed for probate the will of Sept. 16th, 1921, as decedent's last will; that after a full hearing the county court refused to admit to probate the first will but admitted to probate the last will; that more than 30 days have *Page 553 elapsed since such allowance of probate and plaintiff has not appealed therefrom and is now estopped to contest the validity of the probate proceedings had.
The heirs at law of the deceased, consisting of 4 children, 13 grandchildren, answered and alleged that the agreement between plaintiff and deceased was without consideration and was never delivered; that at the time of its execution deceased was mentally incapacitated; that both of the wills made are null and void; that if either of such wills are valid defendants were unintentionally omitted therefrom; that the estate is in course of probate in the county court; that no appeal has been taken from such court upon the matters alleged in the complaint but that an appeal has been taken from the order admitting the last will to probate which appeal, however, does not vest jurisdiction in this court concerning the matters embraced within the complaint.
This action was instituted in June, 1922. Trial was had on Nov. 29th, 1922. The transcript is short, consisting of less than 60 pages. Plaintiff testified to the following effect; — He is 40 years of age. For some 7 years, from 1915 to 1922, he lived with deceased at Braddock, N.D. He worked for her. She had farms and some personal property. She would rent some land now and then and he would look after the crop and see that she got her share. He came to North Dakota in 1910. He worked around on farms. He had once been a lumber-jack. He also ran steam engines. In the spring of 1915 he was running an engine for defendant W.S. Casselman and one Smith. In 1916 he stayed around deceased doing garden work and things like that excepting that he did some plowing for 15 or 20 days for one Stack. In 1917 he helped Smith put in some crop then he went up in Canada for two months. In 1918 he did some more work for Smith and fixed cars some in Braddock. Most of the time he loafed and stayed with decedent. In 1919 he took care of the decedent and did some farming for her but there was no crop on account of grasshoppers. The question was then asked of plaintiff if he did not borrow from deceased $350.00 that year. The answer was excluded upon objection made. In 1920 he worked one week running a steam engine for one Lavine and worked for the deceased doing farm work. Plaintiff lived with Mrs. Cole in a house in Braddock in the front part of which there was a cream station. (The size or condition of this house does *Page 554 not otherwise appear.) In 1920, apparently during the latter part of the year, deceased suffered a stroke of paralysis. Pursuant to plaintiff's testimony, she required much attention after she had received this stroke. For four or five months he had to help her out of bed. He had to help dress her and cook for her. About Sept. 16th, 1921, the deceased became quite ill and feeble. Plaintiff saw one De France. He drew up for them the agreement between plaintiff and deceased. He also drew up the will. (The first will signed by deceased.) De France then went over to deceased's place. She said she did not care to sign then for the reason that she had other friends she wished to remember. One Savage also went along at the time, at the request of plaintiff. He read some of the contract to her and she said she did not want to sign it now. She made the remark that she had given an automobile to plaintiff. Plaintiff remarked that it was worn out and she replied that plaintiff wore it out. She then made a further remark that plaintiff would be paid for what he had done for her. She also remarked that there were some other persons to whom she wanted to make some presents. So the contract and the will were not signed at that time. On the same day deceased left Braddock on the train, for Bismarck. Plaintiff was with her. He had with him the contract and the will. On the train plaintiff made the request to Attorney Atkins, who happened to be on the train, that deceased wanted to see him. The attorney then conversed with her in the presence of plaintiff. Deceased stated she wanted to execute some papers. The attorney read and explained the contract to her. Another witness was procured on the train. The contract and the will were then signed. The attorney kept the will and handed the contract to plaintiff. At Bismarck plaintiff took deceased to the St. Alexius hospital. He said to the Sisters at the hospital that he wanted a place for her as she was feeble and needed a little care while he cut hay on the tree claim. He went home the next day. He cut hay on a tree claim, located in Burleigh County. He cut probably six or seven loads of hay on this claim and sold it for $9.00 and $10.00 per ton. One-half belonged to deceased, the other half to one Hyness. With the money he received for her share he bought something to eat and feed for the horses. He gave none of it to deceased nor did he pay anything to the hospital for her bill there. At the hospital he saw her twice. Apparently deceased was *Page 555 at the hospital for about a week. Then she was over at defendant Casselman's and he saw her five or six times as he was going to town nearly every day with a load of hay and would stop there and see her. Also, with defendant's money he bought some gasolene, attended to the horses and drove the car back and forth. He was about a week putting up this hay and his services were worth about $3.00 per day. From the time the contract was signed until decedent died plaintiff, pursuant to his testimony, was working for her. At Braddock there were 22 chickens and 6 horses. He kept the horses in the yard at night and on the range during the day. He had another fellow looking after them, who owed him for some work that plaintiff had done. This was all the personal property she had there which he was looking after. Otherwise, plaintiff testified that he had no property when he came to deceased and has none now. Otherwise, it appears in the record that at the time the agreement was signed the deceased was 83 years of age. The exact date of her death does not appear in the record but it does appear that one will was offered for probate on or about Dec. 1st, 1921.
The trial court found that for some six years prior to the death of deceased plaintiff used his money in maintaining the household of himself and deceased and all money earned was turned in and became part of the general household fund; that after deceased was removed from the hospital in Bismarck she was taken to the home of defendant Casselman where, later, she died; that from the time of the execution of the contract as well as prior thereto and continuously, until prevented by the executor, plaintiff complied with his part of the contract, cared for the deceased and cared for her property. As conclusions the court held to be valid the contract made by the plaintiff and deceased; that the will of Sept. 16th, 1921, was in accordance with and in furtherance of performing and providing for performance on the part of deceased, pursuant to the terms, conditions and obligations of the contract; that when the last will was made, deceased was without capacity in any way to execute the contract made with plaintiff and that the will executed on Sept. 23rd was null and void and without legal effect; further, that the will of Sept. 16th was decreed to be the last will and testament of deceased and should be admitted to probate according to the terms of the contract between plaintiff and deceased; *Page 556 that defendants have no claim or interest in the property of deceased and that all proceedings had in the district court in connection with the probating of the will of Sept. 23rd, 1921, and for the appointment of executor therein were null and void; that such executor was decreed to be a trustee. Pursuant to such findings and conclusions, judgment was entered from which this appeal has been prosecuted by appeals of the heirs at law and of the beneficiaries named in the last will.
The record has been set forth somewhat fully and at length in order that same comprehension may be had of the multitude of errors involved in this nondescript proceeding, which are perpetuated by the judgment of the trial court and its affirmance by this court. The action is in no proper sense an action to determine adverse claims. Plaintiff, in his brief, recognizes this fact by asserting, in order to avoid appellants' contentions, that the action is in the nature of specific performance to compel performance of the contract and to prevent personal representatives of deceased from escaping their just and equitable duties under the contract. (See Resp. Brief. pp. 9 23.) Such assertions, now made as admissions, are a considerable departure from the theory of the trial court as expressed in its findings, conclusions, and judgment.
The effect of the majority opinion, in affirming the judgment of the trial court, is to nullify the probate of the last will, already allowed by the county court, determined its action had in that regard null and void, admit to probate the first will as the last will of deceased and absolutely fix plaintiff's rights thereunder, regardless of the original jurisdiction of the county court in such matter and of the jurisdiction of the district court in another appeal pending concerning the allowance to probate of such last will. Again, the effect of the majority opinion (although the language used does not equal the effect) is to determine that the first will made cannot be revoked and that no testamentary capacity existed to make any subsequent wills.
The authorities, however, are practically in harmony to the effect that an agreement or contract to will or set aside property of a person, subsequently deceased, does not, ipso facto, invalidate a will made in derogation thereof. In other words, the general theory or principle upon which the courts proceed is to construe the agreement, binding *Page 557 upon the property of the testator to the extent of fastening a trust thereupon in favor of the promisee, through specific performance if equitable so to do. 25 R.C.L. 306; 40 Cyc. 1068; 1 Schouler, Wills, 6th ed. § 711, p. 812; Thomp. Wills, § 33, pp. 37 and 39; note in Ann. Cas. 1914A, p. 399. This theory or principle has been expressly recognized by this court in Torgerson v. Hauge, 34 N.D. 646, 655, 3 A.L.R. 164, 159 N.W. 6. In fact, plaintiff, in his brief, has expressly conceded such principle as applicable. (See Pltff. Brief p. 15.) Hence, the fact of the contract having been made cannot be used to defeat the probate of the last will, as a will. 20 Cyc. 1071.
In the case at bar, the agreement covers certain real property and five horses, one Ford car, one wagon and one disc. The will covers such certain real estate and all personal property situated in Emmons County and, besides, five certain notes made by different parties. Manifestly, in any event, the first will has no validity in view of the subsequent will except as the contract vitalizes the subject matter. The will manifestly covers more property than the contract. In other words, pursuant to the broad scope of the action and the findings and judgment of the trial court as now adopted by the majority opinion, if the deceased had inherited, while in the hospital, a million dollars, that million dollars should pass to the plaintiff although it was neither involved nor considered in the agreement made. It ought to be evident that this action is founded upon the contract to fasten a trust upon the subject matter through specific performance. It is not an action to probate a will. Jurisdiction for that purpose rests originally in another court. A county court already has exercised jurisdiction in that respect and for probate purposes has decreed the second will made by deceased to be her last will and testament and has allowed the same, as such, to probate. Plaintiff accordingly may not now question the probate of such last will or attack it collaterally unless in equity he possess an independent ground for the creation of a trust that will impound the property involved in the probate of such last will. Any trust imposed should not cover, in any event, any more property than that which is included in such contract; the probate proceedings of the county court should be upheld and the allowance of the last will sustained excepting so far as a lien may be imposed for specific performance required pursuant to the terms of the contract made between *Page 558 plaintiff and deceased. In my opinion the error of the trial court is manifest.
Concerning the sufficiency of the evidence to warrant specific performance of the contract, I am of the opinion that the evidence is so indefinite and uncertain and so brief in general that equity, under the circumstances, should not compel specific performance of the contract until it is clearly made to appear that plaintiff in good faith performed services for the deceased which in equity should require the recompense of the transfer to him of all the property covered in the contract.
As far as this record is concerned there is no specific showing in the evidence that he ever spent one single dollar of his own money in behalf of her. Prior to the time of the execution of this agreement there is some evidence, stated by way of generality, that he did some work and contributed some money to the common household, but there is equally, other evidence that points in the general direction that plaintiff at all times was the beneficiary of the deceased, both in money, in property, and in having for him a home provided. After the contract was executed there is not a single item in the evidence shown of performance of service by plaintiff for the deceased excepting the cutting of some hay on a tree claim for all of which plaintiff was well paid by appropriating the proceeds of money derived therefrom practically to his own use. The record, in its present shape, is wholly devoid of such facts and circumstances which equity ought to regard as sufficient to compel compensation to be made for services rendered by one in good faith to another by turning over the entire accumulations of one's property to that person. It is well settled that in such an action to specifically enforce a contract and to impose a trust, a valuable consideration, and payment or performance thereof must be shown. Note in Ann. Cas. 1914A, p. 407; 1 Schouler, Wills, § 711, p. 813. The observation made by the majority opinion to the effect that deceased, through her disposition of the property pursuant to the contract, did not deprive the natural objects of her bounty, finds little justification in the record, for the record is singularly free in disclosing any estrangement existing between deceased and her numerous kin or that the bounty conferred under the last will upon the beneficiaries was in any manner forced or other than deservedly gratuitous. Under the same general line of observation the inference might as well be made *Page 559 that plaintiff, as a knight errant, without horse or baggage, is seeking now to get for himself gratuitously the home and property, that gave to him repose, sustenance and shelter. In my opinion the judgment should be reversed and a new trial had.