(dissenting) — I. I cannot concur in the foregoing opinion of the majority of the court. I am clear in my conviction that the judgment of the district court ought to be affirmed. The evidence, in my opinion, clearly establishes facts authorizing the legal inference of an agreement between defendant’s intestate and plaintiffs to the effect that she would secure to plaintiffs, by conveyance or by other assurance, the homestead occupied by her, to be possessed and enjoyed by plaintiffs after her death. The consideration of this contract moving from plaintiffs was their undertaking not to remove from Keokuk, and to give intestate such care and service as her condition of health and advancing age required, and to devote to her business such attention as it demanded. The evidence clearly shows that plaintiffs did perform these undertakings, and that intestate received the full measure of the consideration *30of the contract. It is true that there is no evidence showing negotiations between the parties, a formal proposition made on one side and accepted by the other. No witnesses detail the conversation of the parties made in negotiations leading to the contract. There is no writing witnessing, and no formal calling of witnesses to hear, remember and testify to an oral agreement between the parties. Such proceedings and methods of attestation and proof of contracts are often, perhaps usually, had when strangers, or those having no close relations, deal with one another. But they are unusual, perhaps] never had, when parent and child, having the fullest confidence and warmest affection for each other, have dealings of this kind with each other. The dutiful, tender and affectionate son would be shocked by a proposal to call a notary to attest, and witnesses to hear and remember, an agreement between him and his loving mother. The mother, ignorant of the forms and proceedings of business (one witness testifies that no one could be more so than intestate), would be equally shocked that one would doubt her intentions, and that she would fulfill her agreement. For these reasons, no doubt, .the agreement between the parties was not evidenced by writing, and no witnesses were called to hear it. The lips of the plaintiffs are closed by the law.
This court holds that there is no evidence supporting the contract. In my opinion there is the clearest evidence, which is sufficient to convince the judicial mind to the degree of the most complete satisfaction that the agreement alleged in the petition was entered into between the parties, and fully performed by plaintiffs. That evidence is the clear, distinct and often-repeated statements and admissions of intestate. She, over and over again, declares her intention that the plaintiffs shall have the homestead she occupied, that they had remained in Keokuk to enable them to devote care and attention to her, and that they had served her, etc., etc., showing distinct admissions of obligation to secure the property to plaintiffs in consideration of *31these services. Surely, upon this evidence, the law will infer what every reasonable man would believe, namely, that there was an arrangement between the parties to the effect that intestate should secure to them the homestead in consideration of these services to her.
II. The opinion plainly says that the evidence shows but limited attention and services of plaintiff to intestate which, inferentially, as I understand the opinion, is not sufficient to support a promise by intestate. Yet the opinion quotes evidence reciting the declarations of the intestate to the effect that she was dependent upon plaintiffs for care and attention, which they gave her; that Mr. Sample, on her account, remained in Keokuk; and “that he had been everything to her, and done everything for her that was possible for him to do.” And yet the opinion puts depreciatory estimates upon plaintiffs’ services and care of deceased. In my opinion, the evidence showing her declarations is the fullest possible proof- of the great extent of plaintiff’s services. She declares that they remained in K.eokuk on her account, to render services to her, and, having remained, William, the plaintiff, “had been everything to her, and done everything for her that it was possible for him to do.” Surely none knew better than she herself what services plaintiff had rendered to her. It surely was not the legal, moral or filial duty of plaintiffs to forbear to change their home, and to remove to another state or city in order to better their condition, and to remain in Keokuk presumptively to their financial disadvantage. There is clear evidence of services rendered by plaintiffs which constitute the consideration of the contract between the parties. The evidence shows that the relations between the decedent and Mr. Sample, plaintiff, were of the most tender and affectionate character. While she was a stepmother, neither could have been more affectionate and confiding as to the other had she been his natural mother. Doubtless she assumed the relation of stepmother when he was of such tender years that he *32acquired for her all tbe affection of a son, and she for him all the affection of a mother.
III. Let it be supposed that the case presents these facts: Mr. Sample, through a course of years, supplied his stepmother, at her request, with money, amounting in the aggregate to many thousands of dollars, which was used by her to secure services and other things necessary for her comfort. These large advances were often acknowledged by her; accompanied by expressions of gratitude therefor, with frequent declarations that in return for them, and in discharge of the obligation imposed upon her for these advances, she intended to secure to him the homestead occupied by her. Such expressions were made to him, and to his family, and often to others. Under such a state of facts, can any one doubt that the law would infer a contract binding her to secure to him the homestead in the absence of equities therein held by others? Indeed, the consideration for the contract having been shown beyond question, and the frequent admission of the obligation arising from the receipt thereof being established by clear proof, the law will infer a contract entered into between the parties binding the intestate to secure to plaintiff the homestead. See Wence v. Wykoff, 52 Iowa, 614; Van Sandt v. Cramer, Adm'r, 60 Iowa, 424. We think no one would contend, where the consideration of the alleged contract was money paid, instead of services rendered, that the law would not infer a contract between the parties. But in this case plaintiffs, instead of advancing to intestate a few thousands of dollars, gave her care, attention and services for years, which, under the law, they were not bound to render, and which these relations did not impose upon them as a filial, moral or honorable obligation. These services and care were more valuable to intestate than money. They required greater sacrifice on the part of plaintiffs than the payment of thousands; for the performance of these services kept plaintiffs and their family in Keokuk, depriving them all of opportunities of seeking employment and fortune elsewhere, which is usually attained *33by the intelligent and faithful. We are authorized to infer that plaintiffs are persons of that character. Surely the law will imply a contract under the facts of the case as readily as though it were shown that plaintiffs advanced to intestate money upon her request.
IY. In my opinion there can arise no reasonable-doubt that deceased intended that plaintiffs should have the property. Such an intention is established by the-plainest evidence. The law, on the facts and principles heretofore stated, will infer that there was an agreement between the parties, and the intention was-pursuant thereto. But under the principles of equity which require courts to effectuate intentions, the law, in order to do so, will infer the existence of a contract when there are no conflicting equities. This will be done in the exercise of the power of equity to enforce rights based upon unexecuted intentions. If such intentions be purely voluntary, chancery can give no aid to compel the enforcement of such rights. But the existence of the intention being clearly shown, equity will, with acute and vigilant intelligence, seek for grounds on which the intention may be effectuated. It will And, in this case, evidence establishing inferentially the existence of an agreement. Justice demands that the contract be enforced, and thereby the intentions of intestate be effectuated. The duty of courts in such cases is forcibly expressed by Lord Holt in Fisher v. Wiggins, 12 Mod. 297. In support of the doctrine he announces, he cites a rule announced seventy years before by Sir Hewby Hobabt, chief justice of the court of common pleas, in Earl of Clanrickard's Case, Hob. 273. Lord Holt uses this language: “Judges ought to be curious and astute to find a means to support the intent of parties, which often makes judges in constructions transpose clauses in deeds, and split an instant into priority and posteriority, and never adjudge without reluctancy against intent of parties, especially in intended provisions for children.” Sir Henby Hobabt, in the case cited by Lord Holt, makes this declaration: “I do *34exceedingly commend the judges that are carious and almost subtile, astute (which is the word used in the proverbs of Solomon in a good sense, when it is to a good end) to invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury, which by rigid rules might be wrought out of the act.” It will be observed that the rule of these cases is intended to effectuate the intentions of parties, and thereby attain justice and defeat wrong and injury in the administration of the law : ends and purposes for which this court has its existence, and which I am sure it is always the pleasure'of my brothers to endeavor to attain. The rule cannot be commended in language too strong. The attainment of justice and the prevention of wrong and injury is the aim and end of all adjudications of this court, and whatever stands in the way thereof must be brushed aside or overthrown, though it be forms and technicalities recognized by the law as controlling the practice in judicial proceedings. The obstacle in the way of recovery by plaintiffs in this case, as held by the majority of this court, is that they fail by direct evidence to establish clearly, as required by the technical rules of the law applicable to such cases, a contract formally entered into between them and the defendant’s intestate, Mrs. Sample. This rule exists to effectuate justice, and defeat attempts to perpetrate wrong. It is intended to protect estates from fraudulent claims, based upon alleged contracts made upon supposititious considerations, in cases wherein neither contract nor consideration is established, and nothing appears to support the good faith and justice of the claims. It is not intended to defeat a claim when the consideration upon which it is based is shown beyond dispute, and where justice and right demand that it be enforced. Technical rules of this character, with forms of proceedings, constitute the vessel in which the cargo of justice is borne. If one or the other is to be lost, it must be the vessel. The precious cargo must be saved, though the hull that bears it must be abandoned in order to secure its preservation. These *35doctrines lie at 'tbe very foundation of our system of jurisprudence and are as old as tbe common law. Lord Holt’s language, quoted from Fisher v. Wiggins, was used in 1693, and tbe decision of Sir Henry Hobart in Earl of Clanrickard’s Case was made in 1626. I am not informed that any court of England or tbe United States has ever doubted tbe doctrine of these cases. Surely it is not for tim supreme court of Iowa, which is and ought to be at the head of all advances towards the correct administration of justice, to ignore the doctrines and rules intended to attain that end, which, in the cases we have cited, were first announced two hundred and sixty-four years ago. This court should rather uphold, extend and broaden the doctrines, if it be required in the perfect attainment of justice. But the foregoing opinion of the majority of this court, in my judgment, by failure to give force and effect to authorized legal inferences drawn from established facts, without any attempt “to be curious and astute to find means to support the intent of parties,” defeats such intent. The contemplation of the effects of the decision of a majority of this court in the case is to me extremely painful. The deceased was possessed of considerable property which she acquired from the estate of Mr. Sample’s father. The justice and generosity of himself and his brother, the only heirs, secured it to her without contest or dispute. He, it is inferable from the record, received little, if anything, from his father’s estate. He is now a poor man, not owning a homestead. Through the decision of this court, the homestead, which his kind and loving stepmother intended to secure to him, is, by the defeat of her intentions, diverted to her distant relatives ; for she had no children of her own, and the son of her husband from whom she obtained her property cannot obtain, under, the decision of this court, the homestead she intended for him. I am forced to say that, as the law never intends such injustice, it ought not to be done by the decision of this court of equity. This court should, in the language of Lord Holt, “be curious and astute to find a means *36to support the intent” of the deceased in this case, and ■defeat the great injustice resulting from the decision of the majority announced in the foregoing opinion. • In my judgment the judgment of the district court ought .to be affirmed.