O'Brien v. Perry

THE COURT.

Unlawful detainer. Plaintiff had judgment, from which defendant Annie Perry appeals on the judgment-roll. Plaintiff’s complaint proceeds upon the theory that defendants occupy the premises in question—a flat, Ho. 126-| Hoe street, San Francisco—as tenants at will of plaintiff.

Defendants pleaded occupancy of the premises under an oral ■contract with plaintiff by which defendants were to live in the flat, there furnish him a home, care for his personal wants, in consideration of which plaintiff was to make a will in appellant’s favor and permit her and her family to remain in said flat during plaintiff’s life.

Plaintiff had made a conditional conveyance of certain of his real property to two of his daughters, other than defendant Annie, but owing to some disagreement in relation thereto the deeds were recalled and a settlement made of the controversy. The findings as to this and some other matters do not aid materially in deciding the case and need not b'e particularly referred to. As to the agreement under which appellant claims the court found as follows: “During the month of May, 1895, and while said settlement was in progress [referring to the settlement of the controversy with his other two daughters], said plaintiff proposed to defendant Annie Perry, who was then living with her husband and family of three children upon premises owned by her and her husband on Eureka street, in the city and county of San Francisco, that if she would give up her said residence and go with her said husband and family to live in said flat belonging to him at Ho. 126£ Hoe street, .and if she would there furnish him with'a home for and during the remainder of his life with her and her family, and provide for his personal wants, he, the plaintiff, in consideration thereof, would give and grant to her the right to live with her said family in said flat, Ho. 126-| Hoe street, ■ during his, the plain

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tiff’s lifetime, free and clear of any rent or other charge, and that he would thereupon make arid publish a will, in and by which he would devise and bequeath to her all of his property not deeded to his daughters Sarah and Lizzie, subject to the payment of a bequest to his daughter Mary Bergener of two thousand ($2,000) dollars, and a bequest to his son, Joseph Damien O’Brien, of one thousand ($1,000) dollars, and a bequest to his nephew, David O’Brien, of five hundred ($500) dollars, and subject also to the payment of expenses of administration, and the payment to his executors of one thousand ($1,000) dollars for the purpose of reinterring the remains of deceased members of his family, should such reinterment be necessary, and for the payment of masses for the repose of their souls. Said defendant, Annie Perry, then and there, by and with the consent of her husband, accepted each and all of said proposals on the part of plaintiff, and agreed to perform all of them.”