Alexander v. Lewes

• Decision Date: 15 October 1918
• Docket Number: 14634.
• Citation: 175 P. 572,104 Wash. 32
• Court: Washington Supreme Court
• Parties: ALEXANDER v. LEWES et al.

175 P. 572

104 Wash. 32

ALEXANDER v. LEWES et al.

No. 14634.

Supreme Court of Washington

October 15, 1918

Department 2.

Appeal from Superior Court, Cowlitz County; W. Z. Darch, Judge.

Suit by Fred R. Alexander against Adolphus Lee Lewes and others. From an adverse decree, plaintiff appeals. Reversed and remanded with directions.

Clarence H. Gilbert, of Portland, Or., and H. W. Arnold, of Vancouver for appellant.

Magill McKenny & Brush, of Portland, Or., for respondents.

CHADWICK J.

This is a suit to enforce specific performance of a contract to devise real property.

Frederick Lee Lewes, then of the age of 74 years, went to live with appellant and his wife, formerly Georgia Lee Lewes, a daughter of Frederick Lee Lewes, in the year 1901, and continued to reside with appellant as a member of his family until August 30, 1913. At that time and at the time of the death of Frederick Lee Lewes, he owned three pieces of land in Cowlitz county, Wash., a donation land claim containing 237.56 acres, a place known as 'The Homestead,' containing 160 acres, and a place known as 'Mother's Claim,' containing 120 acres, Georgia Lee Alexander died August 26, 1913; Frederick Lee Lewes died in August, 1915. He was the father of seven children, of whom four, the respondents in this case, survive him.

Appellant alleges in his complaint that there was an understanding between Frederick Lee Lewes and his wife and himself, in 1901, that Frederick Lee Lewes should make his home with his daughter and be cared for by them during his natural lifetime, and in consequence of this service Frederick Lee Lewes would leave to them the south half of the place known as 'Donation Land Claim.' Without reviewing the testimony offered to sustain this claim, we think the court rightfully held that the contract, if any, is not now capable of specific performance. The daughter, Georgia Alexander, having died before her father, and the rule being that contracts of the kind relief on are personal, specific performance will not be decreed beyond the lifetime of the party to whom the promise is made.

Appellant sets up a second cause of action growing out of the following state of facts: Upon the death of the daughter, Georgia Lee Lewes Alexander, Frederick Lee Lewes, then a member of the household of appellant, being desirous of continuing to make his home with appellant, went with him to the office of an attorney at law and there directed (appellant not being present in the room) that the attorney draw his will. The will provides:

'I give, devise and bequeath to my beloved son-in-law, Fred R. Alexander, the husband of my beloved daughter, Georgia Claudine Lee Alexander, now deceased, and to whom I am greatly indebted for extreme kindness, care and attention, and to whom, as a recognition of this kindness and care to me, I hereby place in the same position as regards my estate as I would place my said deceased daughter had she lived and survived me, to my son, Frederick Archie Lee Lewes, what is known as the donation land claim of my deceased brother, Adolphus Lee Lewes, and designated as claim No. 38, being part of section 30, in township 5, north of range 1 east of the Willamette Meridian, and claim No. 50 being parts of sections 24 and 25 in township 5, north of range 1 west of the Willamette Meridian, all in Cowlitz county, state of Washington, according to the official plat of survey and containing 278 acres of land, more or less, the same to be divided into two equal parts by a line running due east and west; my said son-in-law, Fred R. Alexander, to have the southern portion of the Land so divided and my son, Frederick Archie Lee Lewes, to have the northern portion of said land.'

Mr. Lewes expressed his cordial feeling toward appellant and a desire to recompense him for past favors, as well as like favors to follow in the future. Appellant, who had during the time the will was being prepared been engaged upon some errand, having returned to the outer office, was called into the room with the attorney and Mr. Lewes, and, according to the testimony of the attorney:

'When he had executed the will, he said: 'I am satisfied with that. It is just the way I wanted it.' And when Alexander was called into the room he said what I have repeated before, told him that--what he had done, or what Alexander had done for him, given him a good home, provided for his wants, and he was perfectly satisfied with his treatment, and that he wanted to remain, wanted him to keep him in his home the remainder of his life, and he spoke it with a great deal of feeling; sometimes put it with tears in his voice. * * * Just before they departed from the office, Mr. Lee Lewes stepped up to Mr. Alexander, and put his hand--one hand at least, or both hands, on his shoulder, and spoke about the home that they had given him, and the number of years that he had lived with them, or practically or substantially so, and that he had been a real son to him, and he wanted to continue to live with him as long as he lived. That is, in substance, the remark he made; he didn't want him to turn him out, he wanted him to keep him--furnish him a home. The old gentleman was very sincere, apparently, about it, and somewhat affected in his tone of voice and in his manner.'

At the same time and as part of the same transaction, the attorney prepared a contract providing for the future maintenance of a home for the said Frederick Lee Lewes, as follows:

'Know all men by these presents, that I, Fred R. Alexander, for and in consideration of one dollar, love and affection, and other valuable considerations to me paid by Frederick Lee Lewes, my father-in-law, do hereby promise, covenant and agree to and with Frederick Lee Lewes, who is now about 83 years old, that I will provide and maintain a home for him with me during the remainder of his natural life, and to take care of him in health and in sickness, and during any infirmities of old age, it being my purpose and intention to the best of my ability so to do, to maintain a home for him as good and comfortable to him as that given and maintained by his daughter, and my wife, Georgia Claudine Alexander, lately deceased, and I further hereby agree, to make him, Frederick Lee Lewes, beneficiary in my one thousand dollar life insurance policy in the Knights and Ladies of Security, in place of my deceased wife, so that he may receive and enjoy the proceeds of such policy in case he survives me.

'In witness whereof I hereunto set my hand and seal this 26th day of August, 1913.

'Fred R. Alexander.

'Witness: G. W. Allen.'

Mr. Lewes took possession of the contract. Four days after the execution of this will and contract, Mr. Lewes left the home of his son-in-law and took up his residence with the respondent Adolphus Lee Lewes. No reason was assigned, nor did appellant know of his going until he had moved away. Appellant testified that he told Adolphus Lee Lewes and a Mrs. Huff, the housekeeper, of the will. This is denied by Adolphus, who insists that the old man came to him voluntarily and under the coercion of no persuasion or duress whatever. But it seems quite certain that respondents knew of the will at the time the deeds hereinafter mentioned were executed. Within a day or two thereafter, Frederick Lee Lewes went to the lawyer, saying that he wanted to change his will; that he had left Alexander's home; that he had moved in order to keep peace in the family; and that it did not look well for him to live out of the family. The attorney says that Mr. Lewes told him not to tell the boys and not to tell appellant that he had changed his will. A few days before his death, he made deeds conveying all his property to respondents.

The court below denied specific performance upon the second cause of action.

Perhaps the fairest way to state the case of respondent is to quote the views of the lower court as we find them quoted in the briefs:

'Now let us see what rights he had under the second alleged contract:

'Here we have an old man past his eighty-fifth year whose life expectancy is only 2.77 years, agreeing to convey to his son-in-law property of the value of $12,000 to take care of him in all probability not to exceed 2 1/2 years. An old man who was not estranged from his own children; an old man who had plenty of means to take care of himself and whose children were able and willing to take care of him and who, three days after making the contract, leaves the home of his son-in-law for what reason none of us know (as his lips are now silent in death), goes to his son's home and tells him to take to Alexander the contract signed by Alexander, telling him that he did not want it any more. And in face of all this we have Alexander coming and saying that he is entitled to this $12,000 worth of property. Any rights that he might have must be based entirely upon this last contract. Nothing remains of the first contract which would entitled him to a specific performance, he having waived it, if such a contract had ever been made. This contract was also made within a very short time after the death of his daughter and in all probability the old gentleman's feelings were worked up to that pitch in his dotage, which leaves a question as to whether or not he was really responsible for his acts. The plaintiff claims that the will recited as a part consideration the treatment that he had received from Alexander and his wife before. I do not take that statement to mean that which the plaintiff intends for it, but rather that it is an acknowledgment merely of a kindness received by the old gentleman from Alexander, and there is no question but that when Alexander's wife was living, that the old gentleman received the best of treatment at the hands of Alexander

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