Allen v. Dillard

• Decision Date: 05 October 1942
• Docket Number: 28671.
• Citation: 15 Wn.2d 35,129 P.2d 813
• Parties: ALLEN v. DILLARD et al.
• Court: Washington Supreme Court

129 P.2d 813

15 Wn.2d 35

ALLEN v. DILLARD et al.

No. 28671.

Supreme Court of Washington

October 5, 1942

Department 2.

Consolidated actions by Mary True Allen against James P. Dillard, executor and trustee of the last will and testament of Margaret Johnson, deceased, and others, for specific performance of an alleged oral agreement between plaintiff's deceased brother and Margaret Johnson, deceased, whereby Margaret Johnson, deceased, was to execute a will leaving her property to the plaintiff and to impose a trust in plaintiff's favor on certain property belonging to the estate of Margaret Johnson, deceased, on ground that she had agreed to leave all of her estate to the plaintiff or her children. From a judgment dismissing the consolidated actions, the plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, Spokane County; Charles W. Greenough, judge.

True Meyer & Crawford, of Port Clinton, Ohio, and Clarke & Eklow of Spokane, for appellant.

Dillard & Powell, of Spokane, for respondents.

BEALS, Justice.

The late Doctor John Arthur True, a physician who for several years practiced his profession in Spokane, and plaintiff Mary True Allen, were brother and sister, and nephew and niece, respectively, of Doctor Margaret Johnson, also a physician who for many years practiced her profession in the city of Spokane.

Plaintiff filed two actions Before the superior court for Spokane county, naming as defendants in each action James P. Dillard as executor of the last will and testament of plaintiff's aunt, Margaret Johnson, deceased, together with other persons named as beneficiaries under Doctor Johnson's will, or being her heirs at law. In one action, plaintiff sought specific performance of an alleged oral agreement between her deceased brother, Doctor John Arthur True, and Doctor Margaret Johnson, while in the other action she sought to impose a trust in her favor upon certain property belonging to the estate of Doctor Johnson, which was bequeathed by the testatrix to certain of the defendants.

In her complaint in the suit to establish a trust for her benefit, plaintiff alleged that her brother and her aunt were for many years associated together in the practice of medicine, and that there existed between them a close relationship of trust and mutual confidence; that on or prior to July 9, 1934, Doctor True informed Doctor Johnson that he wished to leave the latter half of his estate, so that in case of his death prior to that of his aunt, the latter would be able to enjoy her life in comfort, but that Doctor Johnson should by her will leave the property so bequeathed to her by Doctor True to the plaintiff or to her children; that Doctor Johnson acquiesced in the expressed wish of her nephew, and Doctor True, relying upon Doctor Johnson's statement that she would carry out his wishes, made his will, leaving one-half of his estate to Doctor Johnson; that on the same day, and for the purpose of carrying out Doctor True's expressed wish and intention, Doctor Margaret Johnson executed her will, providing that in case Doctor True should not survive her, and should leave no issue, all of her property should go to plaintiff, or in case of plaintiff's decease prior to the death of the testatrix, to plaintiff's child or children; that, relying upon Doctor Johnson to carry out his expressed wish, Doctor True made no change in his will, and died July 26, 1935; that Margaret Johnson qualified as executrix of his will, and received and accepted, in her individual capacity, under that will an undivided one-half of his estate.

Plaintiff further alleged that Margaret Johnson, in violation of the trust and confidence reposed in her by Doctor True, and of his expressed desire and intention, revoked her will which she had executed July 9, 1934, and executed another will, which failed to carry out the trust imposed upon her; that Margaret Johnson died October 20, 1940; that her later will was probated, and defendant James P. Dillard, who was named therein as executor thereof, qualified as such executor, and ever since has been acting as such; that Doctor Johnson's estate was appraised at over twenty-five thousand dollars, and consists of property within Spokane county, Washington.

Plaintiff prayed for a decree adjudging that defendant executor and the beneficiaries under Doctor Johnson's will hold all of that portion of Doctor Johnson's estate which came to her under Doctor True's will in trust for plaintiff, and that the defendants be required to perform the obligation of Margaret Johnson.

The defendants answered this complaint with simple denials, praying that the action be dismissed.

In the other action which plaintiff instituted, asking for a decree of specific performance, she included in her complaint practically the same allegations above set forth, adding, however, an allegation to the effect that Doctor True and Doctor Johnson agreed that the former would leave one-half of his estate to Doctor Johnson, and that the latter, in consideration of the agreement, promised to leave all of her estate to Doctor True if he survived her, or to his issue if he should predecease her, leaving issue, and if Doctor True should predecease Doctor Johnson, leaving no issue, then to the plaintiff or her children. In this action plaintiff prayed that the court decree specific performance of the alleged agreement between Doctor True and Doctor Johnson to make mutual wills, as above described.

Defendants answered this complaint with denials.

The two actions were consolidated, and having come on regularly for trial, plaintiff having rested her case, the defendants moved that the actions be dismissed, upon the ground that the evidence introduced by plaintiff failed to establish any cause of action against defendants. The court having granted this motion, judgment was entered dismissing the action, from which judgment plaintiff has appealed.

Error is assigned upon the court's ruling that the testimony of Oliver True, to the effect that his cousin, Doctor John Arthur True, told him a few days after the execution of the wills of Doctor Johnson and himself, executed July 9, 1934, that these wills had been made, and upon what agreement they had been made, was inadmissible. Error is also assigned upon certain rulings of the court; upon the refusal of the trial court to grant appellant any relief; and finally, upon the judgment dismissing the consolidated actions.

By his will dated July 9, 1934, Doctor True, after directing the payment of any just claims against his estate, bequeathed all his property to his aunt, Doctor Margaret Johnson, and his sister, Mary True Allen, in equal portions, providing that if either legatee should predecease the testator, then the survivor should receive his entire estate, and that if both legatees should predecease the testator, the entire estate should go to the children of his sister, Mary True Allen, appellant herein. The will contains no restriction or limitation whatsoever upon the bequest to Doctor Johnson, who was appointed sole executrix thereof.

By her will, also bearing date July 9, 1934, Margaret Johnson bequeathed her entire estate to Doctor True, if he should survive the testatrix, providing that if Doctor True should not survive the testatrix but leave children, one-half of her estate should go to his children and the other half of her estate to appellant, Mary True Allen, or her children. If Doctor True should predecease the testatrix, leaving no children, then the entire estate should go to Mary True Allen, if living at the date of Doctor Johnson's death, or her children in case Mrs. Allen should not then be living.

Neither will contained any statement that the testators had agreed to make mutual wills, nor made any reference to the will of the other testator.

Doctor True died July 26, 1935. His will was probated and letters testamentary issued thereon to Margaret Johnson. His estate was appraised at $28,799.48, his debts were estimated at less that two thousand dollars, and the estate, which consisted entirely of personal property, was declared solvent. The original file of the probate proceeding is in evidence, and does not show that the estate ever been closed.

Doctor Margaret Johnson died October 20, 1940, and a will which she executed October 26, 1939, was admitted to probate and letters testamentary thereon issued to James P. Dillard, who was named in the will as executor thereof. By this will, Doctor Johnson bequeathed to appellant, Mary True Allen, bonds of the face value of two thousand dollars, which were appraised at $1, 695.88. She bequeathed to her sister, Emma Coomer, the bulk of her estate, which was appraised at $25,963.75. In the order of solvency which was entered it is stated that debts due from the estate did not exceed five thousand dollars.

Margaret Johnson was a sister of the mother of Doctor True and appellant, and the relationship between Doctor Johnson and Doctor True had always been very close and affectionate--as the testimony indicates, more like mother and son than aunt and nephew.

Oliver True, a practicing lawyer residing in Port Clinton, Ohio, and Doctor John Arthur True were first cousins and very intimate, having been brought up together.

In support of her contention that Doctor True and Doctor Johnson had agreed to make mutual wills, and had executed the wills bearing date July 9, 1934, pursuant to that agreement, and that because of the subsequent death of Doctor True, Doctor Johnson was precluded from making any subsequent will to appellant's detriment, appellant offered the evidence of her cousin, Oliver True. Respondents strenuously objected to the important portion of Mr. Oliver True's testimony, and the court admitted the...