Andrews v. Aikens

• Citation: 260 P. 423,44 Idaho 797
• Decision Date: 17 October 1927
• Docket Number: 4650
• Parties: WESLEY ANDREWS, Respondent, v. ROBERT DOHERTY AIKENS and NELLIE AIKENS, Appellants
• Court: United States State Supreme Court of Idaho

260 P. 423

44 Idaho 797

WESLEY ANDREWS, Respondent, v. ROBERT DOHERTY AIKENS and NELLIE AIKENS, Appellants

No. 4650

Supreme Court of Idaho

October 17, 1927

SPECIFIC PERFORMANCE - WILLS - VALID CONTRACT - OBLIGATIONS OF SAME - MANAGEMENT AND CARE OF PROPERTY - NO DEVISE FOR SERVICES.

1. While a will is ordinarily revocable, yet if it is made pursuant to valid contract, testator cannot by revocation escape obligation of his contract, but restitution must be made to the other contracting by compensation in damages if pecuniary compensation can be had, and specific performance will only be decreed in the absence of a remedy at law.

2. To permit a decree of specific performance of contract to devise, in consideration of performance of services, the services must be of such a character that their value cannot be estimated by a pecuniary standard.

3. Services such as an ordinary real estate agent or factor could and does perform for a client, merely handling a farm and various properties, receiving and disbursing money, and in general acting as business advisor and assistant in respect thereto, are not such as to warrant specific performance of contract to make devise to compensate therefor.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. B. S. Varian, Judge.

Action for specific performance of contract to devise real estate. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded, with directions. Costs to appellants.

George Donart, Wm. M. Morgan and E. B. Smith, for Appellants.

The existence of an oral contract to devise land must be proved by testimony of disinterested witnesses. (40 Cyc. 1063; Hamlin v. Stevens, 177 N.Y. 39, 69 N.E. 118; Hanly v. Hanly, 105 A.D. 335, 93 N.Y.S. 864; In re Peterson, 76 Neb. 652, 107 N.W. 993, 111 N.W. 361; Reilly v. Burkelman, 149 A.D. 548, 134 N.Y.S. 13; Rosseau v. Rouss, 180 N.Y. 116, 72 N.E. 916.)

Specific performance of an oral contract to devise lands in consideration of services rendered will not be decreed unless the plaintiff has taken possession of the land or his services were of such a nature that their value cannot be estimated and compensated for in money, nor where the plaintiff has an adequate legal remedy. (Hoyt v Thomas, 58 Cal.App. 14, 207 P. 1038; Mathews v Tobias, 101 Ore. 605, 201 P. 199; Grindling v Rehyl, 149 Mich. 641, 113 N.W. 290, 16 L. R. A., N. S., 466; Morrison v. Land, 169 Cal. 580, 147 P. 259; Zellner v. Wassman, 184 Cal. 80, 193 P. 84; Swedish Evangelical Free Church v. Benson, 77 Colo. 370, 237 P. 165; Russell v. Sharp, 192 Mo. 270, 111 Am. St. 496, 91 S.W. 134; Hayden v. Collins, 1 Cal.App. 259, 81 P. 1120; Owens v. McNally, 113 Cal. 444, 45 P. 710, 33 L. R. A. 369; Whitman v. Dittman, 154 Minn. 346, 191 N.W. 821.)

Ordinary personal or professional services, such as services of an agent in looking after, caring for and leasing property, are not of such a nature that their value cannot be readily determined and compensated for in money. (Zellner v. Wassman, supra; Hoyt v. Thomas, supra; Mathews v. Tobias, supra; Olson v. Dixon, 165 Minn. 124, 205 N.W. 955.)

In case of breach of contract to bequeath or devise specific property the measure of damages is the value of the property, and that being readily ascertainable suit for specific performance cannot be maintained. (40 Cyc. 1073; Morrison v. Land, supra; Zellner v. Wassman, supra; Christin v. Clark, 36 Cal.App. 714, 173 P. 109; Flood v. Templeton, 148 Cal. 374, 83 P. 148.)

Where the services rendered were of a much more personal nature than those rendered by the respondent, it was held that they could be adequately compensated for in money and for that reason specific performance of a contract to devise real estate was denied. (Hoyt v. Thomas, supra; Olson v. Dixon, supra.)

James Harris, for Respondent.

The general rule is that a valid contract to devise land must be proved by clear, satisfactory and convincing evidence. ( Bedal v. Johnson, 37 Idaho 359, 218 P. 641, and cases cited; 1 Moore on Facts, 152; vol. 2, p. 1291; vol. 3, p. 1304.)

While it is prerequisite to the specific enforcement of an oral contract to devise land that both its existence and its terms be proved by clear and convincing evidence, the clearness and convincing force of the evidence is a question primarily for the trial court, and if the trial court finds on substantial evidence, or on conflicting evidence, that the contract was made and is definite and certain, such finding of fact will not be disturbed. (Bedal v. Johnson, supra, and cases cited; Schoonover v. Schoonover, 86 Kan. 487, 121 P. 485, 38 L. R. A., N. S., 752.)

It is said that an oral contract for the conveyance of real estate can only be proved by clear and satisfactory evidence; but whether the evidence is of that character, where it has substantial probative force, is for the trial court to determine. (Panhandle Lumber Co. v. Rancour, 24 Idaho 603, 135 P. 558; Woodell v. Albrecht, 80 Kan. 736, 104 P. 559.)

A witness, having no pecuniary interest, is disinterested. ( Morgan v. Johnson, 87 Ga. 382, 13 S.E. 710; Sayre v. Woodyard, 66 W.Va. 288, 66 S.E. 320; Fogal v. Page, 59 Hun, 625, 13 N.Y.S. 656; Brown v. Sutton, 129 U.S. 238, 9 S.Ct. 273, 32 L.Ed. 664.)

Since the contract has been fully performed, the best evidence of its terms is what was done under it--the construction placed upon it by the parties themselves. (6 R. C. L., p. 853, sec. 241; Mitau v. Roddan, 149 Cal. 1, 84 P. 145, 6 L. R. A., N. S., 275, 281; Livingston Oil Corp. v. Waggoner (Tex. Civ. App.), 273 S.W. 904; 13 C. J. 542, sec. 514.)

In specific performance, possession is not essential unless made so by the contract. (Aldrich v. Aldrich, 287 Ill. 213, 122 N.E. 472, subd. 9; Gladville v. McDole, 247 Ill. 34, 93 N.E. 86.)

Possession is not necessary where the services are rendered under the contract of such nature as to be difficult to determine their value; and to relegate claimant to his action of damages would perpetrate fraud under the protection of the statute of frauds, and to avoid which specific performance is granted. ( Teske v. Dittberner, 70 Neb. 544, 113 Am. St. 802, 98 N.W. 57; Svanburg v. Fosseen, 75 Minn. 350, 74 Am. St. 490, 78 N.W. 4, 43 L. R. A. 427; Schoonover v. Schoonover, supra; Wooley v. Stewart, 222 N.Y. 347, 118 N.E. 847.)

Possession is not necessary where money is not the standard of value, and the value of the services is land or article, especially if the services extend over a long period of time and relying on which no book accounts of the time expended or value thereof was kept. (Schoonover v. Schoonover, supra; Faxton v. Faxon, 28 Mich. 159.)

That the land and services may be equal value or near such "is no ground for refusing specific performance." ( Bradford v. Smith, 123 Iowa 41, 98 N.W. 377, subd. 3.)

"The essential elements of a bona fide purchaser of land are: (1) The payment of a valuable consideration, (2) good faith and absence of purpose to take an unfair advantage of third persons; and (3) absence of notice, actual or constructive of outstanding rights of others. Three elements must concur or the defense will be unavailing." (39 Cyc. 1687, and p. 1688.)

Said contracts are binding as against the heirs, devisees and purchasers with notice, or without consideration. ( Kastell v. Hillman, 53 N.J. Eq. 49, 30 A. 535; Teske v. Dittberner, supra.)

ADAIR, Commissioner. Babcock, Featherstone, CC., Wm. E. Lee, C. J., Givens, Taylor and T. Bailey Lee, JJ., concurring.

OPINION

ADAIR, Commissioner.--

This action was instituted by respondent against appellants, its object being to impress a certain tract of land with a trust for the purpose of carrying out an agreement of Robert C. Aikens to will the land to respondent in consideration of and compensation for certain services rendered by the latter to the former.

The essential facts involved are as follows: Robert C. Aikens, a bachelor, was about the age of 77 years in June, 1914. He was at that time, and for long prior thereto had been, the owner and in the possession of the land in controversy and other property. He had become bodily infirm and physically unfit to farm, or properly care for his property and business. Besides an 80-acre farm near Weiser, Idaho, he owned some residential properties at Baker, Oregon, which he rented. Respondent, his nephew, resided at Baker, and was engaged in a wholesale and retail mercantile business there. Aikens reposed the utmost confidence in the business ability and integrity of respondent, and cherished real love and affection for him. On June 12, 1914, Aikens executed and published a will, wherein among other legacies with which we are not concerned, he devised one forty of his Idaho ranch to respondent. On or about July 4, 1914, thereafter, he delivered this will to respondent for safekeeping, and at this particular time made an oral agreement that this land was to be devised to respondent in consideration of respondent managing his uncle's business and attending to all the details thereof. This was to be in full compensation for services theretofore rendered and to be thereafter rendered for said Aikens during the remainder of his life. These duties, it was mutually agreed, were to consist of renting the properties, collecting rents, paying taxes, keeping buildings insured and in repair, making settlements with tenants, paying over profits and returns to Aikens, and the doing of all other things connected with and incident to the proper management of these various properties. The agreement did not contemplate the furnishing of board, lodging or medical attention, but was confined to the management of the business affairs of the uncle. This final agreement was the culmination of an...