Aragon v. Boyd

• Decision Date: 17 February 1969
• Docket Number: No. 8681,8681
• Citation: 450 P.2d 614,1969 NMSC 16,80 N.M. 14
• Parties: Julia ARAGON, Plaintiff-Appellant, v. Thomas E. BOYD and Carmen Edwards, Executors of the Estate of Slaughter T. Murray, Deceased, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 614

450 P.2d 614

80 N.M. 14

Julia ARAGON, Plaintiff-Appellant, v. Thomas E. BOYD and Carmen Edwards, Executors of the Estate

of Slaughter T. Murray, Deceased,

Defendants-Appellees.

No. 8681.

Supreme Court of New Mexico.

Feb. 17, 1969.

[80 NM 14] Ramon Lopez, Lorenzo A. Chavez, Melvin L. Robins, Albuquerque, for plaintiff-appellant.

Quinn & Bonem, Clovis, for defendants-appellees.

OPINION

MOISE, Justice.

Plaintiff-appellant brought this action against defendants-appellees, executors of the estate of Slaughter T. Murray, deceased, seeking damages for the alleged breach by decedent of a contract to devise certain property to plaintiff.

The facts established at the trial are generally not in dispute. It appears that plaintiff, when a young girl 8 or 9 years of age, was taken into the home of Mr. and Mrs. Edmund Evans. Also living in the same home were decedent and his wife, Lola, who was the Evans' daughter. Decedent and his wife had no children. Plaintiff lived in the home as a member of the family for some seven years, until 1932, when she married and moved away. However, a very close relationship continued between plaintiff and the Evanses and the Murrays. Mr. Evans died in 1953, Mrs. Evans in 1958, and Mrs. Murray in May, 1963. According to plaintiff, Mr. Evans, before his death, promised to provide money so she could educate her children. Later, Mrs. Evans had said the same thing, and Mrs. Murray, some two weeks before she died, had told plaintiff that Mr. Evans had left $35,000.00 for plaintiff and the house (residence in Clovis) was also going to be hers. Plaintiff further testified that a few days after Mrs. Murray was buried, Mr. Murray called her to come to Clovis at which time he told her that Mr. Evans had left her $35,000.00 and inquired if she would rather have the 'house or the money,' to which she replied that she would rather have the house as he might need the money and that he could continue to live in the house. He then said he would make a will leaving her the house. Following this, on May 21, 1963, decedent made a will which provided for the sale of the house and payment of the proceeds to plaintiff.

However, on August 27, 1963, decedent executed a new will which provided the proceeds from the sale of the house should go to two of his brothers and a sister. In June, 1965, decedent sold the house to a sister for $30,000.00 and then made a new will, dated June 28, 1965, revoking all previous wills and providing for the devolution of his property, but leaving nothing to plaintiff.

The testimony of plaintiff concerning the conversation at which decedent offered plaintiff $35,000.00 cash left to her by Mr. Evans, or the house, was corroborated by plaintiff's husband and son. In addition, the wife of a cousin of Mrs. Murray testified that decedent had stated that plaintiff would be provided for. Also, there is testimony that plaintiff stayed with decedent in Clovis during most of the summer of 1963 upon his request that she do so and get the house in shape so it would be easy to keep clean; that she did so, cleaning, painting and repairing the house with the understanding that it was to be hers upon decedent's death. As a part of this activity plaintiff ordered curtains from Spiegel's, a mail order house, and placed them in decedent's home. Although decedent paid for all other expenses in connection with the cleaning and repairing of the house, he refused to pay for the curtains as stated in letter hereinafter quoted, and plaintiff paid for them with her own funds.

In addition, letters from decedent to plaintiff were introduced. In one of these, which is undated, but was evidently sent about October 17, 1963, is found the following:

'Julia you said Spiegel was yapping for the money of the curtains you put here in the house when I show you & Abel that Will I made you for the house. I told you it was good as gold if help me get the house in shape so it be easy to keep clean. That was done & settled. You pay for the curtains.'

Under date of November 14, 1963, plaintiff wrote decedent a letter, in which the following is stated:

'I sent that envelope with the will and the Oil Contract. Abel is still wondering, why you put his social security number on that Oil Contract that you made. Really Slaughter, we don't want to accept that Contract of those Oil Royalties, because that comes from your folks. We don't think that is right, As for the Will, that was Uncle Dume's (Mr. Evans) property, and by right it will belong to me after you are gone. So we rather for you not to register that contract, like you said you were going to. As for the house, you said in your letter that a Contract is better than a WILL and if you sell it now for sixty thousand dollars and make sure they will not tear it down until after you die, then you can do that if you think that it is better for me. The main thing, is that you stay in that house as long as you live and if you get to the point that you can't take care of yourself, you come and live with us and they can go ahead and tear it then.'

to which decedent replied, as follows:

'I received the Will & oil contract. If you decide to sell the house send me a short note that you want to sell the house. I will need that. That oil Co. is still wanting to buy the house. They will give you sixty thousand dollars & int. ten thousand a year. That's a good deal.

'Julia my folks are putting a lot of pressure don't know what to do. I don't want them to know Mr. Evans left you thirty five thousand dollars too. & about that agreement we made that you keep the house with every thing & I keep the money, for your own good keep your mouth shut.'

We take particular note of the fact the will made in May, 1963, a copy of which had been given to plaintiff, had been revoked by a new will made in August, 1963, and still in October and November, 1963, the correspondence indicates that plaintiff had not been advised. As a matter of fact, plaintiff testified she did not know of any new will. She learned of the sale of the property in 1965, but was not concerned about it. Also, during the period, decedent had given a check for $1,000.00 as a gift to plaintiff and her husband. She also testified that decedent's feelings toward her had altered because of her disapproval of a plan of his to move his wife's body to a lot closer to where her mother was buried, and to remove her father's remains from that location to where Mrs. Murray had been buried.

The only other pertinent evidence in the record has to do with plaintiff's request, some time before January, 1966, to borrow $10,000.00 from decedent, and her offer to give as security the property owned by her and her husband in Tucumcari. Defendants raise the question of why she should have made such an offer if she was honestly of the opinion that the Clovis home was hers or was to become hers.

The trial court found that shortly after the death of Lola, his wife, decedent asked plaintiff to come to Clovis and there advised her that she could have her choice between $35,000.00 cash and the house located at 1000 Main Street in Clovis. Upon plaintiff indicating a preference for the house, decedent stated he would make a will leaving it to her. Thereafter, decedent made a will in which he provided for sale of the house, with proceeds to go to plaintiff, and in letters in October and November, 1963, acknowledged that he had made a will devising 'the house' to plaintiff, and that this had been her choice, rather than money. However, subsequently, on or about August 27, 1963, another will was made wherein no provision was made for plaintiff, and proceeds from sale of the house were directed to go to others. In June, 1965, the will later admitted to probate was executed. It made no provision for plaintiff.

Notwithstanding the foregoing findings, the trial court also found that plaintiff did not have a reasonable belief that she had an enforceable claim against the estate of either Mr. or Mrs. Evans or Mrs. Murray, and did not forbear to exercise any such right because of decedent's promise to devise the house. The court then concluded that plaintiff had not proved the terms of the contract she claimed had been entered into with decedent for the devise of the house at 1000 Main Street, Clovis, by clear, convincing and satisfactory evidence; that plaintiff failed to establish any consideration passing from her to support a contract; that the contract asserted was for the conveyance of real estate and no written memoranda sufficient to meet the requirements of the statute of frauds had been presented; that decedent's promise to devise the property by will was not a present gift, and that the May, 1963, will was duly revoked by the later will admitted to probate without objection. We first consider whether the court correctly ruled that the contract asserted by plaintiff was unenforceable because of the absence of a sufficient memorandum signed by the party to be charged, as required by the statute of frauds. The applicable rules were recently discussed by us in Jennings v. Ruidoso Racing Association, 79 N.M. 144, 441 P.2d 42, 44 (1968), where we said:

'* * * The statute is not pressed 'to the extreme of a literal and rigid logic.' Marks v. Cowdin, 226 N.Y. 138, 123 N.E. 139. The statute of frauds is intended to protect against a fraud, but it is not intended to be taken as an escape for those seeking to avoid their obligations. Keirsey v. Hirsch, 58 N.M. 18, 26, 265 P.2d 346, 43 A.L.R.2d 929. It must be remembered that the memorandum, sufficient to satisfy the statute of frauds, need not in itself amount to a contract. The contract in this instance is an oral agreement. The statute of frauds only requires that there be written evidence to prove that the particular contract was made. Pitek v. McGuire, supra. * * *'

In Pitek v. McGuire, 51 N.M. 364, 184 P.2d 647, 1 A.L.R.2d 830 (1947), is found the following additional detailing of the...