Ashbauth v. Davis

• Citation: 71 Idaho 150,227 P.2d 954,32 A.L.R.2d 361
• Decision Date: 16 February 1951
• Docket Number: No. 7680,7680
• Parties: , 32 A.L.R.2d 361 ASHBAUTH et al. v. DAVIS et al.
• Court: United States State Supreme Court of Idaho

Page 954

227 P.2d 954

71 Idaho 150, 32 A.L.R.2d 361

ASHBAUTH et al. v. DAVIS et al.

No. 7680.

Supreme Court of Idaho.

Feb. 16, 1951.

Rehearing Denied March 9, 1951.

Gigray & Boyd, Caldwell, for appellant.

Earl E. Garrity, John W. Garrity, Nampa, J. W. Galloway, Boise, for respondent.

TAYLOR, Justice.

Plaintiffs (appellants) allege in their amended complaint that they are the sons and daughters, and all of the sons and daughters, of Agnes L. Sanford, deceased; that the defendants (respondents) are the devisees, legatees and heirs at law of Frank Sanford, deceased; that Agnes L. Sanford and Frank Sanford were married on or about November 28, 1927, and remained husband and wife until October 10, 1944, when Agnes L. Sanford died; that on January 26, 1939, Agnes L. Sanford and Frank Sanford entered into a written agreement which is attached to the complaint and is as follows:

'This agreement, Made and entered into this 26th day of January, 1939, by and between Frank Sanford of Melba, Idaho, the party of the first part, and Agnes L. Sanford of Melba, Idaho, the party of the second part, Witnesseth:

'That, whereas, the parties hereto are now and ever since the 28th day of November, 1927, have been Husband and Wife, and

'Whereas, each of the parties hereto were married prior to their marriage as aforesaid, and each have children born to their former marriages. There are no children born of the marriage of the parties hereto, and

'Whereas, the party of the first part was at the time of his marriage to the party of the second part, the owner of certain real estate situated in Canyon County, State of Idaho, which said property was and is the sole and separate property of the party of the first part, and

'Whereas, at the time of said marriage, the party of the first part was the owner of certain personal property, which has been used by said parties since their marriage and is co-mingled with the earnings of said parties since marriage, and

'Whereas, it is agreed between the parties hereto that the said personal property is the community property of the parties hereto, and

'Whereas, the party of the first part, has made a Will providing for the maintenance and support of the party of the second part, and

'Whereas, it is desired by the party of the second part that in the event that she shall die prior to the death of the party of the first part, that the party of the first part shall have the right to the use of her one-half of the community property for the remainder of his life, subject however, to the terms and conditions herein contained, and the party of the second part desires that said use of said property by the party of the first part, shall be vested in the party of the first part under the terms of this agreement,

'Now, therefore, this agreement witnesseth: In consideration of the mutual covenants and agreements, the party of the first part does hereby agree that in the event that the said party of the second part shall die prior to the death of the party of the first part, the party of the first part shall promptly have a complete inventory made of all the personal property owned by the parties hereto at the of the death of the party of the second part, fixing the fair market value thereof, such inventory and appraisement to be taken by three disinterested parties, and the value fixed upon said property by said appraisers, to be selected by the party of the first part, shall become final and conclusive as to the value of said community property;

'That, thereafter, the party of the first part agrees that he will by codicil, or otherwise, arrange that at the time of his death, that there shall be paid in equal shares to the heirs of the party of the second part, hereinafter named, the value of one-half of said community property without interest, after the death of the party of the first part;

'That, upon the death of the party of the second part, if she shall die prior to the party of the first part, the title to all said community property shall become immediately vested in the party of the first part, and the heirs of the party of the second part shall have no right or interest therein, save and except as against the estate of the party of the first part after his death and only to the amount of the respective shares in the one-half of said community property as determined by such inventory, and that nothing herein contained shall be deemed to in anywise give said heirs of the party of the second part, any right or claim thereto, until after the death of the party of the first part;

'That said share of the party of the second party in the community property shall be paid to the following named persons in equal shares and in case of the death of any thereof, same shall go to the child or children of such heirs, if any.

'If any of said heirs shall die without issue, then said shares shall be divided among the remaining heirs or the child or children of any of them that are deceased.'

Then follows the names and addresses of the heirs, and the signatures of the parties and witnesses.

The amended complaint then sets forth the description of what is alleged to have been accumulated by the parties as community property up to the time of the death of Agnes L. Sanford; and further alleges that, following the death of Agnes L. Sanford, Frank Sanford did not have an inventory made of the property fixing the fair market value thereof as required by the agreement; that he probated the estate of Agnes L. Sanford; that Frank Sanford died September 10, 1948, and that his will, contrary to the agreement, did not contain any provision willing to the heirs of Agnes L. Sanford her half of the community property, retained by him after her death, but did will all of the estate to his sons and daughters, the defendants herein; that the property comprising the estate of Frank Sanford contains the plaintiffs' share of their mother's estate, which, under the agreement, was to have been willed to them by Frank Sanford.

The prayer is for a decree declaring the plaintiffs to be the owners of and entitled to distribution of their mother's half of the community property as determined by the agreement, and that the defendants be required to hold the same in trust for, and to transfer the same to, the plaintiffs. The defendants' general demurrer was sustained and the action dismissed.

The demurrer was sustained on two grounds: First, that the complaint fails to allege a compliance with section 15-604 I.C. Second, that the contract is not one which could be enforced by specific performance. These are the propositions which are presented in the briefs of counsel.

Our claims statutes provide:

'All claims arising upon contracts, whether the same be due, not due or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever: * * *.' Sec. 15-604, I.C.

'No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, * * *.' Sec. 15-611, I.C. To state a cause of action upon such a claim, the complaint must allege that the claim was presented to the executor or administrator, within the time allowed. Flynn v. Driscoll, 38 Idaho 545, 223 P. 524, 34 A.L.R. 352; Wormward v. Brown, 50 Idaho 125, 294 P. 331.

Here the complaint contains no such allegation and the question then arises as to whether or not the action is based upon a 'claim' within the meaning of the statute. As early as 1886 this court held that the term, 'claim' does not include causes of action purely equitable, and in which purely equitable relief is sought. Toulouse v. Burkett, 2 Idaho 184, 10 P. 26. In that case the action was brought to foreclose a vendor's lien. The court quoted from Fallon v. Butler, 21 Cal. 24, 81 Am.Dec. 140: 'The term 'claims' in the probate act only has reference to such debts or demands against the decedent as might have been enforced in his lifetime by personal actions for the recovery of money, and upon which only a money judgment could have been rendered.' Later, in Martin v. Smith, 33 Idaho 692, 197 P. 823, it was held that an action against an administrator to recover a trust fund is not an action upon a claim against the estate, and that the claims statute does not apply. Also, Kite v. Eckley, 48 Idaho 454, 282 P. 868.

The action here brought is generally regarded as one in equity. But, since equity cannot compel the making of a will, it will grant relief, in a proper case, 'in the nature of specific performance' or 'quasi-specific performance', to avoid a fraud or injustice to the promisee. Bank of California, National Ass'n v. Superior Court, 16 Cal.2d 516, 106 P.2d 879; Page on Wills, Lifetime Ed., sec. 1736. The action is against the distributee, personally. It seeks to make him a trustee, of the estate coming into his hands, for the benefit of the plaintiff. Thus, it is not an action or claim against the estate. Bank of California, National Ass'n v. Superior Court, supra. It has been held that the executor or administrator is not a necessary party, unless some special relief is sought against him. McCabe v. Healy, 138 Cal. 81, 70 P. 1008; Furman v. Craine, 18 Cal.App. 41, 121 P. 1007; Swingley v. Daniels, 123 Wash. 409, 212 P. 729. On the contrary, if the cause were based upon a 'claim' within the statute, the action must be brought against the executor or administrator. Sec. 15-609, I.C. What is here said is intended only to draw a distinction between a 'creditor' and one asserting the rights of a 'distributee'. It is not intended to infer that the executrix is not a necessary party in this case. If the property, or any part of it, is still in the hands of the executrix, and the plaintiffs seek to there impress it with a trust before distribution, then of course she would be a necessary party.

Moreover, in this case the cause of action is not founded upon a claim which...