Bayley v. Lewis

• Court: Washington Supreme Court
• Writing for the Court: HAMLEY; SCHWELLENBACH
• Citation: Bayley v. Lewis, 236 P.2d 350, 39 Wn.2d 464 (Wash. 1951)
• Decision Date: 15 October 1951
• Docket Number: No. 31670
• Parties: BAYLEY et al. v. LEWIS.

Page 464

39 Wn.2d 464

236 P.2d 350

BAYLEY et al. v. LEWIS.

No. 31670.

Supreme Court of Washington, en Banc.

Oct. 15, 1951.

Rehearing Denied Jan. 9, 1952.

Heideman & Flanagan, Glen E. Duncan, Seattle, for appellant.

Bayley, Fite, Westberg & Goodin, Seattle, for respondents.

HAMLEY, Justice.

The principal legatees of an estate brought this action to recover from Mrs. Roberta L. Lewis the consideration they paid to her in settlement of a threatened will contest. The executor of the estate had also been named as one of the plaintiffs, but was later dismissed from the action upon stipulation of the parties. Mrs. Lewis denied the allegations of the complaint and, by cross-complaint, sought recovery of additional consideration alleged to be due under the settlement contract. After a trial to the court without a jury, judgment was entered for plaintiffs, and defendant's cross-complaint was dismissed. Defendant has appealed.

The estate in question is that of Clara M. Clayton, who died in Seattle on November 22, 1948. She left a will by which one thousand dollars was given to her daughter, Mrs. Lewis, the appellant herein. A number of bequests were left to other relatives and friends, but the bulk of the estate was left to Wayne McDonough, Mrs. Josephine Seeley, Alfred D. Hendrickson, and William Hendrickson, Jr., the four respondents herein.

Mrs. Lewis threatened to contest the will. A settlement of her claims was then negotiated by the executor, evidenced by a written agreement executed by Mrs. Lewis and respondents on December 7, 1948. Under this contract Mrs. Lewis agreed to abandon and forego the institution of a will contest and to release and acknowledge full settlement and discharge of all claims which she might have against the estate except as to the one-thousand-dollar bequest.

The consideration to be paid to Mrs. Lewis under this agreement consisted of thirty-five hundred dollars and four pieces of jewelry. The cash was to be paid as follows: Two thousand dollars upon the execution of the agreement, contributed by all respondents; one thousand dollars, contributed by Mrs. Seeley, Hendrickson and Hendrickson, Jr., to be paid at the time the estate was to be distributed; and five hundred dollars, contributed by McDonough 'as soon as the same can be secured from the estate.' The four pieces of jewelry had been bequeathed, under the will, to Mrs. Seeley. Under the settlement contract, she authorized the executor to deliver these items of jewelry to Mrs. Lewis 'as soon as this agreement has been duly executed' by appellant.

At the time the agreement was executed, Mrs. Lewis was paid two thousand dollars and given possession of three of the items of jewelry. The fourth item, a two-stone diamond ring, had not been appraised and Mrs. Lewis therefore returned to her home in San Francisco without it. On February 14, 1949, the executor shipped the ring to a San Francisco bank for delivery to Mrs. Lewis. Before receiving notice of this shipment, she instructed her lawyer in Seattle to notify the parties that his client elected to rescind the settlement contract. This notice was served upon the executor on February 18, 1949, and a copy was mailed to each respondent. Mrs. Lewis then refused to accept the ring, and it was subsequently returned to the executor.

The notice referred to does not specify the grounds for rescission. It developed at the trial of the instant action, however, that the ground relied upon was failure to make delivery of the two-stone diamond ring immediately upon execution of the settlement contract. When the notice of rescission was served upon the executor there was tendered, at the same time, a certified check in the sum of two thousand dollars, the three pieces of jewelry which had been delivered to appellant, and an executed copy of the settlement contract. The executor rejected the notice of rescission and tender on the ground that he was not a party to the settlement contract and on the further ground that the certified check was not legal tender of the two thousand dollars. On March 1, 1949, respondents Seeley, Hendrickson and Hendrickson, Jr., wrote to Mrs. Lewis, confirming the action of the executor in refusing the tender.

Mrs. Lewis instituted a will contest in May, 1949. The grounds urged were undue influence, lack of testamentary capacity, fraud and duress, and failure to comply with statutory requirements relative to the execution of wills. The executor served and filed an answer which included an affirmative defense that Mrs. Lewis had entered into the settlement contract of December 7, 1948. The latter alleged in her reply that this contract had been rescinded.

The will contest came on for trial before Judge Donald A. McDonald on October 31, 1949. Mrs. Lewis' demurrer to the affirmative defense was first argued. During the course of this argument her counsel indicated that his client was then willing to accept her benefits under the settlement contract and discontinue the will contest. Counsel for the executor then asked for a recess so that Mrs. Seeley and McDonough, who were present in the court room, could be consulted. Following this consultation, the executor and his counsel and counsel for Mrs. Lewis conferred with Judge McDonald in chambers.

There was discussion in chambers as to what further tender the executor should make in order to constitute compliance with the settlement contract on behalf of the principal legatees. The executor apparently took the position that the remainder of the cash consideration was not then due and that it was not necessary to tender the ring because Mrs. Lewis had served notice of rescission. In response to this view respecting tender of the ring, counsel for Mrs. Lewis stated that his client was no longer relying on rescission and would withdraw her reply which stated a contrary position. The court then said that the executor would have to produce the ring. The executor stated that he would have the ring available at twelve o'clock noon that day. After the conference in chambers had concluded, but before the trial was resumed, counsel for the executor asked counsel for Mrs. Lewis what he intended to do. The latter replied, 'We are going to take a nonsuit.'

When the trial resumed, counsel for the executor gained the attention of the court and the following statements were made:

'MR. KAHIN [Counsel for executor]: If Your Honor please, we wish to join in the rescission of this agreement at this time that Counsel has taken the position he has rescinded, and we will exert all of our legal rights as against the party rescinding this contract in procuring restitution of what has been received. We agree to the rescission.

'MR. FLANAGAN [Counsel for Mrs. Lewis]: Well, Your Honor, it's not right that the rescission as I stated in your chambers has been withdrawn, our offer to rescind, and it is our position that by relying on the contract and by tendering the ring under the contract that the Counsel for the adverse parties to this lawsuit have reinstated the contract or waived any offer of rescission, and we are therefore relying on the contract, and in relying on the contract as a part of it we are taking at this time a voluntary nonsuit on the will contest.'

A voluntary nonsuit without prejudice was thereupon granted, with taxable costs. As the statute of limitations had then run against the will contest, this was, in effect, a nonsuit with prejudice. Later that day, Mrs. Lewis served a written demand upon the executor for delivery of the two-stone diamond ring. The ring was never delivered to her, and the principal legatees did not pay the fifteen-hundred-dollar balance called for under the settlement contract. Instead, they instituted this action for recovery of the money and jewelry which had been given to Mrs. Lewis in part payment of the consideration specified in that contract.

The facts recited above are in greater detail than as set forth in the court's findings of fact, but are not in substantial disagreement with the court's findings. To the extent that there is any disagreement, we find that the...