Bentzen v. Demmons

• Decision Date: 11 January 1993
• Docket Number: Nos. 27943-2-,28246-8-I,s. 27943-2-
• Court: Washington Court of Appeals
• Parties: Ingrid BENTZEN, a single woman, Appellant, v. Alan DEMMONS, Personal Representative of the Estate of Jesselyn D. Roehr, Respondent.

Page 339

68 Wn.App. 339

842 P.2d 1015

Ingrid BENTZEN, a single woman, Appellant, v. Alan DEMMONS, Personal Representative of the Estate of

Jesselyn D. Roehr, Respondent.

Nos. 27943-2-I, 28246-8-I.

Court of Appeals of Washington,

Division 1.

Jan. 11, 1993.

James D. McBride, Sr., and Julin, Fosso, Sage, McBride & Mason, Seattle, for appellant.

Paul G. Eklund, Philip A. Talmadge, and Talmadge & Cutler, P.S., Seattle, for respondent.

AGID, Judge.

Ingrid Bentzen appeals the judgment entered against her in an action to enforce an oral contract to make a will. She argues that the trial court erred in applying the Deadman's statute, in finding that she did not establish the existence of an oral contract to devise, in awarding attorney fees to the opposing party, and in failing to timely enter written findings of fact and conclusions of law. We reverse and remand for a new trial.

Jesselyn Roehr died intestate on November 17, 1988. Alan Demmons, Roehr's nephew and her only heir under the Washington laws of intestate succession, was appointed personal representative of her estate. Ingrid Bentzen is a longtime friend of Mrs. Roehr's who claims that an oral contract to make a will existed between herself and the decedent. She filed this action against Alan Demmons as the personal representative of Mrs. Roehr's estate to enforce that contract.

Bentzen first became acquainted with Mrs. Roehr in 1958. In 1961, Bentzen's family moved to California and she moved in with the Roehrs so that she could stay in Washington to finish high school. Bentzen participated in the care and management of the Arabian horses that the Roehrs owned and, in turn, received room and board. She continued to reside with the Roehrs, and after their divorce with Mrs. Roehr, until 1977. During the last year she lived with Mrs. Roehr, Bentzen helped her move into a condominium and the two looked together for a farm for Bentzen and the women's horses. Although Bentzen purchased the farm in her name only, two witnesses testified that Mrs. Roehr identified one of the bedrooms in the house at the farm as hers.

A number of witnesses also testified concerning the warm and personal nature of the friendship between Mrs. Roehr and Bentzen, in which their mutual love for keeping and showing horses clearly played a significant part. It is apparent from the record that Mrs. Roehr regarded Bentzen virtually as a daughter. Several witnesses testified that Mrs. Roehr had told them that she had made arrangements for all her property to go to Bentzen after her death since Bentzen would know what to do with everything. Evelyn Huff, an old friend of Mrs. Roehr's, testified that Mrs. Roehr told her in 1982 that she had an understanding with Bentzen that all Roehr's property would go to her after her death in return for Bentzen's caring for her should she become ill or incapacitated. ¹ Elma May White, a friend of Mrs. Roehr's for over 40 years, testified that Mrs. Roehr told her that Bentzen was not being paid for riding and showing her horses because all her property would go to Bentzen. White also testified that Mrs. Roehr told her she felt fortunate that she would be able to go live with Bentzen when she became older or incapacitated because she greatly feared nursing homes. Ray Fletcher, a horse show association officer who had frequent contact with Mrs. Roehr, testified that after she was hospitalized in 1986, Roehr told him that she would be moving to Bentzen's farm. Witnesses also testified that in the last few years of Mrs. Roehr's life, Bentzen took her to several horse shows and made the arrangements necessary to accommodate the wheel chair Mrs. Roehr required.

During trial, Bentzen asked the trial court to permit her to testify about the oral contract she alleged between herself and the deceased. She argued that Demmons had waived the bar imposed on such testimony by the Deadman's statute when he submitted an affidavit in connection with an earlier motion for partial summary judgment. The trial judge denied that motion and issued an oral ruling, finding for Demmons on all issues and dismissing Bentzen's complaint. Written findings and conclusions were not entered until March 1992, approximately 18 months later. In a separate decision, the trial court awarded costs and attorney fees to Demmons in the amount of $515 and $55,000, respectively. Bentzen appeals from each of those decisions which we have consolidated.

I. WAIVER OF DEADMAN'S STATUTE

Bentzen first contends that the trial court erred in concluding that Demmons' statements in an affidavit submitted in connection with his earlier summary judgment motion did not waive the Deadman's statute. ² The Deadman's statute, RCW 5.60.030, provides in relevant part:

No person offered as a witness shall be excluded from giving evidence by reason of his or her interest in the event of the action, as a party thereto or otherwise, but such interest may be shown to affect his or her credibility: Provided, however, That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through or from any deceased person ... [that person] shall not be admitted to testify in his or her own behalf as to any transaction had by him or her with, or any statement made to him or her, or in his or her presence, by any such deceased ... person....

A person is a party in interest for purposes of RCW 5.60.030 when he or she stands to gain or lose in the action in question. In re Estate of Shaughnessy, 97 Wash.2d 652, 656, 648 P.2d 427 (1982). Not all testimony by a party in interest about the words or acts of the decedent is prohibited. The bar extends only to words or acts involving a transaction.

A transaction ... means the doing or performing of some business between parties, or the management of any affair. To be a transaction in such a case, the matter concerning which the testimony is given must involve some act by and between the parties for the benefit or detriment of one or both of the parties. It has been held, and properly so, that the test of transactions with [the] deceased ... is whether [the] deceased, if living, could contradict the witness of his own knowledge.

(Citations omitted.) In re Estate of Wind, 27 Wash.2d 421, 426, 178 P.2d 731 (1947). Testimony of a negative character, i.e., testimony regarding what a transaction was not, can also be excluded under the statute. Martin v. Shaen, 26 Wash.2d 346, 352, 173 P.2d 968 (1946).

The protection of the statute may be waived, however, when the protected party introduced evidence concerning a transaction with the deceased. McGugart v. Brumback, 77 Wash.2d 441, 450, 463 P.2d 140 (1969); Ellis v. Wadleigh, 27 Wash.2d 941, 952, 182 P.2d 49 (1947); Percy v. Miller, 115 Wash. 440, 444-45, 197 P. 638 (1921); Thor v. McDearmid, 63 Wash.App. 193, 202, 817 P.2d 1380 (1991). Once the protected party has opened the door, the interested party is entitled to rebuttal. Johnston v. Medina Imp. Club, 10 Wash.2d 44, 59-60, 116 P.2d 272 (1941). However, a waiver by introduction of testimony about one transaction does not extend to unrelated transactions and conversations. In re Estate of Malloy, 57 Wash.2d 565, 568, 358 P.2d 801 (1961). Evidence concerning a transaction with the deceased presented at an earlier proceeding or submitted in connection with a summary judgment motion can be prohibited by RCW 5.60.030. In re Estate of Reynolds, 17 Wash.App. 472, 475-76, 563 P.2d 1311 (1977). Consequently, such evidence may also constitute a waiver which would permit rebuttal testimony concerning the transaction at a subsequent trial. ³

We conclude that Demmons' statements that his aunt never told him of the existence of an oral agreement constituted a waiver of the Deadman's statute sufficient to overcome the bar imposed by the statute. ⁴ Even though Demmons did not testify about the specific transaction, his negative testimony went to the heart of Bentzen's claims and the matters directly at issue in this case. He was testifying, in effect, that such an agreement did not exist and that no services were performed in reliance on it. His negative assertions also denied the conversation between Bentzen and the decedent, to which Bentzen was prepared to testify, had ever occurred. The trial court was therefore required to permit Bentzen to rebut Demmons' assertions with her own testimony about the conversation in which she alleged the oral agreement between herself and the deceased was formed. ⁵ Demmons' statements regarding Bentzen's failure to provide health maintenance and other services to the decedent also constituted a waiver of the bar that would normally be imposed by the Deadman's statute. Bentzen should also have been permitted to testify about such activities. ⁶

II. EXISTENCE OF AN ORAL CONTRACT TO DEVISE

Bentzen next argues that the trial court erred in finding that Bentzen failed to prove the existence of an oral contract.

While equity will recognize oral contracts to devise, such contracts are not favored and will be enforced only upon very strong evidence that the promise was made in exchange for valuable consideration and deliberately entered into by the decedent. Cook v. Cook, 80 Wash.2d 642, 644, 497 P.2d 584 (1972). To establish such an agreement, the claimant must prove that (1) the contract alleged to exist was entered into by the decedent and the person asserting that the contract existed; (2) the services contemplated as consideration for the agreement were actually performed; and (3) the services were performed in reliance on the agreement. In re Estate of Thornton, 81 Wash.2d 72, 76, 499 P.2d 864 (1972); Cook, 80 Wash.2d at 644-45, 497 P.2d 584. Each of these elements must be established to a "high probability." Cook, 80 Wash.2d at 647, 497 P.2d 584. Statements of intention alone do not necessarily support the existence of an express...