Bernkrant v. Fowler
| Decision Date | 17 October 1960 |
| Citation | 8 Cal.Rptr. 326 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Louis BERNKRANT, Florence Bernkrant and Alfred Bernkrant, Plaintiffs and Appellants, v. Dorothy Black FOWLER, as Executrix of the Estate of John Granrud, Deceased, Defendant and Respondent. Civ. 24346. |
Betty Aronow, San Jose, and George Rudiak for appellants.
Egly & Wiener, Covina, for respondent.
This is an action against the executrix of the Estate of John Granrud, Deceased, to cancel a promissory note and for reconveyance of the trust deed securing said note, both executed by plaintiffs in favor of said John Granrud, the action being based upon an oral agreement wherein said decedent agreed to provide by will for the forgiveness of any unpaid balance of said note at the time of his death.
Plaintiffs appeal from a judgment in favor of defendant. The appeal is on the clerk's transcript only which includes the judgment roll and certain designated papers and records, including the written opinion of the trial judge, it being contended that the conclusions of law and judgment are not supported by the findings of fact.
The trial court found that on July 1, 1951, plaintiffs were the owners of certain real property in Las Vegas, Nevada, commonly known as the 'Granrud Garden Apartments'; that at said time the property was subject to a first deed of trust in favor of David O. Parks and Lenabel Parks given to secure a note of $17,820, payable in monthly installments and that the then unpaid balance was approximately $11,000. That at the same time the property was subject to a second deed of trust in favor of John Granrud given to secure a note issued by the plaintiffs dated July 25, 1952, and payable to John Granrud in the amount of $32,871.61, payable in monthly installments, and that the then unpaid balance of said note was approximately $24,000. That on or about July 1, 1954, in Las Vegas, Nevada, the deceased, John Granrud, orally stated to the plaintiffs that he would 'make a sporting proposition and provide in his Will that any debt at the time of his death which remained on the purchase price' of the John Granrud Garden Apartments 'would be forgiven and cancelled in exchange for a partial payment and refinancing' of the second trust deed note. That at said time the deceased, John Granrud, requested plaintiffs to refinance for the purpose of enabling him to purchase a trailer park. That plaintiffs did refinance by obtaining a new first trust deed loan of $25,000 at a cost of $800.90. That they paid off the note in favor of David O. Parks and Lenabel Parks, and applied the balance of the new loan in the amount of $13,114.20 in part payment of the second trust deed note. That on October 27, 1954, plaintiffs executed a note in favor of John Granrud for the then balance of the loan in the amount of $9,227 payable in monthly installments and secured by a second trust deed. That the deceased subsequently used the part payment made on or about October 27, 1954, for the purchase of a trailer park.
The court further found that John Granrud died testate on March 4, 1956, and that at the time of his death was a resident of the County of Los Angeles; that he left a will dated January 23, 1956; that said will was duly admitted to probate in the Superior Court of the State of California, in and for the County of Los Angeles on April 9, 1956, and that Dorothy Black Fowler was named in said will as executrix, and that at all times since April 9, 1956, she has been and now is the executrix of the Estate of John Granrud, Deceased. Finally, the court found that the will of said deceased contained no provision for the cancellation of said note executed by the plaintiffs and that the balance due on March 4, 1956 was $6,425.
From the foregoing findings of fact, the court concluded: (1) That the action is barred by the Statute of Frauds of both the State of Nevada and the State of California unless removed from the operation thereof by estoppel or performance; (2) That in order to remove the bar of the Statute of Frauds the action must be founded in quasi-specific performance and to maintain such an action an heir or beneficiary under the will is an indispensable party; (3) That the oral agreement upon which the action is based is not of such nature as to estop the defendant-executrix from asserting the Statute of Frauds or to cause a court sitting in equity to enforce the oral agreement quasi-specifically; and (4) That the defendant is entitled to judgment against plaintiffs with costs.
Judgment was thereupon entered that plaintiffs take nothing and defendant have judgment for her costs. Thereafter, plaintiffs' motion to vacate the judgment and to enter a new and different judgment was denied.
The oral agreement to testamentarily cancel the indebtedness upon which plaintiffs predicate their cause of action was made in Nevada. Because, as a general rule, a will is and remains ambulatory during the lifetime of the testator, no breach of an agreement to make a testamentary provision, absent a repudiation, can or does occur until the death of the testator and the breach therefore occurs in the state of his demise, in this case, California. The testator's will was here admitted to probate and plaintiffs' action to enforce the oral agreement was here filed and pursued.
These facts raise the major and, as we have concluded, controlling problem presented in this review, which is a choice of law question as to whether the Statute of Frauds of California or that of Nevada is applicable in determining the enforceability of the oral agreement to make a testamentary disposition.
The pertinent provisions of the Statute of Frauds of California are stated both in the Civil Code 1 and the Code of Civil Procedure. 2 Indisputably, the instant oral agreement is within these provisions of the California Statute of Frauds and plaintiffs so concede. See: Hagan v. McNary, 70 Cal. 141, 143, 148 P. 937, L.R.A.1915E, 562; Loper v. Flynn, 72 Cal.App.2d 619, 621, 165 P.2d 256; Bogan v. Wiley, 72 Cal.App.2d 533, 536, 164 P.2d 912; Burke v. Bank of America, etc., Ass'n, 34 Cal.App.2d 594, 597, 94 P.2d 58.
If the California Statute of Frauds is here applicable, the instant agreement is not enforceable in an action in our courts in the absence of an estoppel to assert a bar of the Statute and appellants so concede.
No definitive authority of the courts of this State as to the applicability of the California Statute of Frauds raised as a defense in an action pending in our courts on a contract entered into in another state has been cited by either counsel nor discovered in our independent research. In determining a question without the guidance of precedent of our own courts, it is our duty to adopt a rule which in our opinion agrees with the ascertainable public policy of this State. However, we are mindful that in so doing we must not be blind to the comity between sovereign states in passing upon the enforceability of contracts made and obligations incurred in accordance with the laws of a sister state and sought to be enforced in California. See: Blythe v. Ayres, 96 Cal. 532, 561, 31 P. 915, 16 L.R.A. 40. Comity, as distinguished from obligations imposed by the full faith and credit clause of the Federal Constitution (U.S.Const., Art. 4, § 1) does not compel us to follow a statute of a sister state in direct conflict with a statute on the same subject matter of this State (Hudson v. Von Hamm, 85 Cal.App. 323, 326, 259 P. 374), or to follow foreign laws which are contrary to the settled public policy of the forum. Biewend v. Biewend, 17 Cal.2d 108, 113, 109 P.2d 701, 132 A.L.R. 1264.
Statutes requiring contracts to be in writing or evidenced by a written memorandum thereof do not deprive the parties of the right to contract with respect to matters therein involved, but merely regulate the formalities of the contract necessary to render it enforceable and the constitutionality of such statutes is incontestable. For although the Legislature may not interfere with the absolute individual right to contract, except on the ground of public policy, it may regulate the manner in which that right shall be exercised, and, in so doing, require that contracts or certain classes of contracts shall be in writing. Peterson v. Panovitz, 62 N.D. 328, 243 N.W. 798, 801, 84 A.L.R. 1290; Adinolfi v. Hazlett, 242 Pa. 25, 88 A. 869, 871, 48 L.R.A.,N.S., 855; Gideon-Anderson Lumber Co. v. Hayes, 348 Mo. 1085, 156 S.W.2d 898, 899-900; Baker v. Gillan, 68 Neb. 368, 94 N.W. 615, 616; Ross v. Kaufman, 48 Wash. 678, 94 P. 641.
We find that the only unanimity of opinion among text writers relating to the Statute of Frauds from a standpoint of conflict of laws is that the adjudicated cases on the subject are in confusion and conflict. 11 Cal.Jur.2d p. 195; 11 Am.Jur. p. 514; 105 A.L.R. 652; 1 Witkin, California Procedure, p. 506; Lorenzen, The Statute of Frauds and the Conflict of Laws, 32 Yale L.J. pp. 311 and 314; Comment, The Statute of Frauds in the Conflict of Laws, 43 Cal.L.Rev. p. 295.
The four principal and differing theories or views in the cases involving the choice of laws between the law of the forum and foreign law in respect of questions arising in connection with the Statute of Frauds are: (1) The view originally resting upon the authority of Leroux v. Brown (1852), 12 C.B. 801 which makes the question as to the governing law turn upon the point whether the particular provision in question is drawn in a procedural form, such as 'no action shall be brought', or in a substantive form which declares the contract shall be 'invalid' or 'void'; (2) The view which, for purposes of conflict of laws, rejects the distinction based upon procedural or substantive form, and treats the provisions of the Statute, regardless of its form, as...
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