Brown v. Johanson

• Decision Date: 06 December 1920
• Docket Number: 9795.
• Citation: 194 P. 943,69 Colo. 400
• Parties: BROWN et al. v. JOHANSON et al.
• Court: Colorado Supreme Court

194 P. 943

69 Colo. 400

BROWN et al. v. JOHANSON et al.

No. 9795.

Supreme Court of Colorado, En Banc.

December 6, 1920

Rehearing Denied Jan. 10, 1921.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Action by Katherine Brown Johnson and others against J. Sideny Brown and others, as administrators of estate of Adele Overton Brown. Judgment for plaintiffs, and defendants bring error and apply for supersedeas.

Supersedeas denied, and judgment affirmed.

Allen J., dissenting.

Charles W. Waterman and William A. Jackson, both of Denver, for plaintiff in error Brown.

Cranston Pitkin & Moore, of Denver (George C. Otto, of Chicago, Ill of counsel), for plaintiffs in error Martin and Black.

William V. Hodges, L. R. Means, and James C. Rogers, all of Denver (George L. Hodges, of Denver, of counsel), for defendants in error.

Mr. and Mrs. J. S. Brown were married in 1883. Mr. Brown died January 15, 1913, and Mrs. Brown February 12, 1916. Plaintiffs in error, hereinafter referred to as defendants, are their children. Defendants in error, hereinafter referred to as plaintiffs, are the children of Mr. Brown by a former marriage.

November 5, 1910, Brown and his wife executed separate wills. These wills were drawn by the same lawyer (former United States Senator, Henry M. Teller, now deceased), written by the same stenographer (C. J. Northrup, who testified herein), and witnessed by the same persons (George H. and John W. Hawkins both of whom testified herein), There is no evidence that either of these wills contained any reference to the other, or to any oral agreement between the testators. Brown's will gave one half his estate, and a life interest in the family residence and furniture, to his wife; the other half to all his children, share and share alike. After his death this will was probated and distribution made according to its terms. On the death of Mrs. Brown her will could not be found; hence, by presumption of law, it was revoked in her lifetime, and she died intestate. Her estate is in course of administration in the county court. More than five-ninths of it remains in the hands of the administrators.

Plaintiffs contend: That these two wills were made in pursuance of an agreement between husband and wife for the amicable and equitable distribution of their property among all the children. That in so far as the attainment of that object was concerned Mrs. Brown's will was like that of her husband. Hence upon the death of both parents all their property would be equally divided among all the children. That the revocation of Mrs. Brown's will was a violation of the contract between herself and her husband, whereby her children profit to the detriment of plaintiffs. Plaintiffs therefore bring this action to enforce specific performance of the alleged contract, and impress and express trust upon the property owned by Mrs. Brown at the time of her death. The trial court so found and so ordered. To review that judgment defendants bring error, and the cause is now before us on their application for supersedeas.

BURKE, J. (after stating the facts as above).

No good purpose can be served by a detailed review of the evidence herein. Suffice it to say that, in our judgment, it warrants the finding of the trial court of the existence of the alleged oral agreement. Assuming now that such was the contract, the validity of which we are called upon to determine, was there such part performance thereof as to bring it within the terms of section 2664, R. S. 1908, and take it out of the prohibition of section 2662, R. S. 1908, against the sale of real estate, except by written contract expressing the consideration?

'The part performance which will withdraw such a contract from the ban of the statute must consist of an act of acts which it clearly appears that the performing party would not have done in the absence of the agreement or without a direct view to its performance.' Horton v. Stegmyer, 175 F. 756, 760, 99 C.C.A. 332, 336 (20 Ann.Cas. 1134).

There is nothing in this record to indicate that J. S. Brown wished, or had any reason to wish, to discriminate between his children by his first and second marriage. To presume that he executed, and left in existence for more than two years, and until his death, a will, which, if the agreement...