Brown v. Superior Court in and for Los Angeles County

• Decision Date: 28 December 1949
• Citation: 212 P.2d 878,34 Cal.2d 559
• Court: California Supreme Court
• Parties: . L. A. 21008. Supreme Court of California, in Bank

Page 878

212 P.2d 878

34 Cal.2d 559

BROWN v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

L. A. 21008.

Supreme Court of California, in Bank.

Dec. 28, 1949.

Edmond Gattone, Los Angeles, for appellant.

George I. Devor, Los Angeles, Irving N. Walker, Los Angeles, Mark Mullin, Los Angeles, of counsel, for respondent.

GIBSON, Chief Justice.

Petitioner secured an order from the Superior Court of Los Angeles County for the examination of Abigail Simpson, E. Ross Simpson and William Crandall in a proceeding to perpetuate testimony pursuant to sections 2083-2089 of the Code of Civil Procedure. The witnesses refused to answer certain questions, and the court denied petitioner's request for an order directing them to answer on the ground that petitioner had failed to show that he had a cause of action. This proceeding in mandate was then brought to compel the court to order the witnesses to testify.

Insofar as the propriety of the use of the writ for this purpose is concerned, it is well settled that there is a clear duty on the trial court to enforce the statutory right to a deposition and compel a witness to testify. McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 392-394, 159 P.2d 944; Demaree v. Superior Court, 10 Cal.2d 99, 73 P.2d 605; Christ v. Superior Court, 211 Cal. 593, 296 P. 612; San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 31, 99 P. 359, 17 Ann.Cas. 933. In some cases a writ has been used to test the right to take a deposition without discussion of the adequacy of another remedy, Hays v. Superior Court, 16 Cal.2d 260, 105 P.2d 975; Demaree v. Superior Court, 10 Cal.2d 99, 73 P.2d 605; and in McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 159 P.2d 944, it was impliedly held that the order was not immediately appealable, and the remedy of appeal from a final judgment was held inadequate. See also Union Oil Co. v. Reconstruction Oil Co., 4 Cal.2d 541, 545, 51 P.2d 81; Collins v. Corse, 8 Cal.2d 123, 124, 64 P.2d 137. In other cases it was assumed for the purposes of the decision that the order was immediately appealable, but the remedy if available was deemed inadequate, Christ v. Superior Court, 211 Cal. 593, 296 P. 612; San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 31, 39, 99 P. 359, 17 Ann.Cas. 933, and in still others the court used certiorari to review an order directing the taking of a deposition, thereby in effect holding that the order was not appealable. Kutner-Goldstein Co. v. Superior Court, 212 Cal. 341, 298 P. 1001; Pollak v. Superior Court, 197 Cal. 389, 240 P. 1006; Cailleaud v. Superior Court, 108 Cal.App. 752, 292 P. 145; Irving v. Superior Court, 79 Cal.App. 361, 249 P. 236.

Three situations are presented by the above cases: (1) where a party seeks to perpetuate testimony under section 2083 et seq. of the Code of Civil Procedure prior to the bringing of an action; (2) where the deposition is sought undre section 2021 after commencement of the action and pending trial; and (3) where the deposition is sought under section 2021 pending appeal and retrial upon a possible reversal of the judgment. We see no good reason for differentiating between these three situations insofar as appealability is concerned, or for departing from the cases which hold that the order is not appealable. Although such orders are, of course, reviewable by appeal from the final judgment, a party should not be required to proceed to trial without the benefits afforded by a deposition to which he is entitled, and it is well settled that under such circumstances the burden, expense and delay involved in a trial render an appeal from an eventual judgment an inadequate remedy.

In his application for the order of examination petitioner alleged that he expects to be a party to an action against Abigail and her present husband, E. Ross Simpson, to determine his rights under a written contract to make mutual wills, entered into by Abigail and her deceased former husband, George Brown. By the terms of the contract George and Abigail agreed that they would execute mutual wills, each devising his or her entire estate to the other, and that 'the survivor shall bequeath and devise the entire combined estates,' one-half to designated kindred of George, of whom petitioner is one, and one-half to designated kindred of Abigail. Mutual wills were executed pursuant to the contract. Thereafter, George died, his will was probated, and his entire estate distributed to his widow. It was further alleged that she later married E. Ross Simpson and transferred substantially all her property, including that received from her former husband, to Simpson without consideration and with the intent to evade her obligations under the contract and to defraud its beneficiaries, namely, the kindred of George and herself.

The will of George Brown stated that it was made in consideration of a mutual will by Abigail and 'in pursuance to an agreement between myself and my said wife * * * for the making of these mutual wills on the part of each of us.' It then provided that his property should go to Abigail, if she should survive him, otherwise his entire estate, including any and all property or estate received from Abigail, should go one-half to his kindred and one-half to her kindred.

There is no express statutory requirement that the applicant for an order to perpetuate testimony must show that he has an actual or potential cause of action and it is not entirely clear from the cases whether such a showing is essential. See Demaree v. Superior Court, 10 Cal.2d 99, 103-104, 73 P.2d 605; Kutner-Goldstein Co. v. Superior Court, 212 Cal. 341, 345, 298 P. 1001; Jonas v. Superior Court, 138 Cal.App. 677, 678-679, 32 P.2d 1114; Cailleaud v. Superior Court, 108 Cal.App. 752, 754, 292 P. 145. However, we need not determine whether there is such a requirement because we are of the opinion that, as contended by petitioner, he has stated facts which, if true, would entitle him to some kind of relief.

In his application for the order of examination petitioner asserted that his contemplated action was one to determine his rights under the contract and that he expected to seek legal and equitable relief for the purpose of protecting those rights. It seems clear that he would at least be entitled to bring an action to obtain a declaration of his rights under the alleged agreement. Code Civ.Proc. § 1060. He may also be entitled to other relief. It is well settled that a person may contract to make a particular disposition of his property by will, and in case of a breach the promisee has several available remedies. He may bring an action at law for damages. See O'Brien v. O'Brien, 197 Cal. 577, 588-589, 241 P. 861; Roy v. Pos, 183 Cal. 359, 366-367, 191 P. 542; Morrison v. Land, 169 Cal. 580, 590, 147 P. 259; 4 Page on Wills (Lifetime Ed.) §§ 1733, 1744. Equitable relief in the form if 'quasi specific performance' of the contract may be obtained where the remedy at law is inadequate and the promisor has failed to make the promised disposition in his will. Jones v. Clark, 19 Cal.2d 156, 119 P.2d 731; Bank of California v. Superior Court, 16 Cal.2d 516, 524, 106 P.2d 879; Wolf v. Donahue, 206 Cal. 213, 273 P. 547. It has also been recognized that the promisees of such a contract need not wait until the death of the promisor but may seek equitable relief against inter-vivos conveyances made by him in fraud of their rights. Osborn v. Hoyt, 181 Cal. 336, 184 P. 854; Rogers v. Schlotterback, 167 Cal. 35, 48, 138 P. 728; see note, 108 A.L.R. 867; 4 Page on Wills (Lifetime Ed.) §§ 1727, 1729, 1744.

The right to enforce such a contract to make a particular disposition of property on death is not restricted to the promisee. Where two parties agree to make mutual wills, each promising to dispose of his property to the other or, if the other be dead, to certain third persons, and one of the parties performs by leaving his property to the other, the intended devisees and legatees are entitled to enforce their rights as beneficiaries under the agreement. The contracting party who survives becomes estopped from making any other or different disposition of the property, and his obligations under the agreement become absolutely irrevocable and enforceable against him, at least where he avails himself of the provisions of decedent's will in his favor and accepts substantial benefits thereunder. Notten v. Mensing, 3 Cal.2d 469, 473, 45 P.2d 198; Sonnicksen v. Sonnicksen, 45 Cal.App.2d 46, 52-55, 113 P.2d 495; see Rolls v. Allen, 204 Cal. 604, 609, 269 P. 450.

It is argued by respondent that petitioner has not shown an actual or potential cause of action because he has not alleged that the contract between George and Abigail contained an express agreement not to revoke the mutual wills. It is not necessary, however, that there be an express agreement to this effect in order to enforce a contractual obligation to leave property to designated persons at death. In every contract there is an implied covenant of good faith and fair dealing that neither party will do anything which injures the right of the other to receive the benefits of the agreement. Universal Sales Corp. v. California Press Mfg. Co., 20 Cal.2d 751, 771, 128 P.2d 665; Nelson v. Abraham, 29 Cal.2d 745, 750-751, 177 P.2d 931. Where the parties contract to make a particular disposition of property by will, the agreement necessarily includes a promise not to breach the contract by revoking the will and failing to dispose of the property as agreed. The rights of the parties depend upon the contract, and the revocation of the will or other breach of the contract does not prevent the intended devisee or legatee from enforcing the contractual obligations. See In re Estate of Rolls, 193 Cal. 594, 601-602, 226 P. 608; Jones v. Clark, 19 Cal.2d 156, 119 P.2d 731; Bank of California v. Superior Court, 16 Cal.2d 516, 524, 106 P.2d 879; Wolf v. Donahue, 206 Cal. 213, ...