Carey v. Powell

• Decision Date: 17 March 1949
• Docket Number: 30705.
• Citation: 204 P.2d 193,32 Wn.2d 761
• Parties: CAREY et ux. v. POWELL et al.
• Court: Washington Supreme Court

204 P.2d 193

32 Wn.2d 761

CAREY et ux. v. POWELL et al.

No. 30705.

Supreme Court of Washington

March 17, 1949

Department 1

Suit by Silas M. Carey and Lela Carey, his wife against George Powell, executor of the last will of Florence Ryan, deceased and George Powell and Noma Powell, his wife, for specific performance of contract, wherein defendants filed a cross-complaint. From a judgment for the plaintiffs defendants appeal.

Affirmed.

Appeal from Superior Court, Lewis County; John E. Murray, judge.

John M Reid, of Marion, C. E. Ellis, of Spokane, and J. D. Searle, of Chehalis, for appellants.

J. H. Jahnke, of Centralia, for respondents.

JEFFERS Chief Justice.

This action was instituted by Silas M. Carey and Lela Carey, his wife, against George Powell, executor of the last will and testament of Florence Ryan, deceased, and George Powell and Noma Powell, his wife, for the purpose of obtaining a decree of specific performance of a certain contract made and entered into April 19, 1944, by and between Florence Ryan, a widow, as first party, and Lela M. Carey and Silas M. Carey, second parties.

George Powell appeared and filed an answer and cross-complaint, as executor of the estate of Florence Ryan, deceased. George Powell and Noma Powell, his wife, also appeared, and in their individual capacities filed an answer and cross-complaint. The answers of George Powell, as executor, and of George Powell and wife deny generally the material allegations of the complaint, and especially deny that the contract hereinabove referred to, made and entered into between Florence Ryan and Lela M. Carey and Silas M. Carey, and the will of Florence Ryan, made and executed on the same day as the contract and in connection therewith, ever became effective or valid and binding instruments. Defendants set up several affirmative defenses, including the alleged defense of a failure of consideration for the contract, and that it was obtained by business duress and compulsion by the plaintiffs. The cross-complaint of the defendants, in which they asked that the property of Mrs. Ryan be set aside to them, is based upon a certain contract made and entered into between George Powell and Noma Powell, husband and wife, and Florence Ryan, on June 21, 1944, and the claimed last will and testament of Florence Ryan, made and executed by her on the same day and in connection with the contract. These contracts and wills will be set out in our general statement of the facts.

Plaintiffs called some ten witnesses to support their respective contentions. Defendants being residents of Illinois, and that being the state where Mrs. Ryan died, defendants obtained an order for, and took, the depositions of some twelve witnesses in the state of Illinois. These depositions were published, and read and considered by the court in its determination of this case, except certain of the interrogatories and answers therein contained, which the court, in its memorandum decision, stated that it had refused to consider.

The events leading up to this lawsuit may be stated generally as follows: Plaintiff Lela Carey is a resident of the state of Washington, and is the daughter and only heir of Florence Ryan, deceased. Mrs. Ryan had lived in Illinois for many years, and in December, 1943, she was seventy-six years of age and in failing health. At this time Mrs. Ryan wrote to her daughter, suggesting that she come to Illinois, and that she, Mrs. Ryan, would return with Mrs. Carey to Washington. On or about January 5, 1944, plaintiffs went to Marion, Illinois, as requested, and found Mrs. Ryan in failing health. At this time Mrs. Ryan owned five houses, some household goods, two thousand dollars in savings bonds, one hundred dollars in a checking account, and some thirteen thousand dollars in cash apparently hidden in and about the house. Soon after Mrs. Carey arrived in Illinois, plans were made for her mother to return with Mrs. Carey and her husband to Washington. Mrs. Ryan deeded to her daughter, Mrs. Carey, the five houses, and they shortly thereafter sold for three thousand dollars. The household goods and furniture were sold by and with the assistance of one Aaron Ice, and the money received was delivered to Florence Ryan, who subsequently turned it over to Mrs. Carey. The postal savings bonds were sent in for payment, and the cash in and about the house was turned over by Florence Ryan to Mrs. Carey. All of this money was taken to the bank, and cashier's checks were obtained therefor as follows: One for $13,219.00, made payable to S. M. Carey and Lela Carey; one for $1,121.52, payable to S. M. or Lela Carey; and one for $3,000.00, payable to S. M. or Lela Carey.

Plaintiffs and Mrs. Ryan thereafter proceeded by train to plaintiffs' home in Centralia, arriving on or about February 8, 1944. There is ample evidence by disinterested witnesses that thereafter and during the time that Florence Ryan lived with her daughter she was given the best of care. For a few months Mrs. Ryan seemed to be settled and happy in her new home, but her daughter, believing that she would be more contented in a home of her own, bought her a house in Centralia, and provided some furniture and equipment for it.

On April 19, 1944, Florence Ryan and Mr. and Mrs. Carey went to the law office of C. D. Cunningham, in Centralia, Washington, and after consultation with him the will and contract upon which plaintiffs base their action were prepared and executed. The contract provides as follows:

'This Agreement made and entered into this 19th day of April, 1944, between Florence Ryan, a widow, first party, and Silas M. Carey and Lela M. Carey, his wife, second parties,

'Witnesseth: That whereas first party has this day made and executed her Last Will and Testament bequeathing unto Lela M. Carey all of her estate of which she may die seized, except One ($1.00) Dollar, bequeathed to Silas M. Carey,

'Now Therefore, in consideration of One ($1.00) Dollar and other considerations, it is understood and agreed that Lela M. Carey shall look after the welfare of Florence Ryan in the event she should need such care and in the event that Lela M. Carey should pre-decease Florence Ryan, then Silas M. Carey will look after and care for the said Florence Ryan, should she need such care.

'In Witness Whereof the parties hereto have signed this agreement in duplicate this 19th day of April, 1944.

'(Sd.) Florence Ryan

'First Party

'(Sd.) Lela M. Carey

'Silas M. Carey

'Second Parties'

The will of Florence Ryan, made at the same time and in connection with the contract, also provides:

'I, Florence Ryan, of the City of Centralia, Lewis County, Washington, of legal age, and being of sound and disposing mind and memory and not acting under duress, fruad or undue influence of any person or persons whomsoever, do make, publish and declare this to be my Last Will and Testament in the manner following, that is to say:

'First: I direct that my Executrix hereinafter named, as soon as possible after my death, pay all my just debts.

'Second: I give and bequeath unto my son-in-law, Silas M. Carey, the sum of One ($1.00) Dollar.

'Third: All the rest and residue of my estate whether real, personal or mixed, of whatsoever nature and kind and wheresoever found, I give and bequeath unto my beloved daughter, Lela M. Carey, provided, however, that in the event my daughter, Lela M. Carey, predeceases me and the said Silas M. Carey, then all the rest and residue of my estate I give and bequeath unto my son-in-law, Silas M. Carey. And it is my desire and my intention that my estate be managed and settled without the intervention of the superior court in its jurisdiction of matters probate, and letters testamentary shall not be required to be taken out except to admit my Will to probate.

'Fourth: I hereby nominate and appoint my beloved daughter, Lela M. Carey, the Executrix of this my Last Will and Testament, provided, however, that in the event my daughter, Lela M. Carey, pre-deceases me and the said Silas M. Carey, then I nominate and appoint my son-in-law, Silas M. Carey, the Executor of this my Last Will and Testament, and she shall not be required to give bond for the faithful performance of this trust. And I direct that she take charge of all my estate, manage, control and settle the same without the intervention of the Court having probate jurisdiction.

'Lastly: I hereby revoke all former Wills made by me.

'In Witness Whereof, I, Florence Ryan, have to this, my Last Will and Testament, subscribed my name and affixed by seal in the City of Centralia, Lewis County, Washington, this nineteenth day of April, A. D. Nineteen Hundred and Forty-four.

'(Sd.) Florence Ryan (Seal)'

Sometime after the execution of the above instruments, Mrs. Ryan indicated a desire to return to Illinois for a visit. She seemed to especially want to be there over Memorial Day. Plaintiffs helped her arrange the transportation, and took her to the train. Shortly after returning to Illinois, Mrs. Ryan indicated a desire to remain there. She thereupon purchased a small home and agreed to pay for it in installments. Mrs. Ryan arranged for the defendants, George Powell and Noma Powell, to live in the house with her and look after her, and on June 21, 1944, Mrs. Ryan and George Powell and Noma Powell, his wife, entered into the contract hereinBefore referred to, and as a part thereof executed a will. The contract provides:

'Whereas, George Powell and Noma Powell, husband and wife, for a valuable consideration in hand paid, and the further consideration of the execution by Florence Ryan of her Last Will and Testament, duly executed according to law and naming the said George Powell and Noma Powell as the devisees and legatees of all her property, real, personal,

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