Casady v. Scott

Citation237 P. 415,40 Idaho 137
PartiesW. H. CASADY and FRANK L. MOORE, Appellants, v. WARREN F. SCOTT and ANNA GERTRUDE SCOTT, His Wife (nee ANNA GERTRUDE RANDOLPH), A. N. DYER and A. S. HARDY, Executors of the Last Will and Testament of WALLACE SCOTT, Deceased, REBECCA SCOTT, RALPH SCOTT, JAMES SCOTT and CALISTA HUXTABLE, Respondents
Decision Date15 December 1924
CourtUnited States State Supreme Court of Idaho

CONTRACT TO DEVISE OR BEQUEATH PROPERTY-WHEN ENFORCEABLE AGAINST ESTATE OF TESTATOR-ASSIGNMENT OF INTEREST IN CONTRACT-RIGHT OF ASSIGNOR-NOT CLAIM AGAINST ESTATE OF TESTATOR-ASSIGNMENT OF POSSIBILITIES AND EXPECTANCIES-WHEN EQUITY WILL ENFORCE TRANSFER-GENERAL DEMURRER-DENIED WHEN FACTS PLEADED SHOW SOME RIGHT OF RECOVERY.

1. A valid contract may be made, for a valuable consideration, to devise or bequeath property by a last will, in a certain specified way and in a specific amount, and in the event of a breach of such contract the promisee injured by such breach has an action at law to recover the damages caused by such breach of the promisor.

2. In some cases the promisee may be compelled to resort to equity for a recovery, but this may be done only where the circumstances are such that an action at law would be inadequate and the case is one within the well-settled principles relative to the proper exercise of equitable jurisdiction.

3. Where a father agreed, for a valuable consideration, to make a bequest or devise to his foster-son of $175,000, and contemporaneous with such agreement, the son attempted to assign a one-half interest in this contract, or in the expectancy so promised, to his attorneys in consideration for their services rendered him in procuring the same, and thereafter the father and son mutually agreed that their contract should be abrogated and a new one was made between them whereby the son was to receive, upon the death of the father, a smaller bequest and the immediate conveyance to him of certain real estate, held, that the son's assignees took no interest, by reason of the assignment, that would enable them to maintain an action against the executors of the father's estate after his death for damages because of the abrogation of such agreement between the father and son, since the agreement related to an expectancy and they were not in privity with the promisor.

4. One who promises to leave at his death to another a specific bequest or devise out of his estate, although such promise is for a valuable consideration, does not thereby convey to or vest in such promisee an interest in his estate that he may convey to a third party not in privity with the promisor upon which such third party can maintain an action against the promisor's estate after his death, since nothing vested by such transaction and no cause of action could arise upon such promise until after its breach, which could not occur until the death of the promisor.

5. A claim arising by reason of an attempted assignment or transfer of a half interest in and to an expectancy growing out of a promise to the assignor that a bequest or devise will be left to him upon the death of the promisor does not give the assignee, not in privity with the promisor, a claim against his estate, within the meaning of that term as it is used in C. S., secs. 7581, 7582 and 7585, since it is not a right arising out of an assignment of a thing in action, and the claimant is not required to present the same to the administrator or executor of the deceased promisor, his right being one enforceable only in equity against the interest of the promisee after the expectancy has vested.

6. Where one, for a valuable consideration, agreed to devise or bequeath to his son a specific part of his property but before his death he and the son mutually agreed to cancel the agreement, and the promisor, instead of leaving him the amount first agreed upon, bequeathed a lesser sum, an assignee of the interest first agreed to be left may, in equity, impress that part of the estate with a proportionate interest in that which was actually left, after the same has vested in the promisee.

7. By the ancient common law things in action, expectancies possibilities and the like were not assignable; an assignee thereof acquired no right which was recognized by the courts of law, such assignment being regarded as against public policy, but courts of chancery rejected this rule and held that one might bind himself to do anything not impossible, and that upon doing so he would be required to perform his obligation, if it were not illegal.

8. Equity has always held that the assignment of a thing in action for a valuable consideration, should be enforced, and has given effect to assignments of every kind of future and contingent interests or possibilities in real or personal property, when made upon a valuable consideration, and as soon as the assigned expectancy or possibility has fallen into possession the assignment will be enforced.

9. In equity the assignee of an ordinary thing in action-a debt or demand arising out of a contract-acquires at once an equitable ownership therein, while the assignee of an expectancy, possibility or contingency acquires at once a present equitable right over the future proceeds of such expectancy as soon as they come into possession by transformation of the possibility or contingency into an interest in possession. The assignment creates an equitable ownership or property in abeyance which changes into an absolute property upon the happening of the future event.

10. An assignment of a thing in action at common law permitted the assignee to sue in the name of the assignor and to have entire control of the action and the judgment, and treated him as the only person having an immediate interest in the recovery, and the assignee, having a complete remedy, the necessity of a resort to equity ceased.

11. The reformed procedure now requires that whenever a thing in action is assigned the assignee must sue in his own name, or as stated in the code, every action must be prosecuted in the name of the real party in interest, and this includes all things in action which survive and pass to the personal representative of a decedent creditor as assets or continue as liabilities against the representatives of a decedent debtor

12. A legal assignment of a mere naked possibility or expectancy not coupled with an interest, has never been recognized, but the assignment of a future contingent expected interest and possibilities are recognized and upheld in equity.

13. Possibilities or expectancies, although not coupled with a present interest, are assignable in equity for a valuable consideration; and equity will enforce the assignment when the possibility or expectancy has changed into a vested interest or possession.

14. There being but one form of civil action in this state, a plaintiff may recover if his complaint states any cause of action entitling him to relief at law or in equity. It is not essential that a complaint state a cause of action for the relief which plaintiff seeks, provided the facts show some right of recovery, and a party cannot be thrown out of court merely because he may have misconceived the form of relief to which he is entitled, although generally, where the complaint shows a right of recovery, the pleading should be amended to conform to the cause of action as it actually exists.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Ed. L. Bryan, Presiding Judge.

Action to impress a bequest or devise with equitable lien. Judgment sustaining demurrers to plaintiffs' third amended complaint and dismissing their action. Reversed and remanded, with instructions.

Judgment reversed, with instructions.

W. H. Casady and Frank L. Moore, for Appellants.

The statute does not prescribe any particular form in which claims against the estate of a deceased person shall be stated, nor contemplate that the technical rules of pleading shall be observed in presenting them. It is not essential that a claim should recite the facts upon which it is predicated with the preciseness and particularity of a complaint, although it should sufficiently indicate the nature and amount of the demand to enable the representatives of the deceased and the judge of the probate court to act advisedly upon it. The facts may be stated in general terms and if the claim is rejected and action thereon is brought, it is enough if it appears that the suit is founded upon the same demand as that presented to the representatives of the deceased for allowance. (C. S., sec. 7582; Pollitz v. Wickersham, 150 Cal. 238, 88 P. 911; McGrath v. Carroll, 110 Cal. 79, 42 P. 466; Lichtenberg v. McGlynn, 105 Cal. 45, 38 P. 541; Smith v. Furnish, 70 Cal. 424, 12 P. 392; Western States Life Ins. Co. v. Lockwood, 166 Cal. 185, 135 P. 496; Doolittle v. McConnell, 178 Cal. 697, 174 P. 305; Sime v. Hunter, 50 Cal.App. 629, 195 P. 935; Goltra v. Penland, 42 Ore. 18, 69 P. 925; Tharp v. Jackson, 85 Ore. 78, 165 P. 585, 1173; Harwood v. Scott, 57 Mont. 83, 186 P. 693; Hamilton v. Blakeney, 65 Okla. 154, 165 P. 141; Parkes v. Burkhart, 101 Wash. 659, 172 P. 908; Crist v. Tallman, 190 Iowa 1248, 179 N.W. 522; White v. Deering, 38 Cal.App. 516, 179 P. 401; Elizalde v. Murphy, 163 Cal. 681, 126 P. 978; Thompson v. Koeller, 183 Cal. 476, 191 P. 927.)

An assignment of a part or portion of a debt or of property to be acquired in futuro, with notice to the obligor, will create in the assignee, a primary, equitable right, which will support an action against the obligor to recover the interest of the assignee. (Pomeroy's Eq. Jur., 4th ed., secs. 702, 1280, 1281 and 1283, and cases cited under these sections.)

James E. Babb, for Respondent James Scott.

"Every action must be prosecuted in the name of the real...

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    ...60, 152 P. 208; Carroll v. Hartford Fire Ins. Co., 28 Idaho 466, 154 P. 985; Gridley v. Ross, 37 Idaho 693, 217 P. 989; Casady v. Scott, 40 Idaho 137, 237 P. 415; Mosely v. Boyd, 167 Okl. 485, 30 P.2d 897; Reed v. Woodmen of the World, 94 Mont. 374, 22 P.2d 819.' Addy v. Stewart, 69 Idaho 3......
  • Addy v. Stewart
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    • Idaho Supreme Court
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    ... ... 152 P. 208; Carroll v. Hartford Fire Ins. Co., 28 ... Idaho 466, 154 P. 985; Gridley v. Ross, 37 Idaho ... 693, 217 P. 989; Casady v. Scott, 40 Idaho 137, 237 ... P. 415; Mosely v. Boyd, 167 Okl. 485, 30 P.2d 897; ... Reed v. Woodmen of the World, 94 Mont. 374, 22 P.2d ... ...
  • Gould v. Hill
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    • Idaho Supreme Court
    • September 23, 1926
    ...A plaintiff may recover if his complaint states any cause of action entitling him to relief at law or in equity. ( Casady v. Scott, 40 Idaho 137, 237 P. 415.) think that this complaint alleged every ultimate and material fact necessary to a complete determination of the cause. A demurrer an......
  • Butler v. Cortner
    • United States
    • Idaho Supreme Court
    • March 9, 1926
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