Daniels v. Aharonian

• Decision Date: 24 July 1939
• Docket Number: No. 1445.,1445.
• Citation: 7 A.2d 767
• Parties: DANIELS et al. v. AHARONIAN et al.
• Court: Rhode Island Supreme Court

7 A.2d 767

DANIELS et al.

v. AHARONIAN et al.

No. 1445.

Supreme Court of Rhode Island.

July 24, 1939.

Appeal from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Suit by Harry Daniels and another against Sarah Aharonian and others for specific performance of an alleged oral agreement by the parties' mother with their father to make a testamentary disposition of property devised to her by his will and for other relief. From a decree of dismissal complainants appeal.

Decree reversed, and decree directed in accordance with opinion.

Cunningham, Semonoff & Kelly and Judah C. Semonoff, all of Providence, for complainants.

Arabian & Barad and Aram A. Arabian, all of Providence, for respondents.

MOSS, Justice.

This cause is now before us on the appeal of the complainant Harry Daniels from a final decree of the superior court dismissing the bill of complaint. The bill was brought by him and Elizabeth Jundanian against Sarah Aharonian, individually and as executrix of the will of Mariam Danelian, alias Daniels, deceased, Pilazzon Danelian, alias Pilo Danieis, Ogaper Hogopian and Arshaloose Wahl.

These parties are the only son and all the daughters of Zakar Danelian, alias Daniels, deceased, and the abovementioned Mariam Danelian.

Among the main allegations of the bill are, in substance, that under and in accordance with an oral agreement between Zakar and Mariam Danelian he made a will on June 30, 1930, in which, except for one dollar given to each of their children, he gave to her all his real and personal property, amounting to about $20,000 net, and named the complainant as executor; that under and in accordance with the same agreement and in consideration of the making of this will by him, she on the same date made a will by which she gave five dollars to Arshaloose Wahl and all the rest of her estate and property to her other children as follows: To Harry Daniels 30%, to Pilazzon Danelian 25%, and to each of the other three daughters 15%, and named the complainant as executor; that she then had no property, except such interest as she may have had in a bank account, which had been created by the deposit of money belonging to her husband alone and which was payable to either or to the survivor of them; that Zakar Danelian died on December 11, 1931; and that under his above will, duly probated, his wife Mariam received all his net estate, then valued at about $20,000.

The other main allegations of the bill are, in substance, that on December 21,

1934, she conveyed to her daughter Pilo Daniels, without valuable consideration received therefor, the home real estate, which she had received under the will of Zakar Danelian; that on October 3, 1935, she executed a will giving all her property equally to all her children, except the complainant Harry Daniels, to whom she gave nothing, and naming Sarah Aharonian as executrix; that she died on October 17,

1935, leaving almost no property except what she had received, directly or indirectly, under the will of Zakar Danelian; and that the abovementioned conveyance to Pilo Daniels, the revocation of her will of June 30, 1930, and the making of her will of October 3, 1935, were all in violation of the abovementioned agreement with Zakar Danelian.

The main prayers for permanent relief in the bill are, in substance and effect, that the agreement above mentioned be specifically enforced; that a trust may be impressed upon all the property held, owned or possessed by Mariam Danelian in accordance with the wills of June 30, 1930; that a new trustee in place of Mariam Danelian, deceased, be appointed to take title to all the trust property and distribute the same in accordance with the order of the court; and that Pilo Daniels may be permanently enjoined from alienating or encumbering the real estate conveyed to her by her mother as above stated.

The respondents in their answer neither admit nor deny any of the allegations of the bill, above stated, and set up no matter of affirmative defense.

The cause was previously before us on the appeal of the complainants from a decree of the superior court dismissing the bill, upon a motion made by one of the respondents at the conclusion of the evidence for the complainants and based upon the contention that such evidence did not prove that the complainants were entitled to any of the relief prayed for. That appeal was sustained by us on the ground that the decree appealed from had been entered prematurely, because the respondents had not closed their case. The cause was therefore remanded to the superior court for completion of the evidence. Daniels v. Aharonian, R.I., 200 A. 957.

When the cause came on for further hearing in that court, Elizabeth Jundanian, one of the original complainants, was allowed by the court, at her request, to withdraw as a party complainant. Evidence was then introduced for the respondents and evidence in rebuttal for the complainant.

It is not in dispute between the contesting parties that the evidence, thus introduced, clearly proved all the above-summarized allegations of the bill of complaint except the allegations that the two wills of June 30, 1930, were made under and in accordance with an oral agreement between Zakar and Mariam Danelian, the making of her will being in consideration of the making of his; that the conveyance of the home property by Mariam Danelian to Pilo Daniels was without valuable consideration; and that this conveyance and the revocation by Mariam Danelian of her will of June 30, 1930, and the making of her will of October 3, 1935, were all in violation of the above agreement. These excepted allegations remained in dispute.

At the close of the final hearing, the justice before whom it had been held made a decision in which he applied the rule that in such a case, of an alleged contract to make a will, proof of the strongest character is required, and then found from the evidence that Mariam Danelian on June 30, 1930, "went through the form of agreeing with her husband" to make the will which she did make on that day. But he also found from the evidence that she objected to that will and only executed it as the result of coercion and undue influence by her husband; and that there was therefore not "a true consensual contract made between the parties."

On the ground that the complainant is a volunteer and parted with nothing under the alleged contract, the trial justice refused to apply the well-known rule that in order for one party to be in a position to rescind a contract such party must return the consideration received and put the other party in statu quo. He therefore held that the respondents were in a position to take advantage of the defence of undue influence and that this was decisive in their favor.

He also found that the property which Mariam Danelian conveyed to Pilo Daniels was conveyed in consideration of advances of money to a substantial amount which the grantee had made to the grantor, and that there was no testimony that the grantee knew or had any reasonable notice of the agreement. The conclusion of his decision was that the case did not "appeal to the equity or conscience of chancery in favor of the complainant" and that therefore a decree should be entered for the respondents. The decree appealed from, dismissing the bill, was entered accordingly.

Postponing, for later consideration in this opinion, the matter of coercion or undue influence, we are of the opinion that the finding of the trial justice to the effect that Mariam Danelian agreed with her husband to make the will which she did make on June 30, 1930, was amply supported by the evidence in this cause. The main gist of this agreement, on her part, was that if her husband would execute the will prepared for him by which he would give all his property to her, except one dollar to each of their children, she would execute the will prepared for her, by which she would give all her property as set forth in that will.

It is obvious from undisputed facts as to their respective property holdings and from the wills themselves that the wills were designed to cover only the contingency that he would predecease her, and that substantially all the property which was to be disposed of by her will would be property which she would receive under his will. The problems which have frequently arisen, where wills have thus been made by agreement between testators, have been generally discussed, often at great length, under the head of joint or mutual wills; and the law applicable thereto has become reasonably well settled.

One problem as to which there is no general concurrence among the authorities is whether an agreement between two persons for the disposition of their respective properties on their respective deaths can be inferred from the facts that the wills were made at or approximately at the same time and that they contained mutual provisions. But that problem is not before us, as there was ample, uncontradicted evidence, outside of the wills themselves and of the testimony of the complainant, that they were made by Zakar Danelian and his wife respectively under and in pursuance of an oral agreement between them.

One of the witnesses to the wills, apparently entirely disinterested, testified that after the wills, all prepared, had been read to Zakar Danelian and his wife and had been translated to her, the husband said to her: "I will give you all my possessions, provided you make a will making the following divisions of real and personal property"; and that he then stated to her the percentages to the different children as given in her will. This witness testified further that she made no objection to this, except that she said that she wanted their daughter Arshaloose, who was given only five dollars, to get a real share of the estate and not be left out; but that the husband said that this was his wish, that she be left out; and that the wife finally...