Day v. Greene

• Decision Date: 11 April 1963
• Citation: 29 Cal.Rptr. 785,94 A.L.R.2d 802,59 Cal.2d 404,380 P.2d 385
• Court: California Supreme Court
• Parties: , 380 P.2d 385, 94 A.L.R.2d 802 Eva Greene DAY, Plaintiff and Respondent, v. Frank Townsend GREENE et al., Defendants and Appellants. L. A. 26447.

Page 785

29 Cal.Rptr. 785

59 Cal.2d 404, 380 P.2d 385, 94 A.L.R.2d 802

Eva Greene DAY, Plaintiff and Respondent, v. Frank Townsend GREENE et al., Defendants and Appellants.

L. A. 26447.

Supreme Court of California, In Bank.

April 11, 1963.

Rehearing Denied May 8, 1963.

Leo B. Ward, in pro. per., Franklin W. Peck, Chapman, Frazer, Lindley & Young, John S. Chapman, William Elliott Viney, William P. Camusi, Los Angeles, John B. Tittmann, Albuquerque, N. M., Keith Fl Quail, Prescott, Ariz., James V. Robins, Gibson, Dunn & Crutcher, Norman S. Sterry and Frederic H. Sturdy, Los Angeles, for defendants and appellants.

Lillick, Geary, McHose, Roethke & Myers, John C. McHose, Gordon K. Wright, Los Angeles, Bryant & Moltzen, W. Byron Bryant, San Francisco, Harry C. Mabry, Dryden, Harrington, Horgan & Swartz and Vernon G. Foster, Los Angeles, for plaintiff and respondent.

GIBSON, Chief Justice.

Eva Greene Day brought this action on December 27, 1957, to impress a constructive trust upon one- seventh of the residual estate of her stepmother, Mary Greene, claiming that Mary had entered into an oral contract with Colonel Greene (Mary's husband and Eva's father) by which Mary agreed to leave her estate equally to Eva and the six children of Mary and Colonel Greene. The defendants include, among others, Mary's six children and the executors of her estate. Judgment was entered in favor of plaintiff, and all defendants, except one of the children, have appealed.

It is contended that the trial court's finding that there was an agreement to make a will as alleged is not supported by the evidence, that the alleged agreement is unenforceable by reason of the statute of frauds, that the action in barred by the statute of limitations, and that the evidence establishes as a matter of law the defense of accord and satisfaction.

Eva's parents, Colonel Greene and Ella Roberts Moson Greene, were married in Arizona in 1884. The only other child of that marriage died at an early age. Ella had two children by a prior marriage, Virginia and Frank Moson. Eva was born January 6, 1890. At the time of Ella's marriage to Colonel Greene she had substantial property of her own. The evidence does not show that Colonel Greene had any property of value at the time he married Ella. In 1894 several thousand cattle and horses bearing the 'OR' brand were recorded in her name as her separate property. The cattle business was continued during the marriage, and funds from the sale of cattle were used to acquire Mexican mining property. Ella died on December 5, 1899, a resident of the Territory of Arizona. Her estate was not probated, and Colonel Greene took possession of all her assets. Under the intestate succession laws of the territory each of Ella's three children was entitled to two-ninths of her separate property and one-sixth of her community property.

On February 16, 1901, Colonel Greene married Mary Proctor. It does not appear that she owned any property at the time of the marriage. On April 21, 1901, Colonel Greene organized the Greene Cattle Company and took only one qualifying share of stock. A majority of the shares was placed in Mary's name, Virginia Moson received stock of a par value of $20,000, and there is some indication that Frank Moson received an undetermined amount of stock. Colonel Greene transferred to the corporation large properties in Arizona and all cattle branded 'OR.' When Eva was married in 1908 he gave her a stock certificate of $50,000 par value in the Greene Cattle Company as a wedding present.

With money from his mining operations Colonel Greene purchased the Cananea Ranch in Mexico, consisting of about 600,000 acres. Title to the ranch was placed in Mary's name, and, according to statements made by her, this was done because Colonel Greene engaged in many speculative ventures and wanted the ranch in her name to protect it against the claims of creditors in the event of financial difficulties. On May 10, 1901, Colonel Greene organized the Cananea Cattle Company, S.A., taking 98 per cent of the stock in his own name. He transferred his shares to Mary, who transferred some of them to her children. It is not clear whether the Cananea Cattle Company, which grazed cattle on the Cananea Ranch, ever obtained title to it. In general the transactions among Colonel Greene, Mary, and the several corporations formed by him are unclear, but it appears that with few exceptions all the properties other than the mining interests were placed directly or indirectly in Mary's name. Nearly all the mining property was lost in the 1907 economic crash.

Colonel Greene died on August 5, 1911, leaving a holographic will dated November 26, 1910, which designated Mary as executrix and sole beneficiary and did not mention Eva or any of his other children. He and Eva were devoted to each other, and when the will was read she expressed surprise that she was not mentioned in it. According to Eva's testimony, Mary said, 'Your father and I discussed that and we agreed that he would leave everything to me in my lifetime and that I would take care of your upon my death, that you would share with my children, share and share alike.' Following Colonel Greene's death Eva lived with Mary and her children in the family home in Los Angeles for approximately four years. Eva testified that she had full trust and confidence in Mary and relied on her to keep the agreement made with Colonel Greene.

Colonel Greene's will was probated in Los Angeles County. It contained a declaration that 'all of my property consists of mining property in Mexico.' The only assets in the estate of any value were mining interests appraised at $13,000 and a promissory note appraised at $200, whereas there were creditors' claims amounting to approximately $150,000. None of the stock in the cattle company or the cattle ranches or other property placed by Colonel Greene in Mary's name was accounted for in his estate.

One of the Arizona ranches Colonel Greene had transferred to the Greene Cattle Company was known as the 'Hereford Ranch.' This ranch, together with cattle on it, was sold in 1912 for about $175,000. At that time Virginia Moson received $46,250 and Frank Moson, $28,750. In return they executed releases of all claims against Mary and the estate of Colonel Greene, and Virginia also transferred to Mary her stock in the Greene Cattle Company having a par value of $20,000. Eva received the company's note for $75,000, and she transferred to Mary her $50,000 stock certificate in the company. She did not sign a release. As to the purpose of this transaction Mary made various statements, including one to the effect that her intent was to carry out a suggestion of Colonel Greene that the Hereford Ranch be turned over to Ella's children in order to settle claims they had made because of the property their mother had owned.

Mary and her children retained the properties obtained from Colonel Greene and received the income as owners or as officers and directors of family corporations. She died testate at Cananea, Mexico, on November 27, 1955. During Mary's lifetime Eva did not assert any rights as heir of her mother or as pretermitted heir of her father.

Mary's will, executed in 1954, provided for legacies in excess of $100,000, including a legacy of $2,500 to Eva, and disposed of one-sixth of the residuary estate for the benefit of each of her six children, including in some instances provision for members of the child's family. She left property in Arizona, California, and Mexico. It is alleged in the complaint that her estate amounts to eight million dollars. This allegation is controverted by defendants, and the only evidence we find in the record relating to the subject shows that the Arizona estate alone contains assets appraised at approximately two million dollars.

The findings may be summarized as follows: Colonel Greene and Mary orally agreed that he would leave everything to Mary in her lifetime and that upon Mary's death she would provide for Eva in such a manner that Eva would share with Mary's children share and share alike. In reliance on this agreement Colonel Greene 'seriously and unalterably' changed his position by abstaining from making inter vivos gifts or testamentary disposition to Eva and by leaving his entire estate 'before and at his death' to Mary. Mary accepted and retained the benefits of the agreement and thereafter breached it and unjustly enriched her children by disposing of her residuary...