Erwin v. Mark

• Decision Date: 02 November 1937
• Docket Number: 7686.
• Citation: 73 P.2d 537,105 Mont. 361
• Parties: ERWIN v. MARK et al.
• Court: Montana Supreme Court

73 P.2d 537

105 Mont. 361

ERWIN v. MARK et al.

No. 7686.

Supreme Court of Montana

November 2, 1937

Appeal from Fifth Judicial District Court, Beaverhead County; Lyman H. Bennett, Judge.

Action by Myrl Erwin against Josephine Mark, Winnifred Emerick personally and as administratrix of the estate of Maggie Courtney, deceased, and others. From a judgment of dismissal and for costs in favor of defendants Emerick and others plaintiff appeals.

Reversed and remanded, with directions.

Howard A. Johnson and Clarence E. Wohl, both of Butte, for appellant.

Gilbert Gilbert & McFadden, of Dillon, for respondents.

ANGSTMAN Justice.

This is an appeal from a judgment of dismissal and for costs entered in favor of defendants after a demurrer to plaintiff's complaint was sustained. The only question before us is whether the complaint states facts sufficient to constitute a cause of action. The important facts alleged are these:

Maggie Courtney died at Dillon on August 1, 1930, leaving real and personal property worth approximately $20,000. On September 2 thereafter a document purporting to be her last will and testament was admitted to probate and letters were issued to Chris Snyder, the executor named in the purported will; and as such executor he caused notice to creditors to be published, requiring presentation of claims within ten months after September 17, or on or before July 17, 1931. On April 4, 1931, a petition to revoke the probate of the will was filed, and on March 9, 1932, judgment was entered revoking the probate of the will as well as the letters testamentary. On April 30, 1932, letters of administration were issued to defendant Winnifred Emerick. Maggie Courtney left no other will, and left as her only heirs at law one sister and nephews and nieces, the children of deceased brothers and sisters, who are defendants in this action.

During the year 1918, plaintiff, at the request of Maggie Courtney, began to look after her personal and financial affairs and continued to do so until the death of Maggie Courtney. The services consisted of writing letters and other papers, looking after property, writing checks, keeping track of bank accounts and bank balances, paying taxes, making collections, advising Maggie Courtney upon personal, business, and miscellaneous matters, and, in general, performing confidential and personal offices and services, "part of which can be performed only by a close friend and associate and cannot be purchased or had on an ordinary employment basis." It is alleged that among other services plaintiff "advised and protected the said Maggie Courtney against gross abuse of confidence and improper interference with and control of her affairs on the part of certain relatives and others who had theretofore stood in confidential relationship with said Maggie Courtney and who sought improperly to use their said confidential relationship for their own ends and against the interests of said Maggie Courtney."

It is further alleged that plaintiff protected Maggie Courtney against the efforts of certain persons to have her adjudged insane and committed to the hospital for the insane; that it would be impossible to determine the money value of the services; that about June 25, 1927, plaintiff and Maggie Courtney entered into an agreement whereby it was agreed that in consideration for such services theretofore performed and to be performed during the lifetime of Maggie Courtney, she would bequeath to plaintiff a legacy in a sum to be thereafter determined; that about March 1, 1929, it was agreed and determined that the legacy was to be the sum of $4,000; that the deceased attempted to perform the agreement by providing for such a legacy in the purported will which she made; that plaintiff relied upon the bequest and in good faith believed that Maggie Courtney had fully performed her part of the contract, and did not discover until on March 9, 1932, when the judgment was entered revoking the probate of the will, that she had not done so; that the time for presenting claims against the estate expired on July 31, 1931, long before such judgment was entered; that the interest which defendants have in the estate are as next of kin, and not otherwise, and that the rights of defendants in the estate to the extent of $4,000 are only as trustees for plaintiff; and that plaintiff, in equity and good conscience, is entitled to the sum of $4,000 from the estate after the payment of all debts and expenses of administration.

The prayer is for specific performance of the contract; that defendants be declared to be trustees for plaintiff to the extent of $4,000, with interest; and that the court enter a decree establishing plaintiff's right as a legatee to the extent of $4,000, with interest, and enjoining other disposition or distribution thereof.

That a person may make a valid contract to dispose of his property by will is no longer open to doubt. Burns v. Smith, 21 Mont. 251, 53 P. 742, 69 Am.St.Rep. 653; Sanger v. Huguenel, 65 Mont. 236, 211 P. 349. In case the promisor fails to carry out his promise to make a valid will, courts of equity will grant relief in the nature of specific performance by compelling the personal representative, the heirs, devisees, or legatees to hold the property as trustees for the benefit of the promisee. Page in his work on Wills (2d Ed.) Vol. 1, § 107, page 192, has well stated the rule as follows:

"If promisor has entered into a valid contract to devise or bequeath property, and dies without leaving a valid will in accordance with the terms of the contract, equity will give relief, subject to the restrictions which equity imposes in cases of this sort in general, and subject to the satisfaction of each specific case. This is often spoken of as specific performance. It is, of course, not technical specific performance, since there is no attempt to compel the promisor to make a will. It is rather relief in the nature of specific performance. The real purpose is to have the heirs, devisees, next of kin, or personal representative of the deceased promisor held as trustees of the property which the promisor had agreed to devise or bequeath, and to compel them to hold the legal title thereto for the benefit of the promisee cestui que trust." This remedy is more frequently resorted to when the subject-matter of the contract is real estate rather than personal property, but the jurisdiction extends likewise to contracts relating to personal property, the real basis for the action resting upon the ground that damages at law will not afford a complete remedy. Gravelin v. Porier, 77 Mont. 260, 250 P. 823; 58 C.J. 1060.

It is at this point that the counsel for the respective parties take divergent views. Counsel for defendants contend that plaintiff had an adequate remedy at law by presenting her claim against the estate under section 10173, Revised Codes, and bringing action thereon if rejected. Plaintiff's counsel contend that it was unnecessary to present a claim in order to enforce the equitable remedy.

It is not necessary to present a claim for the specific performance of a contract entered into by deceased during his lifetime. In re Bank's Estate, 80 Mont. 159, 260 P. 128. This is the general rule also in equitable actions to enforce specific performance of a contract to make a will by fastening a trust upon the property agreed to be willed.

The Supreme Court of Arkansas, in Fred v. Asbury, 105 Ark. 494, 152 S.W. 155, 157, in discussing this question said: "The statute of nonclaim is urged as a bar to the relief sought. This statute provides that all claims against estates of deceased persons shall be barred unless they are properly authenticated and presented to the executor or administrator within one year after the grant of letters; but this is not a proceeding to enforce a claim or demand against the estate of Jacob Fred, deceased, but is one to determine the rights of the parties to this suit to the property in question. The statute of nonclaim does not refer to claims of title, or for the recovery of property, for the reason that claims of such a character cannot in any just sense be said to be claims against the estate of the deceased. On...