Goldstein v. Hoffman

• Citation: 213 Cal.App.2d 803,29 Cal.Rptr. 334
• Court: California Court of Appeals
• Decision Date: 13 March 1963
• Parties: Jennie GOLDSTEIN and Gussie Zeman, Plaintiffs and Respondents, v. Rose HOFFMAN, Defendant and Appellant, and Samuel Zeman, Defendant and Respondent. Civ. 20836.

Page 334

29 Cal.Rptr. 334

213 Cal.App.2d 803

Jennie GOLDSTEIN and Gussie Zeman, Plaintiffs and Respondents, v. Rose HOFFMAN, Defendant and Appellant and Samuel Zeman, Defendant and Respondent.

Civ. 20836.

District Court of Appeal, First District, Division 1, California.

March 13, 1963.

Hearing Denied May 8, 1963.

Sidney Rudy, Richard N. Rapoport, Wayne H. White, San Francisco, for appellant Rose Hoffman.

Raymond H. Levy, San Francisco, for respondent Samuel Zeman.

MOLINARI, Justice.

This is an appeal by Rose Hoffman, hereinafter referred to as appellant, from a summary judgment in favor of Jennie Goldstein and Gussie Zeman, hereinafter referred to as the respondents. Samuel Zeman, the executor of the Last Will and Testament of Samuel Hoffman, hereinafter referred to as the executor, has been designated as a respondent on this appeal and has filed a brief herein as such. ¹

Question Presented

Was the trial court justified in granting the motion of the respondents for a summary judgment?

The Record

The action herein was filed by the respondents against the executor, the appellant, and the appellant's two children by a previous marriage, Hillard Goldstein and Fred M. Goldstein, hereinafter referred to as the Goldsteins. ² The complaint alleges as follows: that the appellant is the widow of Samuel Hoffman, hereinafter referred to as the decedent; that the respondents are daughters of the said decedent, being the issue of a previous marriage between the decedent and Rebecca Hoffman, who died on August 10, 1946; that pursuant to a decree of distribution in the estate of said Rebecca Hoffman certain real property was distributed to the respondents; that thereafter the respondents conveyed the said real property to the decedent in consideration of a written agreement executed by the said decedent and dated November 3, 1949; ³ that '[p]ursuant to the commitments' made by said decedent in said agreement he executed his Last Will and Testament; ⁴ that under and by virtue of said agreement and said will the respondents were entitled to receive the entire estate of said decedent; that subsequent to the probate of the estate of said Rebecca Hoffman, said decedent married the appellant, Rose Hoffman; that despite the terms of said agreement and will, the decedent thereafter executed another will without the consent of respondents, which will was admitted to probate upon the death of decedent as his last will; ⁵ that the respondent Samuel Zeman was named and appointed executor of said last will; that by virtue of exhibits 'A' and 'B' the said decedent had only a life estate in the assets contained in his estate; that upon the death of Samuel Hoffman the respondents were entitled to receive the entire estate of the decedent; that the appellant has no interest in the estate of the decedent except as a trustee on behalf of the respondents; and that the Goldsteins claim some interest in said property under the decedent's last will. The complaint prayed for a decree declaring that all of the assets of decedent allegedly belonging to his estate are the property of respondents; that the appellant and the Goldsteins have no right or interest therein; and that the appellant and the Goldsteins hold any of such property in their possession as trustees for the respondents for which they are required to account to the respondents. ⁶ The appellant answered said complaint and asserted several affirmative defenses.

The respondents thereafter filed a motion for summary judgment, and joined in an affidavit filed in support thereof. In view of the elementary principle that there must be a sufficiently supportive affidavit in order to justify the granting of a motion for summary judgment the substantive portions of the said affidavit are set out in their entirety in the footnote. ⁷ The affidavit contains a statement that all the facts therein stated are within the affiants' personal knowledge, and that if sworn as a witness each could competently testify thereto. The affidavit contains other statements, but these consist of argumentative matter and legal conclusions. The appellant did not file or present a counter-affidavit. ⁸

Exhibit 'A' is also set out in full in the footnote. ⁹ Exhibit 'B' is entitled 'Last Will and Testament,' contains an attestation clause, bears the signature of 'Samuel Hoffman,' is dated November 3, 1949, and in every respect appears to be a testamentary instrument. By its provisions the testator gives, devises and bequeaths all of his property to his 'two daughters share and share alike, Jennie Goldstein and Gussie Zeman * * *.' Exhibit 'C,' which was admitted to probate as the last will of the decedent, is dated February 26, 1958, and by its terms, after bequeathing household furniture and personal effects to the appellant, bequeaths and devises the residue of the estate as follows: one-third each to the respondents and the appellant.

The court below granted the motion for summary judgment, and subsequently made its judgment which ordered, adjudged and decreed that the respondents have judgment against the appellant and the Goldsteins; that all adverse claims of the 'defendants' in and to the estate of the decedent are decreed to be invalid and groundless; that the sole, true and lawful beneficiaries of the estate of said decedent and entitled to the distribution of all the assets of said estate are the respondents, share and share alike, reserving to the probate court the determination of possible family allowance to the appellant.

Contentions of the Appellant

1. The affidavit does not set forth sufficient facts to entitle the respondents to a judgment.

2. An agreement to make a will cannot be specifically enforced.

3. The respondents are not entitled to quasi-specific performance because they failed to show in their affidavit that they did not have an adequate remedy at law.

Contentions of the Respondents

1. A contract to make a will is a binding contract and is specifically enforceable.

2. The respondents' affidavit was sufficient to support the granting of the motion for summary judgment.

The Summary Judgment Procedure

The purpose of the summary judgment procedure is to discover, through the media of affidavits, whether the parties possess evidence which demands the analysis of trial. (Burke v. Hibernia Bank, 186 Cal.App.2d 739, 744, 9 Cal.Rptr. 890; Kramer v. Barnes, 212 A.C.A. 438, 443, 27 Cal.Rptr. 895; Code Civ.Proc. § 437c.) The object of the proceeding is to discover proof. (2 Witkin, Cal.Proc., pp. 1711-1715.) A summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counter-affidavits do not proffer competent and sufficient evidence to present a triable issue of fact. (Burke v. Hibernia Bank, supra, pp. 743-744, 9 Cal.Rptr. pp. 893-894; Kramer v. Barnes, supra, p. 442, 27 Cal.Rptr. p. 898.) In the case at bench we do not have any counter-affidavit. We are relegated, therefore, to a determination of whether the affidavit of the respondents is sufficiently supportive of the instant summary judgment. (Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 366, 333 P.2d 133.)

In order to meet the test of sufficiency and thus place the proceeding in the posture where, in the absence of a counter-affidavit, the trial court would be required to grant the motion for summary judgment, the affidavit of the respondents must satisfy three requirements: (1) It must contain facts sufficient to entitle the moving parties to a judgment, i. e., facts establishing every element necessary to sustain a judgment in their favor; (2) such facts must be set forth with particularity, i. e., all requisite evidentiary facts must be stated, and not the ultimate facts or conclusions of law; and (3) each of the affiants must show that if sworn as a witness she can testify competently to the evidentiary facts contained in the affidavit. (Snider v. Snider, 200 Cal.App.2d 741, 748, 19 Cal.Rptr. 709; House v. Lala, 180 Cal.App.2d 412, 416, 4 Cal.Rptr. 366; Kramer v. Barnes, supra, p. 443, 27 Cal.Rptr. p. 898.) Where the moving affidavit is uncontroverted the trial court is entitled to accept as true, for the purposes of the motion for summary judgment, the facts stated therein, provided they are within the personal knowledge of the affiant and are facts to which he could competently testify. (Southern Pacific Co. v. Fish, supra, p. 362, 333 P.2d p. 141; Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464.) It is also well-established that where no triable issues are presented, and the sole remaining question is one of law, that question may appropriately be determined on a motion for summary judgment. (Wilson v. Wilson, 54 Cal.2d 264, 269, 5 Cal.Rptr. 317, 352 P.2d 725; Siemon v. Russell, 194 Cal.App.2d 592, 595, 15 Cal.Rptr. 218; Nini v. Culberg, 183 Cal.App.2d 657, 664, 7 Cal.Rptr. 146; Pac. Inter-Club Yacht Ass'n v. Richards, 192 Cal.App.2d 616, 620, 13 Cal.Rptr. 730.)

The Agreement to Make a Will

The statutes of this state provide that a person may make a valid agreement in writing binding himself legally to make a particular disposition of his property by will. (Civ.Code, § 1624, subd. 6; Code Civ.Proc. § 1973, subd. 6; Wolf v. Donahue, 206 Cal. 213, 220, 273 P. 547.) Accordingly, where a party contracts to make a particular disposition of property by will, the agreement necessarily includes a promise not to breach the contract by revoking the will and failing to dispose of the property as agreed. (Brown v. Superior Court, 34 Cal.2d 559, 563-564, 212 P.2d 878; Brewer v. Simpson, 53 Cal.2d 567, 589, 2 Cal.Rptr. 609, 349 P.2d 289.) The rights of the parties to such an agreement depend upon the contract, and the revocation of the will or other breach of the contract does not prevent the intended devisee or legatee from enforcing the contractual obligations. (Brown v. Superior Court, supra, p. 565, 212 P.2d p. 882; Daniels v. Bridges, 123 Cal.App.2d...