Halldin v. Usher

• Decision Date: 19 September 1957
• Citation: 315 P.2d 418
• Parties: T. A. HALLDIN, Plaintiff and Appellant, v. William A. USHER, Mrs. William A. Usher, also known as Jane Doe Usher, Raymond Halldin, Gladys Halldin, Ruth Halldin, Dexter Halldin and May L. Erickson, Defendants, May L. Erickson, Raymond Halldin, Dexter Halldin and Ruth Halldin, Respondents. Civ. 22158.
• Court: California Court of Appeals Court of Appeals

Page 418

315 P.2d 418

T. A. HALLDIN, Plaintiff and Appellant, v. William A. USHER, Mrs. William A. Usher, also known as Jane Doe Usher, Raymond Halldin, Gladys Halldin, Ruth Halldin, Dexter Halldin and May L. Erickson, Defendants May L. Erickson, Raymond Halldin, Dexter Halldin and Ruth Halldin, Respondents.

Civ. 22158.

District Court of Appeal, Second District, Division 3, California.

Sept. 19, 1957.

Hearing Granted Nov. 13, 1957.

Mcbeth & Ford and Patrick H. Ford, Los Angeles, for appellant.

Nicolas Ferrara, Los Angeles for respondents.

VALLEE, Justice.

Appeal by plaintiff from an adverse judgment in a suit for declaratory relief. Plaintiff seeks a declaration that an alleged contract is valid and imposes a trust on certain realty and the proceeds of the sale of other realty.

Plaintiff is the son of defendant May L. Erickson and of K. Henry Halldin, deceased and the brother of defendants Raymond and Dexter Halldin and of Ruth Halldin Law. In July 1945 K. Henry Halldin and Mrs. Erickson were husband and wife. On July 5 Mr. and Mrs. Halldin (Mrs. Erickson) executed this instrument:

'July 5-1945

'K. Henry Halldin and wife May L. Halldin herewith agree that in case of death the on that survive shall have whole controll of our property.

'We also state that when both of us are gone.

'The property 1041-1043-1043-1/2 at Magnolia ave Los Angeles shall in equal parts go to our children.

'But property 1236 Ritos Vitas are Los Angeles and the lot in San Clemente go to our son T. A. Halldin as his special share beside his share in the Magnolia ave property.

'K. Henry Halldin

'May L. Halldin

'Subscribed and sworn to before me this

5th day of July 1945

Harry Christensen

Notary Public in & for the Co. of Los Angeles State of Calif. * * *'

[Seal]

The document was in the handwriting of Mr. Halldin except for the signatures of 'May L. Halldin' and the notary and for the notarial stamp and seal. It was written on small letter-size stationery.

At the time of the execution of the instrument Mr. and Mrs. Halldin had four living children: plaintiff and defendants Raymond, Dexter, and Ruth. A daughter had died leaving a son who survived Mr. Halldin. Mr. Halldin died in July 1947. Mrs. Halldin remarried and is now Mrs. May L. Erickson.

On March 21, 1955, Mrs. Erickson sold the Magnolia Avenue property to defendants Usher. Plaintiff then brought this suit for declaratory relief claiming that the instrument of July 5, 1945, was a contract between his parents for the benefit of him, his brothers, and sister. The complaint alleges Dexter Halldin and Ruth Halldin were joined as necessary parties; that he claims no cause of action against them.

The court found: 1. Defendants Usher were bona fide purchasers for value of the Magnolia Avenue property. 2. The instrument of July 5, 1945, did not create or establish any trust in praesenti of any of the property described therein. 3. Plaintiff has no legal or equitable right, title, or interest in any of the property described therein nor any interest in or liens against the proceeds of the sale of the Magnolia Avenue property. 4. Mr. and Mrs. Halldin did not intend to transfer a present title and interest in their property to anyone but were endeavoring to arrange a disposition of their property which should take effect on their death, such disposition being in effect testamentary. The conclusions of law substantially reiterate the findings and in addition state that the instrument of July 5, 1945, 'is not a valid enforceable contract.'

Judgment was for defendants. Plaintiff appeals only from that part of the judgment in favor of defendants May L. Erickson, Raymond and Dexter Halldin, and Ruth Halldin Law. He contends the instrument of July 5, 1945, is a valid contract and not testamentary in effect, that he is a third party beneficiary with the right to enforce it, and that he is entitled to relief so declaring.

We think it evident the instrument is a contract and that it is not testamentary in effect. A contract is an agreement to do or not to do a certain thing. Civ. Code, § 1549. Mr. and Mrs. Halldin 'herewith agree.' They 'agree' that on the death of either, the survivor 'shall have whole controll of our property.' They continued, 'We also state that when both of us are gone' the Magnolia Avenue property 'shall in equal parts go to our children,' and the other two items of realty 'to our son,' plaintiff, as his special share besides his share in the Magnolia Avenue property. Mr. and Mrs. Halldin subscribed the instrument and swore thereto before a notary public, the manager of their bank. The instrument contains all the essential elements of a contract: it is an agreement by competent parties, it evidences their consent, it has a lawful object. Civ. Code, § 1550. The agreement created contractual obligations. See In re Estate of Howe, 31 Cal.2d 395, 397-400, 189 P.2d 5, 1 A.L.R.2d 1171. Being in writing, it is presumed there was a good and sufficient consideration. Code Civ.Proc. § 1963(39). 'An agreement or promise to make a will is not testamentary simply because the party executing or making it undertakes at some time in the future to make a specified devise or bequest, and it is not, therefore, essential to its validity that it be executed with the formalities of a will.' 57 Am.Jur. 149, § 167. Either a husband or wife may enter into a contract with the other respecting property. Civ. Code, § 158.

Whether an instrument is ambiguous or uncertain is a question of law, and the lower court's finding on that issue is not binding on a reviewing court. Brant v. California Dairies, Inc., 4 Cal.2d 128, 133, 48 P.2d 13; Wagner v. Shapona, 123 Cal.App.2d 451, 460, 267 P.2d 378. The language of the instrument is clear, unambiguous, and explicit that Mr. and Mrs. Halldin intended it to be a contract between them pertaining to the disposition of their realty. Civ. Code, § 1638.

A person may contract to make a particular disposition of his property by will. Brown v. Superior Court, 34 Cal.2d 559, 563-565, 212 P.2d 878; Daniels v. Bridges, 123 Cal.App.2d 585, 589, 267 P.2d 343; Sonnicksen v. Sonnicksen, 45 Cal.App.2d 46, 52, 113 P.2d 495; O'Neil v. Ross, 98 Cal.App. 306, 315, 277 P. 123. The right to enforce such a contract is not restricted to the promisee. A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it. Civ.Code, § 1559; Garratt v. Baker, 5 Cal.2d 745, 748, 56 P.2d 225. A child can enforce the provisions of his parents' contract made for his benefit in the same manner as could a party to the agreement. Walsh v. Walsh, 42 Cal.App.2d 282, 285-286, 108 P.2d 760; Reliance Life Ins. Co. v. Jaffe, 121 Cal.App.2d 241, 244, 263 P.2d 82; Waxman v. Citizens Nat. Trust & Sav. Bk., 123 Cal.App.2d 145, 148-149, 266 P.2d 48. Intended legatees and devisees are entitled to enforce their rights under the contract. Daniels v. Bridges, supra, 123 Cal.App.2d at page 590, 267 P.2d 343; O'Neil v. Ross, supra, 98 Cal.App. 315-316, 277 P. 123.

Speaking of the rights of an intended devisee under a contract such as we have here, the Supreme Court has declared:

'It seems clear that he [the intended devisee] would at least be entitled to bring an action to obtain a declaration of his rights under the alleged agreement. Code Civ.Proc., § 1060. He may also be entitled to other relief. It is well settled that a person may contract to make a particular disposition of his property by will, and in case of a breach the promisee has several available remedies. He may bring an action at law for damages. See O'Brien v. O'Brien, 197 Cal. 577, 588-589, 241 P. 861; Roy v. Pos, 183 Cal. 359, 366-367, 191 P. 542; Morrison v. Land, 169 Cal. 580, 590, 147 P. 259; 4 Page on Wills (Lifetime Ed.) §§ 1733, 1744. Equitable relief in the form of 'quasi specific performance' of the contract may be obtained where the remedy at law is inadequate and the promisor has failed to make the promised disposition of his will. Jones v. Clark, 19 Cal.2d 156, 119 P.2d 731; Bank of California v. Superior Court, 16 Cal.2d 516, 524, 106 P.2d 879; Wolf v. Donahue, 206 Cal. 213, 273 P. 547. It has also been recognized that the promisees of such a contract need not wait until the death of the promisor but may seek equitable relief against inter-vivos conveyances made by him in fraud of their rights. Osborn v. Hoyt, 181 Cal. 336, 184 P. 854; Rogers v. Schlotterback, 167 Cal. 35, 48, 138 P. 728; see note, 108 A.L.R. 867; 4 Page on Wills (Lifetime Ed.) §§ 1727, 1729, 1744.

'The right to enforce such a contract to make a particular disposition of property on death is not restricted to the promisee. Where two parties agree to make mutual wills, each promising to dispose of his property to the other or, if the other be dead, to certain third persons, and one of the parties performs by leaving his property to the other, the intended devisees and legatees are entitled to enforce their rights as beneficiaries under the agreement. The contracting party who survives becomes estopped from making any other or different disposition of the property, and his obligations under the agreement become absolutely irrevocable and enforceable against him, at least where he avails himself of the provisions of decedent's will in his favor and accepts substantial benefits thereunder. Notten v. Mensing, 3 Cal.2d 469, 473, 45 P.2d 198; Sonnicksen v. Sonnicksen, 45 Cal.App.2d 46, 52-55, 113 P.2d 465; see Rolls v. Allen, 204 Cal. 604, 609, 269 P. 450. * * * The rights of the parties 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, 34 Cal.2d 559, 563-565, 212 P.2d 878, 881. Cf. Riley v. Turpin, 47 Cal.2d 152, 301 P.2d 834.

In Sonnicksen v. Sonnicksen, 45 Cal.App.2d 46, 113 P.2d 495, cited with approval in Brown v....