Henry v. Weinman
| Decision Date | 03 February 1958 |
| Citation | 321 P.2d 117,157 Cal.App.2d 360 |
| Court | California Court of Appeals Court of Appeals |
| Parties | D. Ellen HENRY, also known as D. Ellen Dollar, Plaintiff and Appellant, v. Mae S. WEINMAN, Paul Pritchett, and Frank Mergenthaler, Defendants and Respondents. Civ. 22559. |
N. E. Youngblood, and Anthony T. Carsola, Beverly Hills, for appellant.
Eugene S. Ives, Los Angeles, for respondents.
Plaintiff appeals from a judgment that she recover nothing upon her alleged causes of action seeking damages for breach of contract and for fraud. The cause was tried before the court without a jury. In its findings of fact, the trial court found that the alleged contract was non-existent and that the allegations of fraud were untrue.
Plaintiff and Alexander Dollar, hereinafter sometimes referred to as the testator, were married in 1945. Alexander Dollar died on June 21, 1952, leaving a will which antedated his marriage to plaintiff. It is undisputed that as to plaintiff the will was revoked by the subsequent marriage, Section 70 of the Probate Code being clearly applicable.
By the terms of his will dated December 8, 1942, testator left his entire estate to the defendant Mae Weinman, and named her executrix. Testator's former wife, Ruth, who had died in 1942, was defendant Weinman's daughter. It appears that the relationship between the testator and his mother-in-law always was a very close one and that a substantial part of his estate had its origin in gifts from Mrs. Weinman to her daughter, Ruth, and was inherited by him upon Ruth's death. After Alexander Dollar's death, his will was found in his safety deposit box and was contained in an envelope bearing the inscription in testator's handwriting:
On July 28, 1952, the will was admitted to probate without contest and Mrs. Weinman was appointed executrix. Plaintiff appeared as a witness at the probate hearing and testified to her wish that the will be admitted. It is undisputed that the testator's surviving heirs, other than plaintiff, were certain brothers and sisters and a nephew. It is further agreed that had the will been successfully contested and denied probate, distribution of the estate under the laws of succession would have given plaintiff all the community property and one-half of the separate property, with the balance going to the brothers, sisters, and nephew. Defendant Weinman would have taken nothing from the estate under the laws of succession. Although all the heirs were given due notice of the proceedings, no contest was filed.
At the trial of the instant action, plaintiff testified that she was induced to refrain from contesting the will by certain promises made by defendant Weinman to the effect that if plaintiff would allow the will to be probated without contest Mrs. Weinman would turn over to her all of the distributable estate. According to plaintiff's testimony, this promise was first made by Mrs. Weinman in the course of a conference with the defendant Mergenthaler at the latter's law office, prior to the probate hearing and some two weeks after the will was found.
Mr. Mergenthaler, the attorney who filed the petition for probate of the will, was joined as a party defendant in the cause of action alleging fraud. It is undisputed that he had been Mrs. Weinman's attorney for many years. He had acted as the attorney in the settlement of the estate of her daughter, Ruth, and of her former husband, William Sampson.
Plaintiff further testified that on July 28, 1952, she went to court with Mr. Mergenthaler and Mrs. Weinman to attend the hearing on the petition for probate of the will, and that immediately before the hearing, while waiting in an ante-chamber of the courtroom, Mrs. Weinman repeated her promise to turn over the assets of the estate to plaintiff. According to plaintiff, Mr. Mergenthaler was present at the time of this conversation.
Mr. Mergenthaler's testimony is substantially at variance with that of plaintiff. He denied that Mrs. Weinman was present at any conference with plaintiff at his office before the probate hearing. He testified that plaintiff came alone to his office to deliver the original will a few days after Mr. Dollar's death. His version of his conversation with her on that occasion was as follows:
property had been given to Ruth Dollar, the daughter of Mrs. Weinman, by Mrs. Weinman, and under Ruth's will, Alex Dollar received about $42,000 of property from Ruth Dollar's estate and consequently there was a great amount or I thought there was a great amount of separate property in the estate.
'I also informed her that Alex Dollar had left a number of brothers and sisters in the east; I think some seven or eight; and that if the will had been revoked by that writing, the brothers and sisters would be entitled to one-half the separate property, and that if she contested the probate of the will and was successful in establishing that writing on the envelope as a revocation of the will, they would be entitled to one-half the separate property; that she would be entitled to all of the community property and the other half of the separate property.'
Mr. Mergenthaler testified that nothing was ever said about plaintiff's right to a family allowance and that the only conversation between plaintiff and Mrs. Weinman relating to distribution of the estate which he overheard occurred upon their return to his office immediately after the hearing in the probate court when the will was admitted. He related Mrs. Weinman's statement on that occasion, as follows: 'They came to my office and Mrs. Weinman said that she regarded Ellen as her daughter; she had entertained Alex Dollar and Mrs. Dollar frequently at her Arrowhead house and she looked on Mrs. Ellen Dollar as her daughter. She stated that--'I don't care anything about this estate and I intend to give it to Mrs. Dollar.'' Later on the same day, Mergenthaler wrote plaintiff a letter confirming this conversation and containing the following paragraph:
'As Mrs. Weinman informed you today, it is her intention to turn over to you any interest that she might have in Alex' estate under the will, but not as a creditor. I pointed out there was a possibility there might be a gift tax on any amount of the estate which would pass under an assignment from Mrs. Weinman to you and I thought that if there was such a tax, it should be paid by you and you agreed to this idea.'
As above indicated, the will was admitted to probate and letters testamentary were issued to Mrs. Weinman on July 28, 1952. No contest after probate was filed. Between July of 1952 and October of 1953, such proceedings were taken in the probate matter that by the latter date the estate of Alexander Dollar was ready for distribution. Early in October of 1953, Mr. Mergenthaler drafted a document entitled, 'Agreement as to Distribution of Assets'. He testified that it was his purpose in drafting the agreement to provide for a distribution of assets to plaintiff equal in value to the interest which she would have been entitled to receive under the laws of succession. In drafting the agreement he utilized his personal knowledge of the source of the assets and their character as separate or community property.
Mr. Mergenthaler mailed the agreement to Mrs. Weinman at her home at Lake Arrowhead. Mrs. Weinman signed it and asked her son-in-law, Paul Pritchett, to take it to plaintiff for her signature. Plaintiff testified that Pritchett told her the agreement was 'for record purposes' and that Mrs. Weinman would return the assets to her after the estate was settled.
Thereafter, Mr. Mergenthaler prepared Mrs. Weinman's final account and report as executrix, and her petition for distribution. Pursuant to the agreement, a decree of distribution was accordingly entered on November 4, 1953. No appeal was taken from this decree and it became final long before the commencement of this action. Mr. Mergenthaler wrote a letter to plaintiff, dated November 19, 1953, enclosing a copy of the decree of distribution, and a receipt for her distributive share, which he requested her to sign and return. In this letter he undertook to explain in some detail the apportionment of the assets, the adjustment of tax payments, etc. A few days later Mergenthaler mailed plaintiff a copy of the final account, report and petition for...
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