Lich v. Carlin

• Decision Date: 26 August 1960
• Docket Number: No. 19102,19102
• Citation: 184 Cal.App.2d 128,7 Cal.Rptr. 555
• Court: California Court of Appeals Court of Appeals
• Parties: Martha Jane LICH, Plaintiff and Appellant, v. Mabel Ruth CARLIN, Defendant and Respondent.

Page 555

7 Cal.Rptr. 555

184 Cal.App.2d 128

Martha Jane LICH, Plaintiff and Appellant, v. Mabel Ruth CARLIN, Defendant and Respondent.

No. 19102.

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

Aug. 26, 1960.

Hearing Denied Oct. 19, 1960.

Frederick S. Reinheimer, San Jose, for appellant.

Raymond H. Goodrich, Joseph C. Davish, Santa Cruz, for respondent.

QUAYLE, Justice pro tem.

This is an appeal from a nonsuit in favor of the defendant Mabel Ruth Carlin. The plaintiff brought suit to enforce an agreement alleged to have been entered into by her mother Elsie Carlin and her stepfather John Carlin, whereby each would leave to the other all property owned of death and the survivor would leave all of said property remaining at his or her death to plaintiff, Martha Jane Lich. Elsie died first and John Carlin remarried. Defendant Mabel Ruth Carlin became his wife. He executed a will in her favor and she succeeded to all of his property, either under his will or as surviving joint tenant. This action seeks to establish a trust in and to any property of John Carlin now held by defendant.

Facts

Elsie Moltz married John Carlin in May 1936. John Carlin had no children. Plaintiff, Martha Jane, was Elsie's daughter from her previous marriage to Marcus Moltz. The plaintiff, Martha Jane, married Donald Lich and the couple had three daughters. In July 1957 the plaintiff moved from Pasadena to Santa Cruz in order to take care of her mother Elsie, who was suffering from cancer. The plaintiff's family rented a home a few blocks from the Carlin residence. The plaintiff spent a substantial portion of each day in the Carlin home taking care of her bedridden mother.

Some time in July or August 1957 Elsie showed plaintiff documents in Elsie's handwriting bearing the signatures of Elsie and John Carlin. They provided for mutual testamentary disposition of the Carlin property: all to the surviving spouse and upon the death of the survivor, one-half to plaintiff, one-quarter to a church, and one-quarter to Elsie's brother, Monty Stuckey.

A short time thereafter Elsie was seen writing two documents which were later shown to plaintiff. They approved to be wills, in form, and they were entirely written and dated in Elsie's handwriting but at that time they contained no signatures. Several days later plaintiff and her husband discussed these wills with Elsie and John in Elsie's bedroom. Elsie stated, in John's presence, that she was leaving everything to John because of his condition, and that he agreed to do the same for her in case he died first, and that afterwards when they were both gone everything left in their estates would come to plaintiff and her daughters. The language of these wills substantially carried out this testamentary plan. Elsie and John had affixed their signatures to their respective wills at this time but no witnesses had signed them.

A few days later John Carlin arranged to have Herbert Flores and his wife Pearl Flores come to the home and sign as witnesses to these new wills. Elsie explained the wills to Mr. and Mrs. Flores in John's presence. Both she and John stated that the signatures thereon were theirs. Since Elsie was bedridden the wills were taken into the adjoining kitchen, approximately ten feet from Elsie's bed, where the witnesses signed both documents in John's presence.

The following evening John Carlin took the wills out of a drawer and discussed their contends with Mr. and Mrs. Lich. He stated that he would carry out his wife's wishes as he had promised and that plaintiff would eventually get the Carlin property.

A few weeks later, on October 21, 1957, Elsie Carlin died. Plaintiff and her husband did not move back to Pasadena until early in November 1957. However, both testified that they saw the wills in question in a drawer in the Carlin home after Elsie's death and prior to their moving away. On or about November 26, 1957, John Carlin wrote to one Alvin Grauerholz, attorney for plaintiff's grandmother, and admitted that 'She [Martha] has already been compensated from Elsie's will to some extent.'

But no will of Elsie Carlin was ever produced or probated. The only property on which her name appeared stood in joint tenancy with her husband. He succeeded to this as surviving joint tenant through the recordation of a certified copy of Elsie's death certificate. On November 29, 1957, John applied for a marriage license to wed Mabel Ruth Kissinger, the defendant herein. The ceremony was performed on December 20, 1957. On January 8, 1958, he executed a will leaving all of his property to defendant. He died on July 17, 1958 and his will was filed for probate on August 15, 1958. Most of his property stood in joint tenancy with defendant and she succeeded to it as surviving joint tenant.

Plaintiff learned about John Carlin's death indirectly and not from defendant. She then wrote to defendant inquiring about Elsie's and John's wills. Defendant's letter in reply stated '* * * combined will of your mother and Johnny, no such one was found * * * we combined everything into joint tenancy, which precludes court action.'

Plaintiff then filed 'Complaint to Establish a Trust, for Specific Performance, to Quiet Title and For Declaratory Relief.' In it were listed assets now possessed by or standing in the name of defendant which were owned by the Carlins prior to Elsie's death or the proceeds or reinvestments from the same.

Issues

Since this is an appeal from a judgment of nonsuit the main issue is whether or not there is sufficient evidence to support a triable issue of fact. It is only when there is no evidence to prove an essential element of a cause of action that a nonsuit is proper. Stewart v. Miranda, 170 Cal.App.2d 373, 338 P.2d 941; Brady v. Carman, 179 Cal.App.2d 63, 3 Cal.Rptr. 612; Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124.

The motion for nonsuit was made and granted on the ground that there was no enforceable agreement between Elsie and John Carlin that would affect the disposition of this property. Defendant contends that the nonsuit was proper because:

(1) There was no evidence that the parties entered into a contract;

(2) The terms of the alleged contract were uncertain;

(3) Elsie Carlin revoked her will prior to her death;

(4) Plaintiff cannot enforce the alleged contract;

(5) An action to enforce disposition of property according to mutual wills cannot affect property standing in joint tenancy.

Was There Evidence That the Parties Entered into a Contract?

The fact that Elsie and John Executed wills at approximately the same time, or that wills provided reciprocal benefits to the makers and the same eventual distribution, raises no inference that they are mutual wills, or that they were executed pursuant to contract. The making of mutual reciprocal wills, standing alone, is not evidence of an agreement to make such wills. Daniels v. Bridges, 123 Cal.App.2d 585, 267 P.2d 343. Neither are declarations of testamentary intentions sufficient to constitute a contract to make a will. Berdan v. Berdan, 39 Cal.App.2d 478, 103 P.2d 622. There must be an agreement between the parties themselves. Civil Code, § 1565. Therefore we must determine whether the evidence indicated that Elsie and John agreed between themselves as to the testamentary plan alleged.

Four witnesses testified on this subject. Herbert Flores came to the Carlin home with his wife to act as witnesses on the wills. He recalled very little of the conversation, but he did testify that John told him that they had agreed to wills that they wanted witnessed. On the same evening, his wife Pearl Flores heard Elsie say, in John's presence, 'I have Johnny's and my Wills and we have agreed that in these Wills in the event I die first my worldly goods will go to Johnny, and then if Johnny should pass away it would be Martha's and her children[']s.' She also heard Elsie say that if Johnny should die first the property would be hers and then it would be Martha's and the children's when she passed away.

Plaintiff's husband, Donald Lich, testified that he saw and read the wills in question; that he was in the kitchen when Mr. and Mrs. Flores placed their names on the documents as witnesses thereto; that on the following evening John brought out the wills and discussed them with Lich and his wife. He heard John tell plaintiff not to feel bad because she would get nothing from her mother's will if Elsie died first, because he intended to carry out Elsie's wishes if he outlived her. In that case when he died anything that was left would go to plaintiff and her children.

Plaintiff herself testified that in July or August 1957 her mother Elsie showed her two documents that set forth a testamentary plan for Elsie and John. They provided for distribution of the Carlin property to the surviving spouse and upon the death of the survivor, it would go one-half to plaintiff, one-quarter to a church, and one-quarter to Elsie's brother, Monty Stuckey. Shortly thereafter she saw Elsie prepare two new testamentary documents in longhand. Plaintiff read them and discussed them with Elsie. One was a will for Elsie giving everything to John if living, and if he be dead, then everything to Martha or her children. The other was a will for John giving everything to Elsie if living, and if she be dead, then everything to Martha or her children. About September 1, 1957 Elsie told her, to the presence of John and Donald Lich, that she was leaving everything to John because of his heart condition, and that he agreed to do the same for her if he died first. That afterwards when they were both gone everything left in their estates would go to plaintiff or her daughters. She corroborated the testimony of Mr. and Mrs. Flores as to what took place when the wills were witnessed and corroborated her husband's testimony about John assuring her that she and the children would eventually get the property.

The evidence of...