Ludwicki v. Guerin
| Decision Date | 08 August 1961 |
| Citation | 15 Cal.Rptr. 506 |
| Parties | Marjorie LUDWICKI, Plaintiff and Appellant, v. Bruce GUERIN, as Executor of the Estate of Paul James Guerin, deceased; Bruce Guerin, as Administrator of the Estate of Eva Bonin Guerin Arbour, deceased; Bruce Guerin, as Administrator of the Estate of Alphonse J. Guerin, deceased; Bruce Guerin, also known as Bruce James Guerin, individually, Defendant and Respondent. Civ. 25283. |
| Court | California Court of Appeals Court of Appeals |
Everett F. Beesley and Maurice Gordon, Los Angeles, for appellant.
Maury, Larsen & Hunt, Los Angeles, for respondent.
Plaintiff, the daughter of decedent Paul Guerin, instituted this action in September of 1959 to establish a constructive trust as to one-half of Paul's estate, to secure specific performance of a contract jointly executed by Paul and his wife Alma (plaintiff's mother) to will plaintiff one-half of his (or her) estate, and for declaratory relief. The answer having affirmatively pleaded that the action was barred by certain statutes of limitation (as well as by laches), the court proceeded to try such special defenses before the trial of any other issue (Code of Civil Procedure, § 597) and found thereon in defendant's favor. Judgment was entered accordingly, and plaintiff has appealed.
The protracted litigation involving Paul's estate has been subject of a previous appeal (Guerin v. Guerin, 152 Cal.App.2d 696, 313 P.2d 902,), reference to which will furnish much of the background of the present controversy. Plaintiff is the natural daughter of Paul and Alma Guerin; defendant Bruce is their adopted son, five years plaintiff's junior. In December, 1922, Paul and Alma executed a two-part agreement which is the subject of this litigation: the first part declared and settled their respective property rights; the second part consisted of an agreement by which each contracted to execute a will equally in favor of the present parties. Paul and Alma eventually became estranged and Paul died in March of 1952, approximately two weeks after the commencement of a separate maintenance suit against Alma. In January of 1953, as Paul's executor under a will dated two weeks prior to his death and which, the instant record reveals, Alma unsuccessfully contested, Bruce initiated action against Alma which terminated in a judgment awarding Paul's estate an undivided interest in a large number of properties held by Alma during Paul's lifetime, as well as a money judgment against Alma. The 1922 agreement furnished support in considerable measure for the trial court's findings of Paul's interest in the properties involved.
Upon appeal the judgment was affirmed as modified (152 Cal.App.2d 696, 712, 313 P.2d 902,) and a petition for hearing by the Supreme Court was denied on September 18, 1957. When the remittitur came down, as will be pointed out in a companion appeal (15 Cal.Rptr. 512), further probate and other proceedings were had in connection with Paul's estate; it is presently not unsubstantial and plaintiff is here seeking to secure her distributive share thereof through recourse to the remedies already mentioned. The exact nature of the remedies invoked becomes important in light of the finding that they are barred by certain statutes of limitation, specifically, Sections 337, subd. 1 and 338, subd. 4 of the Code of Civil Procedure.
Plaintiff's first cause of action was one to impress a trust as to her distributive share of the estate's assets; however, the declaration of such a trust would, in effect, be the equivalent of what is sought by the second cause of action, namely, specific performance of decedent's commitment with regard to testamentary disposition of his property. While an equity court cannot compel the making of a will during the promisor's lifetime, 'the court will, in an action by the promisee, impose a constructive trust upon any particular property in the hands of the individual distributee' (Bank of California, Nat. Ass'n v. Superior Court, 16 Cal.2d 516, 524, 106 P.2d 879, 884); as observed in the case just cited, the relief is sometimes called "quasi-specific performance', since it accomplishes the substantial result of enforcement of the contract.' The doctrine of quasi-specific performance is said to have 'its statutory basis in the provision of the Civil Code that one who gains a thing by fraud, accident, mistake, undue influence, violation of a trust, or other wrongful act is, unless he has some other and better right, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.' 54 Cal.Jur.2d Wills, Section 528. The present action having been brought on the theory of a constructive trust, the 3-year limitation declared in Section 338, Subd. 4, Code of Civil Procedure, is applicable (Schaefer v. Berinstein, 180 Cal.App.2d 107, 131, 4 Cal.Rptr. 236) 1; sebdivision 4 further provides that the cause of action shall not be deemed to have accrued 'until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.'
By appropriate pleading, plaintiff brought herself within the quoted portion of the subdivision which suspends the operation of the statute. She alleged that she did not know of the existence of the contract in suit or have any knowledge of its terms until September 21, 1957; that she had resided in the State of Michigan, except for brief periods, since January of 1948, and nothing was said to her by anyone concerning the contract during the intervening years. After alleging, on information and belief, that the defendant was at all times since his appointment as Paul's executor aware of the existence of the contract in suit, plaintiff further alleged that defendant 'fraudulently and in violation of his duties and obligations as an officer of the Court and with the intent and purpose of defrauding the plaintiff herein, concealed from and failed to disclose to the Court charged with the administration of said estate, or to the plaintiff, the existence and contents of said Contract for Will.' The circumstances surrounding her discovery of the contract were pleaded as follows:
The trial court found that 'it is not true that defendant Bruce Guerin, either individually or as Executor or Admininstrator, deliberately or fraudulently or in violation of his duties as an officer of the Court, or with the intent or purpose of defrauding the plaintiff, or otherwise, or at all, concealed from or failed to disclose to the Court charged with the administration of said estate of Paul J. Guerin, deceased, or to the plaintiff herein, the existence of said * * * or any, contract for will.' There was a further finding that 'patent means of knowledge of the existence of said contract and of its terms were readily available to plaintiff, and that she failed to exercise due diligence and vigilance to discover the same'; in this latter respect it was found that 'plaintiff has resided part of the time in the State of Michigan since January, 1948, and * * * that she made frequent trips to the City of Los Angeles * * * that she was in the City of Los Angeles during the months of November and December, 1952, during the trial of the Will Contest in the Matter of the Estate of Paul J. Guerin, deceased, and was a witness therein for the contestant, Alma P. Guerin * * * that the trial of Action No. 608,568 was held in the County of Los Angeles * * * during the month of March, 1955 * * * that a certified copy of said Property Settlement and Contract for Will was received in evidence during said trial * * * as Plaintiff's Exhibit 1, and was used as a basis and a principal item of evidence throughout the course of said trial * * * that Plaintiff visited her Mother, Alma P. Guerin, throughout the period from March of 1952 to September of 1959, and that said Alma P. Guerin was a party to said Property Settlement Agreement and Contract for Will and was well aware of the existence of same at all times.'
It appears that the existence of the contract in suit first came to light following the institution by Bruce of Action No. 608,568 against Alma. Bruce's wife, acting on his attorney's instructions, proceeded to make a search of the official records pertaining to property transactions; she did so 'looking toward trial preparation of the suit in the Superior Court.' A certified copy of the instrument, bearing certification date of June 11, 1954, was secured; the witness testified that she discovered the document 'a few days' prior thereto.
Assuming that defendant, as executor, 3 fraudulently concealed the discovery of the contract, the principle was recently restated that 'no hard and fast rule can be laid down as to when a party, as a reasonable man, should discover a fraud. * * * rather each case must be determined on its own facts and circumstances.' Wilbur v. Wilson, 179 Cal.App.2d 314, 316, 3 Cal.Rptr. 770, 772. Furthermore, 'When the facts are susceptible to opposing inferences, whether a party had notice of circumstances sufficient to put a prudent man on inquiry as to a particular fact, and whether by prosecuting such inquiry he might have learned such fact, are questions of fact to be determined by the trial court (citations)' (Tognazzini v. Tognazzini, 125 Cal.App.2d 679, 687, 271 P.2d 77, 82.) Counsel for plaintiff insists that the...
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Guerin's Estate, In re
...15 Cal.Rptr. 512 ... 194 Cal.App.2d 566 ... In the Matter of the ESTATE of Paul J. GUERIN, to Determine Heirship, Order Settling Account and Fixing Fees ... Marjorie LUDWICKI, Petitioner and Appellant, ... Bruce GUERIN, as Executor of the Estate of Paul James Guerin; Bruce Guerin, Administrator of the Estate of Alphonse J. Guerin, Bruce Guerin, Individually, Objectors and Respondents ... Civ. 25282 ... District Court of Appeal, Second District, Division 1, California ... ...