McClanahan v. McClanahan

• Decision Date: 31 December 1913
• Parties: McCLANAHAN v. McCLANAHAN et al.
• Court: Washington Supreme Court

137 P. 479

77 Wash. 138

McCLANAHAN v. McCLANAHAN et al.

Supreme Court of Washington

December 31, 1913

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Viola McClanahan against Pearl Eunice McClanahan and others. From judgment for defendants, plaintiff appeals. Affirmed.

Tucker & Hyland, of Seattle, for appellant.

Reynolds Ballinger & Hutson, of Seattle, for respondents.

MOUNT J.

This action was brought by the plaintiff to specifically enforce an alleged oral contract entered into between the plaintiff and her husband during his lifetime. The complaint alleged in substance, that on the 14th day of March, 1891, the plaintiff and Enoch C. McClanahan intermarried and remained husband and wife until the death of Enoch C. McClanahan on the 15th day of May, 1912; that up to the time of his death the plaintiff resided with the deceased as his wife; that the plaintiff at the time of her marriage to the deceased was possessed of separate estate consisting of approximately $6,000; that the deceased did not possess any estate excepting an expectancy from the estate of one Jane Harmon deceased; that on the 11th day of September, 1891, six months after the marriage, as above stated, a verbal contract was entered into between the plaintiff and the deceased, by which each of them agreed to make, execute, and deliver to the other a last will and testament, devising to each other any and all property that either should have at the time of his or her death, and providing further that all the separate property of the parties should be used for the benefit of the community; that Enoch C. McClanahan at that time had three children by a former marriage; that wills were duly made which were exact duplicates, with the exception of the names, and that in the will of Enoch C. McClanahan his children were mentioned, and $10 given to each of them; that the wills were witnessed by the same persons, and provided for the appointment of the other as sole executor without bonds, and devised all of the property to the survivor; that while the plaintiff and Enoch C. McClanahan were living together, on or about September 1, 1894, the plaintiff received the sum of $800 from her separate estate, and delivered the same to her husband, which money was used by him in the payment of debts against his separate estate; that the contract was lived up to by both parties until four days prior to his death, when he made, executed, and published a will devising to the plaintiff only a life estate in the real estate, leaving the fee-simple title thereof to his children. Copies of these wills are attached to the complaint. After this complaint was served upon the defendants, who are the children of Enoch C. McClanahan by a former wife, two of these children appeared by their attorneys and filed an answer, denying the material allegations of the complaint, and alleging as an affirmative defense the fact of the death of Enoch C. McClanahan, and setting forth that he executed a last will on the 8th day of May, 1912, and that the same was made and published with the knowledge of the plaintiff, which fact was admitted by the reply. Thereupon the defendants filed a motion for judgment upon the pleadings and for a dismissal of the action. The court granted this motion, on the ground that the plaintiff has a complete remedy in the probate court to determine the validity of the will of Enoch C. McClanahan dated September 11, 1891, and the will dated May 8, 1912; and for that reason dismissed the complaint without prejudice to the rights of the parties to have determined the validity of either of the wills. The plaintiff has appealed from that order.

The appellant states that 'the sole question to be determined upon the appeal is whether the contract that was made by the appellant and the decedent is such a contract as equity will specifically enforce, and whether or not the execution of a new will by the decedent prior to his death effectually invalidated the contract of the parties.' No other question is presented or discussed in either the brief of the appellant or the respondents. We shall therefore proceed at once to a determination of this question.

Two cases almost identical with this case have been presented to this court, which we think are determinative of the question now presented.

The case of Swash v. Sharpstein, 14 Wash. 426, 44 P 862, 32 L. R. A. 796, was a case where Orley Hull made a parol agreement to the effect that in consideration that Eva Swash and her sister would waive the right of an appeal in litigation which was then pending between Orley Hull and his daughters, the said Orley Hull would devise to Eva Swash one-fourth of his estate at the time of his death. Eva Swash consented to this and waived the right of appeal. Afterwards her father died, leaving a will in which he...