McCullough v. McCullough

• Decision Date: 04 September 1929
• Docket Number: 21884.
• Citation: 153 Wash. 625,280 P. 70
• Parties: McCULLOUGH v. McCULLOUGH et al. [*]
• Court: Washington Supreme Court

280 P. 70

153 Wash. 625

McCULLOUGH v. McCULLOUGH et al. ^[*]

No. 21884.

Supreme Court of Washington

September 4, 1929

Department 2.

Appeal from Superior Court, Whatcom County; W. P. Brown, Judge.

Action by Ruth McCullough against Edward McCullough and another, as surviving trustees of the estate of Laura M. Gaudette deceased, and others. Decree for plaintiff, and defendants appeal. Affirmed.

Hadley, abbott & Madison and Howard & Kindall, all of Bellingham, for appellants.

Edwin H. Flick and Standley Kent, both of Seattle, and Frank W Radley, of Bellingham, for respondent.

MAIN J.

This action was brought to specifically enforce an oral contract to make a will. The defendants were the trustees and the beneficiaries under the last will and testament of Laura M. Gaudette, deceased. The trial was to the court without a jury, and resulted in a decree awarding to the plaintiff what is referred to as the Eldridge avenue home and $50,000 in money, from which decree the defendants have appealed.

The facts essential to be stated are these: Edmund Gaudette and Laura M. Gaudette were married in 1883, and for some years prior to Mr. Gaudette's death, in 1916, resided in the city of Bellingham. The respondent, a grandniece of Mrs Gaudette, was born January 27, 1904. Her father and mother were Curtis C. Dennis and Mollie Donnis. Mrs. Dennis died in April, 1905, when the respondent was approximately 13 months old. Thomas McCullough and Ellen McCullough, his wife, were the parents of Mrs. Dennis and the grandparents of the respondent. After the death of Mrs. Dennis, Mrs. Gaudette desired to take the respondent into her home and bring her up as her own daughter; Mr. and Mrs. Gaudette having no children of their own. Without reciting the preliminary talk, there was finally entered into an oral agreement between Mrs. Gaudette, Mr. Dennis, the respondent's father, and Mr. McCullough, her grandfather, to the effect that the grandfather and grandmother were to adopt the respondent. She was to be taken into the home of Mrs. Gaudette, cared for, clothed, and educated, and at Mrs. Gaudette's death was to be made an heir and receive the Eldridge avenue home and the sum of $50,000. Mr. Dennis, the father of the respondent, was to sever his relations with her and in no manner interfere with the custody and control of her by Mrs. Gaudette. The father made and implicitly carried out his part of the agreement, believing it to be the best thing for his daughter, in view of the fact that the Gaudettes were wealthy and that he and the daughter's grandparents were people of very limited financial means. After the respondent entered the home of Mrs. Gaudette, the relation between them was much the same as that of a mother and her natural child. The respondent was well cared for and educated, and to this extent Mrs. Gaudette carried out her part of the agreement. The respondent, in pursuance of the agreement, was legally adopted by her grandparents.

In 1921 Mrs. Gaudette made a will in which she bequeathed to respondent $50,000 in money. In May, 1925, she made another will revoking the prior will, and in the later will the respondent was not mentioned as a beneficiary. A little later she added a codicil to this will by which she gave the respondent a bequest of $5,000 and permitted her to share as a residuary to the extent that the total amount that she would receive, including the $5,000, would be approximately $10,000.

After Mrs. Gaudette's death, which occurred June 25, 1925, her will was duly and regularly admitted to probate. The estate amounted to something over $500,000. After the executors had filed their final report and before the decree distributing the estate to the trustees was entered, the respondent came into the probate proceeding and gave notice that she had an action pending in equity to enforce an oral contract to make a will. No claim had been filed by the respondent within the six months' period or at all. The court entered a decree distributing the estate to the executors named in the will as trustees. This decree provided, among other things, that pending final determination of the suit instituted by the respondent the Eldridge avenue home should not be sold by the trustees, and that pending final determination of that suit the trustees should retain cash or merchantable securities in the sum of $70,000 to meet any cash demand that the respondent might be adjudged entitled to. It was expressly provided that by the entry of that decree the respondent did not waive any rights, if any such existed, under the complaint which she had filed. The estate was distributed to the trustees in accordance with the decree, and the suit which was pending was finally brought to issue and tried and resulted as above indicated.

The first question to be determined is whether the evidence sustains the contract. Upon this question the evidence is direct and positive that Mr. and Mrs. McCullough were to adopt the respondent, she was to be taken into the home of Mrs. Gaudette, cared for and educated, made an heir, and upon the death of Mrs. Gaudette was to have the Eldridge avenue home and $50,000 or $60,000 cash bequest. This evidence is corroborated by witnesses to whom Mrs. Gaudette made declarations during her lifetime. While contracts of this kind are not favored and many times not enforced upon oral proof, the power to make a valid agreement to dispose of property by will in a particular way has long been recognized. In re Edwall's Estate, 75 Wash. 391, 134 P. 1041; Alexander v. Lewes, 104 Wash. 32, 175 P. 572. The evidence, to sustain an oral promise to make a will, must be conclusive, definite, certain, and the contract must be established beyond all reasonable doubt. Henry v. Henry, 138 Wash. 284, 244 P. 686. The evidence in the case now before us fully meets the requirements of that rule. After an examination of the evidence we entertain no doubt that the agreement above mentioned was in fact made. We are in entire accord with the trial court in sustaining the agreement.

The next question is whether the agreement proven was the one reserved to the respondent in the decree above mentioned which distributed the estate of the deceased to the trustees. The case was tried upon the fourth complaint. This differed from the first in some material respects the details of which it is not necessary to set forth. At the time the decree was entered a suit was pending in which the respondent was seeking to enforce an oral contract to make a will. In the decree there was specifically mentioned the Eldridge avenue home and the sum of $70,000 which should be retained by the trustees until after the determination of the suit. We do not understand the decree to mean that the respondent was limited thereby to proof of the precise contract alleged in her original complaint or be denied a recovery. To so hold, and thereby defeat what we believe to be a just demand, would not very well accord with sound reason.

The variance between the first complaint and the fourth complaint was not so great as to preclude the right of the respondent to recover, especially in view of the fact, as already stated, that the court in the decree required the trustees not to sell the Eldridge avenue home and to retain a certain sum of money to satisfy any judgment that might be rendered in the suit which was then pending.

The next question is whether it was necessary within the six months' period for the respondent to file a claim in the probate proceeding. In Perkins v. Allen, 133 Wash. 455, 234 P. 25, 27, it was held that Rem. Comp. Stat. § 1385, barring any contest of a will after notice given and the lapse of six months, did not bar an action for specific performance of an oral contract previously made by the decedent to devise certain property held by him at the time of his death. It was there said:

'It is asserted that because Getty's will was admitted to probate August 6, 1923, no petition contesting the validity of the will ever being filed in accordance with the provisions of this statute, the six-months' period having elapsed, the rights of respondents are barred. Horton v. Barto, 57 Wash. 477, 107 P. 191, 135 Am. St. Rep. 999; State ex rel. Wood v. Superior Court, 76 Wash. 27, 135 P. 494; In re Hoscheid's Estate, 78 Wash. 309, 139 P. 61, are cases cited to sustain this contention.

'But this is not a contest of the later will. The fact that it has been admitted to probate as a last will and testament of decedent does not bar an action for specific performance of a contract previously entered into between decedent and others which he had failed to perform.

"Where a party for a valid consideration has agreed to make a specific devise in his last will and testament in favor of another person, and dies without having done so, but has made a different will, this last will can not be refused probate. The probate court has no jurisdiction to determine or enforce agreements to make wills. Equity, however, will declare the executor or devisees under the will to be trustees for the performance

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