Minderman v. Perry

• Citation: 437 P.2d 407,103 Ariz. 91
• Decision Date: 21 February 1968
• Docket Number: No. 8592,8592
• Parties: Margaret A. Perry MINDERMAN, Individually and Margaret A. Perry Minderman, Administratrix of the Estate of Ted A. Perry, Appellant, v. Irma M. PERRY, Executrix of the Estate of Glen Perry and Irma M. Perry, Individually, Appellee.
• Court: Supreme Court of Arizona

Page 407

437 P.2d 407

103 Ariz. 91

Margaret A. Perry MINDERMAN, Individually and Margaret A. Perry Minderman, Administratrix of the Estate of Ted A. Perry, Appellant, v. Irma M. PERRY, Executrix of the Estate of Glen Perry and Irma M. Perry, Individually, Appellee.

No. 8592.

Supreme Court of Arizona, In Banc.

Feb. 21, 1968.

Dowdall, Harris & Brown, Tucson, James D. Winter, Phoenix, Steve Kosteck, Jr., Tucson, for appellant.

Kramer, Roche, Burch & Streich, Phoenix, Alpheus L. Favour, Prescott, for appellee.

BERNSTEIN, Justice.

This matter comes to us on appeal from a judgment rendered by the Superior Court of Yavapai County wherein the appellant had sought to impose a constructive trust based on an alleged breach of contract to make a will and to keep the same in effect.

Glen Perry, now deceased, and Margaret A. Perry Minderman, hereinafter referred to as Margaret, were married in 1930; acquired the Palo Verde Ranch in Pinal County in 1931. Ted, their only child, was born in 1933. They purchased a home in Tucson in 1939, and in 1940 were divorced in Pinal County. A property settlement agreement was entered into by Glen and Margaret and the court approved the agreement and found it provided a 'fair and equitable settlement' of the property rights of the parties.

The terms of the property settlement agreement pertinent to the controversy now before us were that Margaret was to receive the house in Tucson and a $7,000 mortgage on the real estate in Pinal County which Glen was to retain. Margaret was to have the care and custody of the son, Ted, except during the summer months and Glen was to be responsible for Ted's maintenance, support and education. The property settlement further provided:

'That they will, upon the execution of this Agreement, make their Wills, the first party giving and bequeathing to Ted A. Perry, the said minor child of the parties hereto, the said Realty Mortgage given to her by second party on the latter's real estate in Pinal County, Arizona, as of this date, or the proceeds thereof, and the second party giving, devising and bequeathing to said Ted A. Perry all of second party's property.'

Both Glen and Margaret further released and relinquished to each other and each other's heirs, executors, administrators and assigns all right or claim by way of inheritance, descent or community interest in and to the property of the other then owned or thereafter acquired by the other, and all other rights of whatsoever kind and nature growing out of their marriage relation. Glen executed his will in 1940 leaving all his estate to Ted as required by the property settlement.

In 1948 Glen married Irma M. Perry, the appellee. On January 27, 1958 the son, Ted, his wife and their only child were all killed in a plane crash. Ted died intestate, leaving his mother, Margaret, and his father, Glen, as his only heirs.

After Ted's death, Glen revoked his will and executed a new will which left essentially all of his property to Irma. In February, 1958 Glen and Irma sold the Palo Verde ranch for a substantial price and invested the proceeds in other property taking title in the name of Glen and Irma, husband and wife, as joint tenants with right of survivorship.

Glen died in April, 1962, his will was admitted to probate and Irma was appointed executrix. Margaret filed creditors' claims both in her own name and in her capacity as duly appointed administratrix of Ted's estate. Upon rejection of these creditors' claims Margaret instituted suit to impose a constructive trust based on an alleged breach of contract to make a will. This appeal is taken from the judgment rendered against her in that action.

Margaret poses three assignments of error. At her request the trial court made specific findings of fact and conclusions of law. Margaret first urges that the trial court's Conclusion of Law No. 5:

'5. The devise and bequest to Ted Perry which appeared in Glen Perry's then existing will lapsed upon the death of Ted Perry for the reason that Ted Perry was not survived by lineal descendants and the Anti-Lapse Statute (ARS 14--133) did not save such devise and bequest.'

was erroneous because the doctrine of lapse is a doctrine of the law of wills and is not applicable to a case involving rights created under a contract to make a will.

We agree. The issue as to the application of A.R.S. § 14--133 ¹ was not before the trial court nor is it before this court. This is an action for alleged breach of contract and not a will contest in probate. A contract to make a will is controlled by the same rules and principles as other contracts, Mullins v. Green, 143 W.Va. 888, 105 S.E.2d 542; Merchants National Bank of Mobile v. Cotnam, 250 Ala. 316, 34 So.2d 122.

'Once the contract has been entered into the relationship of the parties and the nature of the interest created should be analysed in terms of contract principles. Failure to adhere to this rule and the attempt in some quarters to treat the transaction as a testamentary, yet enforceable, arrangement is the source of much of the confusion so prevalent in this area.' * * *

'The substance of the thing agreed upon is the transfer of property to the promisee at the death of the promisor. The remedy granted by the courts seeks either to accomplish that result or to award damages for its failure. The fact that a will was the vehicle through which it was contemplated that the desired result would be achieved is merely incidental.' Contract to Devise or Bequeath as an Estate Planning Device, Bertel M. Sparks, 20 Mo.Law Rev. 1.

The trial court's judgment, however, did not rest solely on Conclusion of Law No. 5, supra. In keeping with our established rules, if the ultimate judgment was correct as a matter of law it will be sustained, Rule 61, Rules of Civil Procedure, 16 A.R.S., Collins v. Collins, 46 Ariz. 485, 52 P.2d 1169. A wrong reason for a correct ruling is not reversible error. Wigley v. Whitten, 78 Ariz. 88, 276 P.2d 517, opinion adhered to 78 Ariz. 224, 278 P.2d 412.

Margaret's second and third assignments of error are based on the court's Conclusions of Law Nos. 4 and 7:

'4. The duty to perform the mutual promises to will certain property to Ted Perry was discharged by the supervening impossibility resulting from the death of Ted Perry.'

'7. Margaret Perry Minderman is not entitled to have a constructive trust imposed upon any property which the defendant Irma M. Perry now holds, either in her own right or as Executrix of the Estate of Glen Perry.'

Margaret and Irma are in agreement that the basic issue in this case is the effect of the untimely death of Ted, before the death of his father, in respect to the contract to make a will provision of the property settlement agreement. The evidence is clear that Glen had fully complied with all provisions of the property settlement up to and through the time of Ted's death, including that of executing and maintaining a will for twenty years which devised and bequeathed all of his property to Ted.

Irma contends, and the trial court found that Ted's death constituted the happening of an unforeseen contingency which made it impossible for Margaret and Glen to perform their mutual promises to leave their property to Ted by will. Irma urges that the mutual promises were to will to Ted, personally, not his estate, his next of kin, and certainly not Margaret and Glen.

The doctrine of impossibility of performance dates back to the celebrated case of Taylor v. Caldwell, 3 Best & S. 826 (1863) wherein Caldwell was relieved of liability in damages for non-delivery of a music hall to Taylor because the hall had been destroyed by fire. Since that case the courts have grown increasingly liberal in their construing of what constitues 'impossibili ty' or frustration of purpose, see Corbin on Contracts, Discharge, Impossibility, § 1320. According to the American Law Institute's Restatement of Contracts, where performance of a promise becomes impossible because of facts which the promisor had no reason to anticipate and for the occurrence of which the promisor is not at fault his duty is discharged unless a contrary intention has been manifested; and, more specifically, where the existence of a specific person is essential to the performance of a promise the duty to perform that promise is discharged if the person is not in existence at the time for seasonal performance, unless a contrary intention is manifested or the contributing fault of the promisor causes the nonexistence, §§ 457, 460.

Margaret contends, however, that the death of a beneficiary of a contract to make a will does not constitute an impossibility of performance. For authority she cites In re Traub's Estate, 354 Mich. 263, 92 N.W.2d 480; Potter v. Bland, 136 Cal.App.2d 125, 288 P.2d 569; Guenin v. Lakin, 146 Cal.App.2d 855, 304 P.2d 157. We have read these three cases and find them readily distinguishable from the case at bar. In none of them is the doctrine of impossibility considered or discussed. Thus, they are neither authority for or against the applicability of this established doctrine of contract construction insofar as it may relate to contracts to make a will. Nor does either the Traub, Cuenin or Bland decisions stem from a situation arising out of a property settlement agreement adjudicated and approved by a court of competent jurisdiction. In all three of the decisions cited by Margaret the bargained for exchange was received by the promisor, who subsequently failed to carry out his promise to will. Such is not our case.

In the case before us the parties by separation agreement sought to (1) arrive at a complete property settlement (2) provide for the support, maintenance and education of their son (3) provide for Ted's inheritance through the making of wills 'upon the execution of this (property settlement) Agreement,' (4) each give complete release to the other. ²

Margaret has, long since, received all that she personally bargained for...