Perkins v. Allen

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: Perkins v. Allen, 133 Wash. 455, 234 P. 25 (Wash. 1925)
• Decision Date: 16 March 1925
• Docket Number: 18901.
• Parties: PERKINS et al. v. ALLEN et al.

234 P. 25

133 Wash. 455

PERKINS et al. v. ALLEN et al.

No. 18901.

Supreme Court of Washington

March 16, 1925

Department 2.

Appeal from Superior Court, King County; Ronald, Judge.

Suit by Robert T. Perkins and others against Georgia Verne Allen executrix of the estate of D. L. Getty, deceased, and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Lundin & Barto and Tucker, Hyland & Elvidge, all of Seattle, for appellants.

Robert D. Hamlin, of Seattle, for respondents.

HOLCOMB J.

A noticed motion by respondents to dismiss the appeal, passed by us to the consideration of the case on the merits, is now denied because of our determination on the merits.

The action is one to enforce specific performance of a verbal contract between the decedent and respondents to make a will, and to establish a trust upon the estate in favor of respondents. In their amended complaint respondents allege that on or about January 1, 1919, D. L. Getty entered into an oral agreement:

'* * * By the terms and conditions of which it was provided that the probate of the estate of decedent [referring to the deceased wife of D. L. Getty, whose estate was then about to be probated] should be carried on as if she died intestate, and D. L. Getty should serve as administrator thereof, and in the course of such proceedings all of the property, real and personal belonging to the said estate should be set off and awarded unto said D. L. Getty as his sole and separate property and estate, the said plaintiffs as heirs of decedent orally agreed to remise and release in said probate proceeding unto said D. L. Getty all right, title and interest acquired by them or either of them by reason of the said will or as heirs of the said decedent, and in consideration thereof the said D. L. Getty orally promised and agreed to hold in trust for the said plaintiffs the title to said premises for the period of his life, and thereafter the said real and personal property and all estate acquired by the said D. L. Getty should by will pass to and become the property of plaintiffs and further orally agreed to execute a valid will disposing of all of said estate as follows: One-fifth to plaintiff Eva Wivell, two-fifths to plaintiff R. F. Perkins, and two-fifths to plaintiff John L. Perkins.'

Upon the trial below, findings, conclusions, and a judgment were made for respondents. A motion for a new trial was unsuccessfully made, this appeal resulting.

D. L. Getty and Harriet E. Getty were married in 1896, and lived as husband and wife, without issue, until December 22, 1918, when Harriet E. Getty died, leaving as her only heirs her husband, D. L. Getty, a daughter, Eva Wivell, and two sons, Robert T. and John L. Perkins, the children being issue of a former marriage of herself. It appears that in 1903 D. L. Getty deeded to his wife a certain 40-acre tract of land in King county, which comprised 20 acres, the major portion of the property involved in the former probate proceeding of the deceased wife and in this proceeding. It would appear, therefore, that the 20 acres involved was the separate property of the deceased, Harriet E. Getty, at the time of her death. On July 19, 1915, Harriet E. Getty and D. L. Getty had both made their wills. The will of the wife purported to give a life estate in her property to D. L. Getty, with the remainder to her sons and daughter, the devise to her husband being as long as he lives, and after his death her estate to be divided as follows: Five per cent. to her daughter, and the balance equally to her two sons. D. L. Getty was a witness to the will of Harriet E. Getty, and, there not being two other witnesses, and he being a beneficiary named in the will, after her death the will was not filed for probate, but a petition was filed by D. L. Getty for letters of administration, which recited that the decedent left no will, the instrument filed with the petition being defective. The present attorney for respondents was the attorney for Getty when the petition for letters of administration upon the estate of his wife was filed. The superior court, in probate, made an order appointing Getty as administrator, which order found that Harriet E. Getty died intestate. Her estate was appraised by appraisers at $2,600. Thereafter, on March 20, 1919, D. L. Getty filed his petition to have all of his wife's estate of less than $3,000, set aside to him in lieu of homestead. On March 20, 1919, Eva Wivell, John L. Perkins, and Robert T. Perkins executed a receipt of a copy of the petition to set aside the property, as a homestead to D. L. Getty, and a release and consent to the entry of an order setting the property aside as petitioned. Due notice was given of the hearing on the petition, and on March 31, 1919, the court entered a decree awarding all of Harriet E. Getty's property to D. L. Getty absolutely, and the estate was thereupon settled and closed. On the same date (March 31, 1919), D. L. Getty executed a will leaving his property, one-fifth to Eva Wivell, two-fifths to Robert T. Perkins, and two-fifths to John L. Perkins. On January 12, 1920, D. L. Getty made another will leaving $150 to Eva Wivell, $25 to Robert T. Perkins, $25 to John L. Perkins, and distributing the remainder to the three daughters of John L. Perkins and to the brothers and sisters of D. L. Getty. Georgia Verne Allen was nominated, and, after his decease, qualified as his executrix.

One of the principal contentions of appellants is that the evidence in support of the alleged oral contract is not sufficiently definite, clear, and certain to justify the finding of the court that the oral contract was made. In view of the fact that 'cases of this kind are not favored, and when the promise rests in parol are even regarded with suspicion, and will not be enforced except upon the strongest evidence that it was founded upon a valuable consideration and deliberately entered into by the deceased' (Waterman, Specific Performance, § 41; Alexander v. Lewes, 104 Wash. 32, loc. cit. 39, 175 P. 572; we have examined the entire record with great care; but as was said in the above cited case:

'While not favored and rarely enforced upon oral proofs, the power to make a valid agreement to dispose of property by will in a particular case has long been recognized.'

We have also declared that such a will as is here asserted was contracted to be made was a mere will and revokable at pleasure, and was revoked by the execution of the subsequent will; yet the subsequent will...