Potter v. Bland

• Decision Date: 13 October 1955
• Citation: 288 P.2d 569,136 Cal.App.2d 125
• Parties: John L. POTTER, Plaintiff and Respondent, v. Marguerite BLAND, as executrix of the Last Will and Testament of Sarah Williams, Deceased; and Rena Suddeth, Defendants and Appellants. Civ. 16183.
• Court: California Court of Appeals Court of Appeals

Page 569

288 P.2d 569

136 Cal.App.2d 125

John L. POTTER, Plaintiff and Respondent, v. Marguerite BLAND, as executrix of the Last Will and Testament of Sarah Williams, Deceased; and Rena Suddeth, Defendants and Appellants.

Civ. 16183.

District Court of Appeal, First District, Division 1, California.

Oct. 13, 1955.

McDougall & Fairfax, Palo Alto, for appellants.

Crist, Peters & Donegan, John M. Donegan, Palo Alto, for respondent.

BRAY, Justice.

In an action for quasi specific performance of a contract, allegedly a written one, judgment was entered decreeing that defendants held certain real property as constructive trustees for plaintiff's benefit, and ordering defendants to convey said property to plaintiff.

Questions Presented.

1. We the memorandum sufficient under the statute of frauds?

2. Estoppel to assert the statute of frauds.

3. Was plaintiff incompetent to testify under the so-called 'Deadman's Statute', Code Civ.Proc. § 1880(3) and should a claim have been filed against the estate under section 707, Probate Code?

4. Statute of limitations.

5. Is equitable relief proper?

6. Is plaintiff entitled to more than half of the estate?

Evidence.

Plaintiff is the nephew of testatrix Sarah Williams. Defendant Suddeth is the sole beneficiary of her will. ¹ Testatrix raised plaintiff from age 3 until he went out on his own. In 1932, plaintiff was living in Chicago but visited testatrix in Palo Alto. She suggested that they buy a house together but stated that she had no money. Plaintiff gave her $300 for the down payment. She then told plaintiff she would will the lot to him and his sister if he would help her with the purchase price. He agreed. The total purchase price was something like $2,700 or $3,000. Plaintiff made many of the payments on the house (the monthly payments were about $15.46) and frequently sent money to testatrix. Between 1932 and 1944 plaintiff gave more than $2,000 for the payments on the house. Testatrix lived in it (plaintiff never did), renting portions of it, the rent money being paid to her. Testatrix told plaintiff the house would be given to him and his sister by will. Plaintiff treated testatrix as his own mother and did everything he could in order to make her life comfortable. She was suffering with eye trouble and diabetes. She decided that since plaintiff had put so much money into the property she would deed it to him. This she did by gift deed dated May 3, 1944. Later that year she told plaintiff she wanted the property back in her name, saying, 'I am going to leave it to you by will, anyway. What is the difference?' Testatrix told her minister that there had been a little misunderstanding 'between the negotiation of the papers between' her and plaintiff and she wanted the minister to have her attorney get the property back in her name on her promise to make a will leaving it to plaintiff and his sister. She stated that plaintiff had helped in paying for the house. The minister then went to the attorney and informed him what testatrix had said. Testatrix signed a letter to the attorney, written for her by the minister, to the effect that she had not intended to give plaintiff control and possession of her property in her lifetime but intended it to go to him and his sister by will. She instructed him to 'make out necessary papers to have it deeded back to me, and make out my will to them.' The attorney wrote plaintiff stating that testatrix' minister had informed him that testatrix had not intended him to have control of the property but that she had understood that plaintiff was to fix papers so as to leave her control and upon her death the property was to go to plaintiff and his sister. He then suggested that plaintiff deed the property back to her 'on the agreement that she would make a will leaving one-half of it to you and to Lilly Simmons.' This agreement, he wrote, would be enforceable in court. Plaintiff was agreeable to this arrangement. The attorney then drew a will leaving her estate to plaintiff and his sister. At the end of the will, after the attestation clause, the attorney inserted the following: 'I agree to leave my property upon my death as provided in this will.' Testatrix executed the will and signed this statement August 14, 1944. The minister was one of the witnesses. Thereupon the attorney sent to plaintiff a deed of the Palo Alto property to be executed by him and a copy of the will and agreement, saying that he was enclosing 'a copy of her will and her agreement to leave her property as provided in the will.' Plaintiff executed and returned the deed, relying on testatrix' agreement as stated by the attorney and expressed by the writing. Bertha Smith, a close friend of testatrix, testified that after the death of Lillie Summers, testatrix told her she wanted plaintiff to have the property because he had put as much money in it as, if not more than, she had.

Defendant Bland, the executrix, testified that testatrix never referred to the property as belonging to anyone but herself. In 1945 testatrix told her that plaintiff had induced her to deed the property to him upon his promise that he would put her in a nice home or hospital to be cared for. Instead, testatrix had found out he intended to put her in the county hospital. From that time on testatrix had no use for him.

It is obvious that except as affected by the determination of the questions of law hearafter discussed, there was ample evidence to support the court's finding of an agreement to will the property to plaintiff and his sister.

1. Statute of Frauds.

Section 1624, subdivision 6, Civil Code, provides that an agreement to devise or bequeath property is invalid unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged. Section 1973, Code of Civil Procedure, is to the same effect.

The test of the memorandum is set forth in Ellis v. Klaff, 96 Cal.App.2d 471, 476-477, 216 P.2d 15, 19: 'To be sufficient, the required writing must be one 'which states with reasonable certainty, (a) each party to the contract * * * and (b) the land, goods or other subject-matter to which the contract relates, and (c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.' Restatement, Contracts, sec. 207. Emphasis added.'

Let us apply this test to the memorandum here: (a) '[E]ach party to the contract * * *' It clearly appears that the promisor is Sarah Williams, the testatrix. The promisees are the persons mentioned in the will--plaintiff and his sister. It is elementary that a memorandum may include by reference another instrument. (See 12 Cal.Jur. 904.) (b) '[T]he land, goods or other subject-matter to which the contract relates * * *' That, too, is set forth in the will, made a part by reference, 'all of my estate, whether real, personal or mixed * * *' Practically the only estate testatrix had was the property in question. (c) '[T]he terms and conditions of all the promises * * * and by whom and to whom the promises are made.' In determining this question, it must be remembered that plaintiff's part in the performance of the contract had been fully executed. He had already done everything he was to do, namely, conveyed the property to her after having paid considerable sums on it. The only terms and conditions of the promises to be performed at the time the memorandum was signed, was the carrying out of the testatrix' promise to effectually devise the property to plaintiff and his sister. The person by whom the promise was made was testatrix, and the persons to whom it was made were plaintiff and his sister. Defendant contends that the memorandum must show the consideration for the promise. An agreement to leave by will may be combined with the will. See Norton v. Estate of Norton, 41 Cal.App. 614, 619, 183 P. 214. Some confusion has arisen in the interpretation of section 1624, Civil Code, in this respect due to the fact that its predecessor statute required that as to certain types of contracts the memorandum must express the consideration. Chapter 114, Stats.1850, pp. 266-267, provided that every contract for leasing for a longer period than one year, or for the sale of land, or any interest therein; every agreement that by its terms is not to be performed within one year; every special promise to answer for the debt, default or miscarriage of another; every promise made upon consideration of marriage except mutual promises to marry, were void unless there was a writing 'expressing the consideration' thereof. In 1872 this statute was superseded by the codes, expressly section 1624, Civil Code, and section 1973, Code of Civil Procedure, neither of which contained or now contains the words 'expressing the consideration' or any similar statement. In Rogers v. Schulenburg, 111 Cal. 281, 43 P. 899, 900, dealing with the guarantee of payment of a promissory note which guarantee did not express consideration, the court held that it was not necessary that the consideration be expressed in writing. It pointed out that section 1614, Civl Code, provided "A written instrument is presumptive evidence of a consideration" and that section 1615, Civil Code, provided "the burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it." The court distinguished Crooks v. Tully, 50 Cal. 254, where it was held that a contract to answer for the debt of another must show the consideration, by pointing out that that case was decided when the statute of 1850 above mentioned was in force, and stated that such requirement is no longer found in the codes, citing section 1624, Civil Code, and section 1973, Code of Civil Procedure. While in a sense 'the consideration' is one of the terms of a contract, there is no necessity for expressing it in the 'note or memorandum' thereof when the consideration has already been paid. In...