Remele v. Hamilton

• Decision Date: 18 October 1954
• Docket Number: No. 5818,5818
• Citation: 78 Ariz. 45,275 P.2d 403
• Parties: William REMELE and Cecile Belding, his Guardian, Appellants, v. Vera Faye HAMILTON, Appellee.
• Court: Arizona Supreme Court

Page 403

275 P.2d 403

78 Ariz. 45

William REMELE and Cecile Belding, his Guardian, Appellants, v. Vera Faye HAMILTON, Appellee.

No. 5818.

Supreme Court of Arizona.

Oct. 18, 1954.

John W. Ross, Tucson, for appellants.

Udall & Udall, Tucson, for appellees.

PHELPS, Chief Justice.

Vera Faye Hamilton, referred to as plaintiff, brought this action in the Pima County Superior Court against William Remele and Cecile Belding, his guardian, referred to as defendants herein, to enjoin the defendants from interfering with the plaintiff's possession of a piece of property, the subject of this litigation, or from violating his contract with plaintiff by making it impossible for her to fully perform her part of said contract or from making a will devising said property to another in violation of his contract with plaintiff.

In 1939 the defendant William Remele and his brother Henry who were nearing 70, approached Miss Hamilton, a lifetime acquaintance and asked her to take up employment as their housekeeper at Bagley, Iowa. Miss Hamilton accepted their offer, moved into their home, and lived with them continuously thereafter. At first, William Remele agreed to pay her $3 per week and furnish room and board but later the case payment was increased to $4. Finally, however, in 1944 Remele stopped making these payments and thereafter Miss Hamilton was not remunerated for her services although the brothers gave her gifts of cash and bonds on special occasions such as birthdays and holidays.

During the course of her service with them both of them exacted a pledge from Miss Hamilton that she would remain with them 'always' and they assured her that she would be well repaid.

They moved to Tucson, Arizona, in 1945 and in February of 1947 William Remele purchased a home at 3444 South Lundy Avenue (the subject of this litigation) in Tucson, Arizona, where a permanent home was established. This home served as the residence of Miss Hamilton, William Remele and his brother Henry, who by this time had become partially paralyzed.

Soon after William purchased the Tucson home he made an oral statement or promise to Miss Hamilton, in substance, that the home was equally hers and that eventually it would be left to her, and that it was in payment for the services rendered and to be rendered in the future and for her promise to remain 'always' with the brothers. Miss Hamilton continued thereafter to live with defendant and his brother and to render services not only of a domestic nature but in caring for their ills.

On September 29, 1947, William Remele executed his last will and testament whereby his home was devised to Miss Hamilton. There was also incorporated in said will a devise to Cecile Belding, his niece, appellant herein, of a 240-acre farm located in Iowa of the value of approximately $60,000 and producing an annual income of approximately $3,000. Shortly thereafter Remele delivered a copy of this will to Miss Hamilton.

In October, 1949, while Remele was hospitalized, Henry Remele remained in the home under the care of Miss Hamilton until a few days prior to February 23, 1950, when he died. While William Remele was still in the hospital in January, 1950, Mrs. Belding, his niece, brought a guardianship proceeding in superior court and had him adjudged mentally incompetent and was appointed as guardian.

Upon William's release from the hospital Mrs. Belding took him into her home and cared for him with the help of a nurse. Miss Hamilton offered several times to take William back into his home and attend to his needs but Mrs. Belding refused to permit her to do so.

On January 15, 1951, Mrs. Belding demanded that Miss Hamilton remove herself from the William Remele home so that she could sell the property to pay debts owed by his estate for nurses' wages, fees for the guardian and attorney's fees. This action was then commenced by the plaintiff on May 21, 1951, to enjoin defendant from carrying out these purposes and preventing her from completing her contract with William Remele.

Judgment was rendered for plaintiff and against defendant enjoining him (1) from leasing, selling, or encumbering the property here involved; (2) from preventing plaintiff in holding herself in readiness to perform her oral contract with defendant; (3) from interfering with plaintiff's possession of said property and to share possession thereof with defendant when he desired to share such premises with her; (4) from making any will or testamentary instrument which would violate his contract with plaintiff and declaring such will to be void; and (5) provide for vesting of title to such property in plaintiff in the event defendant predeceased her. Defendant appeals.

Defendant has presented for our consideration a number of assignments of error which we will consider in the order presented.

It is first urged that under the provisions of section 23-105, A.C.A.1939, the court erred in permitting plaintiff and other witnesses to testify to conversations and statements made by William Remele constituting his part of the alleged oral agreement between him and plaintiff for the reason that Remele was incompetent to testify at the time of the trial.

This court has consistently held such statements to the admissible under the terms of the statute itself when the court requires the witness to testify and that overruling the objection to the admissibility to such evidence 'was equivalent to requiring the appellee to testify'. Davey v. Janson, 62 Ariz. 39, 153 P.2d 158, 161; Goldman v. Sotelo, 7 Ariz. 23, 60 P. 696. There are a number of other cases to the same effect which we do not deem necessary to cite.

Assignment No. 2 claims error in entering the judgment against defendants creating a trust in favor of plaintiff on the real estate here involved for the reason that the judgment rested on parol evidence. In other words, the contract being oral, violated the statute of frauds, A.C.A.1939, § 58-101. The answer is first, that the judgment does not impress a trust upon said property, it merely maintains the status quo of the parties under the oral agreement; second, the statute of frauds was not pleaded, Mallamo v. Hartman, 70 Ariz. 293, 219 P.2d 1039; and third, that it was not available to defendant for the reason that defendant had at that time fully performed his part of the contract with plaintiff by executing the will to her and that plaintiff had, at that time, fully performed her part of the contract except insofar as she had been prevented from performance by the guardian of William Remele. Under such circumstances the transaction was taken out of the statute of frauds. Condon v. Arizona Housing Corporation, 63 Ariz. 125, 160 P.2d 342.

The third assignment is that it was error to enter judgment enforcing the alleged oral agreement for the reason that such contract, if it existed, could not be fully performed until the death the defendant Remele. The instant action is not an action for specific performance of the oral agreement. As above stated, it is and action primarily to enjoin defendant from changing the status quo of the parties under the oral agreement which, if permitted, would make it impossible for plaintiff to fully perform her part of the contract during the life of defendant Remele. That an injunction will lie in such a case, see Pflugar v. Pultz, 43 N.J.Eq. 440, 11 A. 123, and Bird v. Pope, 73 Mich. 483, 41 N.W. 514. This is accomplished as pointed out in Eastood v. Eastwood, 167 Kan. 471, 207 P.2d 393, 399, in an equity proceeding known as a 'bill quia timet'. That case held that the attempted alienation of property which the owner had previously orally agreed to will to his nephew and wife in consideration of their promise to reside with him and perform personal services for him during his life would be enjoined where the person agreeing to render such personal services had so changed his position that he had no adequate remedy at law, and that the statute of frauds in such a case was not available as a defense to that cause of action. See also White v. Massee, 202 Iowa 1304, 211 N.W. 839, 66 A.L.R. 1434; 106 A.L.R. 760 and 7 A.L.R.2d 1181, et seq. See also 30 C.J.S., Equity, § 40 b., page 363, where the rule is stated as follows:

'b. Preventive Relief, Quia Timet

'Equity may entertain jurisdiction to prevent the commission of anticipated wrongs.

'A class of cases requiring special mention, where the jurisdiction depends chiefly or altogether on the necessity for relief obtainable only in equity, is that of bills, known as 'bills quia timet,' whose...