Sanger v. Huguenel
| Decision Date | 08 December 1922 |
| Docket Number | 4915. |
| Citation | 211 P. 349,65 Mont. 236 |
| Parties | SANGER v. HUGUENEL ET AL. |
| Court | Montana Supreme Court |
Commissioners' Opinion.
Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.
Action by Nora Coughlin Sanger, as administratrix of the estate of Leslie Sanger, deceased, against Sophie Huguenel and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Nolan & Donovan, George Bourquin, and Harlow Pease, all of Butte, for appellant.
Kremer Sanders & Kremer, N. A. Rotering, and J. A. Poore, all of Butte, for respondents.
Peter Sanger died testate on March 24, 1915. At the time of his death he was a resident of Silver Bow county. He bequeathed to his only child, Leslie, the issue of a former wife, $100 and all of the remainder of his estate was bequeathed to his widow, Louise Sanger. His will was duly probated and his estate distributed in accordance with the terms of the will. Louise Sanger died testate on March 8, 1918. By the terms of her will, Leslie Sanger was bequeathed the sum of $500 and some other personal property. All of the remainder of her estate was bequeathed to the defendants herein. This will was duly proved and admitted to probate on July 27, 1918. On October 3, 1918, Leslie Sanger died. Nora Coughlin Sanger, the plaintiff herein, was on May 3, 1919, duly appointed administratrix of his estate. The defendants herein are: (a) The executor of, and (b) the legatees under, the last will of Louise Sanger.
This action was commenced on July 21, 1919. Paragraph No. 7 of the complaint alleges in part as follows:
"On or about the 1st day of April, 1915, at Butte, Mont., the said Leslie Sanger and the said Louise Sanger mutually promised and agreed between themselves that he, the said Leslie Sanger, would refrain from appearing in said court and contesting said will (Peter Sanger's will) and that in consideration thereof she, the said Louise Sanger, deceased, would by her last will and testament, leave all of her own property and all property that she received under the said will of Peter Sanger, deceased, to said Leslie Sanger, now deceased; that the said Leslie Sanger, now deceased, relying upon the said promise of Louise Sanger, now deceased, did refrain from appearing in said court, and did not contest the said will of Peter Sanger, deceased, but instead allowed and permitted the said Louise Sanger, now deceased, to obtain and possess the property given her by said will, and also permitted her to administer said estate of Peter Sanger, deceased, as executrix; and fully kept and performed all the terms and conditions of the said agreement to be by him kept and performed; that, as appears from the said will of Louise Sanger, now deceased, said Louise Sanger, now deceased, disposed of her property otherwise and in disregard of her said promise and agreement; that at the time of said promise and agreement Louise Sanger, now deceased, was childless."
By the answers of the several defendants, the allegation of this paragraph relative to the making of any contract between Louise and Leslie Sanger are put in issue. The prayer of the complaint is, in substance, that the executor of the will of Louise Sanger be required, by an appropriate decree, to distribute all of the estate of Louise Sanger, after the payment of the expenses of the administration to the plaintiff as the administrator of the estate of Leslie Sanger.
A trial was had to the court without a jury. The trial court made findings of fact and drew therefrom its conclusions of law. To finding of fact No. 6, and to the conclusions of law, the appellant herein (plaintiff below) duly filed exceptions, which were overruled. Judgment favorable to defendants dismissing the action, followed. This appeal is from the judgment.
Finding No. 6 is as follows:
"That the contract alleged in plaintiff's complaint, to wit, that the said Leslie Sanger and the said Louise Sanger mutually promised and agreed between themselves that he, the said Leslie Sanger, would refrain from appearing in court and contesting the will of Peter Sanger, deceased, and that, in consideration thereof, she, the said Louise Sanger, would by her last will and testament, leave all of her own property and all property that she received under the will of Peter Sanger, deceased, to said Leslie Sanger, was never made or entered into; nor was any other contract or agreement entered into between said Louise Sanger and said Leslie Sanger whereby any part or portion of the estate of Peter Sanger, deceased, or any part or portion of the estate of Louise Sanger at the time of her death was to be by her willed, devised, or bequeathed to Leslie Sanger."
The conclusions of law are as follows:
In determining the weight to be given to testimony, it is necessary to consider, not only what is said, but also the manner of saying it. This principle is recognized by section 10508, Rev. Codes 1921, which provides in part as follows:
* * *"
The witnesses herein appeared before the trial judge and testified. He heard what each of them said, and saw how or the manner in which they said it. He observed their general appearance while testifying, their candor or lack of candor, their fairness or lack of fairness, and in arriving at its conclusions, the trial court also had before it the printed record of what was said by each of these witnesses. This court has before it only the printed record. Obviously the trial court is in a much better position to pass judgment upon the evidence than is this court; therefore, the rule, frequently announced by this court that the findings of the trial court will not be disturbed, unless the evidence clearly preponderates against such findings. Bosanatz v. Ostronich, 57 Mont. 197, 187 P. 1009; Boyd v. Huffine, 44 Mont. 306, 120 P. 228; Winslow v. Dundom, 46 Mont. 71, 125 P. 136; Noyes Estate v. Granite-Alaska Co. (Mont.) 210 P. 96. decided October 19, 1922, and not yet officially reported.
As above noted, Peter Sanger, by his will, devised all of his property, excepting $100, to his widow, Louise Sanger, the $100 being left to Leslie Sanger. Leslie Sanger was dissatisfied with the terms of the will and threatened to begin an action contesting the will. In order to prevent the bringing of this action, it is alleged that the contract set forth in paragraph 7 of the complaint was entered into. By this action a court of equity is asked to fasten a trust on the property belonging to the estate of Louise Sanger, which is in effect the enforcement of specific performance of the alleged contract. None of the terms of this contract were reduced to writing. Both parties to it have passed away. It is very generally held, both by the courts and text-writers, that one may make a valid agreement binding himself to dispose of his property in a particular way by last will and testament; that, in the absence of a statute requiring a contract of this nature to be in writing, such contract may be oral. However, courts will not make a contract for the parties but will, under certain circumstances, specifically enforce a contract or impress a trust upon certain property. This is done in order that the intention of the parties to a contract may be carried out, but the intention must clearly appear, for courts may not enter into the realm of speculation in an attempt to determine the intention of the contracting parties. It must, therefore, clearly appear what property was intended to be impressed with the trust and who the parties are who were intended as beneficiaries of such trust.
However, contracts of this kind are generally not favored, and when oral must be supported by strong, clear, and satisfactory evidence; they must be based upon a valuable consideration; their terms must be reasonably certain as to subject-matter, as to their stipulations, their purposes, their parties, and the circumstances under which they were made. Waterman on the Specific Performance of Contracts, p. 52; 4 Pomeroy, Eq. Juris. § 1405.
The reason for requiring this character of evidence in order to support a parol contract of this nature is obvious. If the rule were otherwise, the right of any one to do what he wills with his own would be in some doubt. Under subdivision 6 of section 8720 of the Revised Codes of 1921, it is provided as follows:
The general rule is announced in Cyc. as follows:
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