Smith v. Smith
| Citation | 272 P.2d 118,126 Cal.App.2d 194 |
| Parties | SMITH v. SMITH. Civ. 16000. |
| Decision Date | 23 June 1954 |
| Court | California Court of Appeals Court of Appeals |
Enrico Dell'osso, Oakland, for appellant.
Haley, Schenone & Tucker, Hayward, for respondent.
This is an action on an oral agreement to leave property to plaintiff in consideration of services to be rendered and in quantum meruit, instituted against the executor of the estate of one of the promisors. The court by order of May 20, 1953, sustained a demurrer to plaintiff's second amended complaint without leave to amend. Notice of appeal from said order was filed on July 10, 1953. On October 15, 1953, a judgment for defendant was entered on the demurrer sustained.
Since no appeal lies from an order sustaining demurrer, Taliaferro v. Wampler, 118 Cal.App.2d 391, 257 P.2d 674, we interpret the notice of appeal as intended to take an appeal from the judgment as that is what the parties have assumed.
The second amended complaint was in two counts. The first count alleged in substance that on or about October 14, 1918, John E. Geary and Mary E. Geary, husband and wife, were the owners of certain real and personal property in Alameda County, that they had no children and wished plaintiff, their nephew, who had lived with them since he was three years old and who was then approximately eighteen years old and completing his last year in high school, to assume the responsibility for the management, cultivation, planting, development and improvement of their property and for the management, direction, breeding, development and sale of live stock, milk and milk products from their herds of stock and that he should establish a residence of his own on their premises for that purpose as they would have had a son of their own do. That in return for said services John and Mary Geary would each make a will which would leave all of their property to the survivor of them and all remaining at the death of the survivor to plaintiff; moreover, plaintiff was to receive $200 per month as wages.
That plaintiff entered into this oral agreement and in reliance thereon gave up his plan for further education and a career in the field of business and banking, with knowledge of which plans his uncle and aunt had helped to finance his high school education, moved on their premises and performed all services in accordance with said agreement from October 14, 1918, until December 1, 1932. That appellant during that period expended $10,000 on the development and improvement of the property with the approval of the Gearys, who assured him that the oral agreement would be carried out and that he eventually would have all of the property.
That plaintiff's change of position was of great detriment to him and of great benefit to his uncle and aunt. That because of his close relationship to them the services rendered by him are not measurable by any money standard. That plaintiff has performed all that was required under said oral agreement. That the Gearys never repudiated the agreement or informed appellant that they did not intend to perform it. That in reliance on the agreement plaintiff did not commence action during the lifetime of either of them.
That John E. Geary died on October 20, 1949, leaving by his last will all his estate to Mary E. Geary. That Mary E. Geary died on January 27, 1952, leaving a last will which left all her estate to her husband and if he should predecease her to his nephews John Kerwin Smith and Leland Gary Smith and their mother Mary K. Smith, or the survivor or survivors of them in equal parts. That John Kerwin Smith qualified as executor of the estate of Mary E. Geary, deceased.
The prayer, among other things, is that the executor be ordered to specifically perform the agreement stated above, that he account for the rents and profits of the properties and that he and the beneficiaries under the will of Mary E. Geary be declared constructive trustees for the benefit of appellant.
The second count incorporates all the allegations of the first count and further alleges that the reasonable value of plaintiff's services and of the materials and supplies provided by him is $43,600, of which he did not receive any part, with prayer for that amount with interest.
Normally oral agreements to devise or bequeath any property or to make any provision for any person by will are unenforceable under the statute of frauds in the absence of a written memorandum thereof. Civil Code, § 1624, subd. 6; Code of Civil Procedure, § 1973, subd. 6. However, under special circumstances which cause an estoppel to assert the statute of frauds, quasi-specific enforcement of such an oral contract will be permitted on an equitable basis. Appellant concedes that 'To enforce an oral...
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