O'Sullivan v. Simpson

• Decision Date: 12 December 1949
• Docket Number: No. 8890,8890
• Citation: 212 P.2d 435,123 Mont. 314
• Parties: O'SULLIVAN v. SIMPSON et al.
• Court: Montana Supreme Court

Page 435

212 P.2d 435

123 Mont. 314

O'SULLIVAN v. SIMPSON et al.

No. 8890.

Supreme Court of Montana.

Dec. 12, 1949.

As Amended Dec. 23, 1949.

Ralph J. Anderson, Helena, Albert C. Angstman, Helena, for appellant.

H. Leonard DeKalb, Lewistown, Oscar M. Ulsaker, Lewiston, Weymouth D. Symmes, Lewiston, for respondent.

METCALF, Justice.

Philipp Laux died testate on the 25th day of October, 1946. His daughter Katherine Simpson, is executrix of the estate. The entire estate was willed to his wife, Kathi Laux. This is an action by another daughter, Francisca O'Sullivan, against Katherine Simpson and Kathi Laux to compel specific performance of an oral agreement allegedly made by the deceased to bequeath and devise to the plaintiff one-ninth of all his property.

The action was tried before the court without a jury and judgment was granted to the defendants. The court made findings of fact and conclusions of law which included a finding that the services which the plaintiff claimed to have rendered to the deceased were not unique, extraordinary or peculiar as is necessary to furnish the consideration for a contract of this kind. The court also found that the alleged agreement set forth by the plaintiff as a basis for her claim was never made by the deceased and found all material issues in favor of the defendants and against the plaintiff.

Error is assigned for the entry of these findings of fact and for the making and entering of the court's judgment against the plaintiff. The chief contention of the plaintiff-appellant is that the court's findings and judgment are contrary to the evidence.

The principal witness on behalf of the plaintiff was Emmet O'Sullivan, an attorney residing at Harlowton and the husband of the plaintiff. His is the only testimony which substantiates the material allegations of the complaint relative to the making of an oral contract to will a part of the estate to the plaintiff. He testified that in May 1929 he and the plaintiff were in Lewistown to call upon Philipp Laux. According to O'Sullivan's testimony Laux informed the witness that he was anxious to form a corporation which would hold all of the decedent's property. The witness testified that Philipp Laux desired the plaintiff to act as one of the incorporators and directors of the corporation to be formed, Laux and his wife Kathi to act as the other stockholders and directors. The witness O'Sullivan was asked to draw up a deed transferring all of Philipp Laux's property to Mrs. Laux and the plaintiff. O'Sullivan told Laux that when he got back to Harlowton he would draw the deed and send it to him. Laux preferred that the deed be drawn immediately so the three of them went to the O'Sullivan home in Harlowton, Montana. Witness testified that on the way to Harlowton Laux said he did not want plaintiff to assume the responsibility or do all that work for nothing and that he wanted to protect her. Later on in the evening after they arrived in Harlowton, O'Sullivan testified that Philipp Laux again stated that he wanted the plaintiff adequately protected; that he wanted to make sure she was protected, and that the only way he knew of protecting her would be by taking care of her in his will. It was then that the witness alleges the agreement was made that the plaintiff would take the deed jointly with her mother for all the real estate belonging to Philipp Laux; that she would hold it in trust until the corporation was organized; that she would then convey it to the corporation; that she would employ an attorney for him to organize the corporation and take care of the filing of the corporation papers and do all the work necessary to get the corporation organized and the charter issued. The corporation was to have the capital value of $75,000, $67,100 worth of stock was to be issued, 335 shares of $100 par value to the plaintiff, 335 shares to defendant Kathi Laux, and one share to Philipp Laux. The plaintiff was to hold the stock certificates issued her in trust and when Laux wanted them back or demanded them back the plaintiff agreed to return them to him. In addition the plaintiff was to arrange for the filing fees with the secretary of state, revenue stamps on the stock certificates, and the counsel fee for organizing the corporation. In return the plaintiff was to receive such fractional portion of Laux's estate upon his death as would result if the estate were equally divided among the surviving children of Philipp and Kathi Laux. At the time of Philipp Laux's death there were nine children surviving. Therefore plaintiff would be entitled to an undivided one-ninth share in the estate.

That night, the witness testified, he prepared a deed to all Laux's real estate, conveying it jointly to Francisca O'Sullivan, the plaintiff, and Kathi Laux, and that Laux took the deed back to Lewistown with him, where it was recorded. A few days later it was returned to the witness O'Sullivan by the clerk and recorder of Fergus county. The articles of incorporation and the necessary by-laws were prepared, the minutes of the first meeting of the incorporators, the first meeting of the stockholders, and the first meeting of the directors were drafted and by-laws adopted. Mr. Philipp Laux, the deceased, was elected president, Kathi Laux vice-president, and the plaintiff secretary-treasurer. The plaintiff acted as secretary-treasurer of the corporation from the time it was organized in 1929 until some time in the latter part of 1936.

The alleged oral agreement of the deceased, Philipp Laux, to execute a will leaving a proportionate share of his property to the plaintiff, was made in the presence of plaintiff and her husband Emmet O'Sullivan. All the direct testimony as to this oral agreement is that of witness Emmet O'Sullivan. The plaintiff herself was prevented from testifying by virtue of subdivision 3 of section 10535, R.C.M.1935. The lips of Philipp Laux are sealed in death. It is the contention of the plaintiff that the trial court disregarded the uncontradicted testimony of Emmet O'Sullivan that the deceased at Harlowton in the presence of Emmet O'Sullivan and plaintiff had promised and agreed to execute a will leaving to the plaintiff a proportionate share of his estate in consideration of the services performed by the plaintiff in connection with the organization of this corporation. The plaintiff argues that where there is direct testimony in the record, uncontradicted by other direct testimony, the court is bound thereby and cannot render a decision contrary to such testimony.

Inasmuch as the plaintiff and her husband Emmet O'Sullivan were the only witnesses present at the time the alleged oral agreement was entered into there could be no direct evidence contradicting the witness's statement. However, there is evidence that discredits the testimony of the witness and there are circumstances in the record that directly contradict the testimony of Emmet O'Sullivan and the plaintiff. Defendant Kathi Laux testified that the corporation was formed because the witness Emmet O'Sullivan persuaded Philipp Laux to form a corporation in order to remove Laux's property from the risk of an attachment because of a personal judgment against him. She testified that when the corporation was formed it was her understanding that the plaintiff Francisca O'Sullivan and she, Kathi Laux, were each to have only one share of stock in the corporation and that the remaining stock was to be owned by the decedent.

Kathi Laux also said that it was the witness Emmet O'Sullivan's idea to have the property transferred to Francisca O'Sullivan and deeded by her to the corporation. There is testimony that Emmet O'Sullivan was paid for all the attorney fees and all the legal work that he performed for the decedent and that the plaintiff was reimbursed for the money that she allegedly advanced in connection with the formation of the corporation. This is in direct conflict to the testimony of Emmet O'Sullivan that he was never paid for his legal services and the testimony of the plaintiff that she was never reimbursed for the filing fees and the revenue stamps that she advanced. Witness Frank Carey testified that in 1936 the decedent first learned that 335 shares of the stock of the corporation were in the name of Francisca O'Sullivan. He said, 'This was a revelation to dad and I suggested to him that we immediately remedy the situation.' And it was at that time that Laux demanded that plaintiff surrender her certificates of stock.

It is the general rule that a trial court may not disregard uncontroverted credible evidence. Sylvain v. Page, 84 Mont. 424, 276 P. 16, 63 A.L.R. 528; Laundreville v. Mero, 86 Mont. 43, 281 P. 749, 69 A.L.R. 416. But this general rule is subject to many qualifications and extensions. 32 C.J.S., Evidence, Sec. 1038, page 1093 '* * * evidence which is not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable, cannot be arbitrarily or capriciously discredited, disregarded, or rejected, even though the witness is a party or interested * * *.' 32 C.J.S., Evidence, Sec. 1038, page 1089.

Jeffrey v. Trouse, 100 Mont. 538, 542, 50 P.2d 872, held that neither the jury, the trial court, nor this court on review of the proceedings had in lower court are bound to accept the unimpeached testimony of a witness that is so incredible and improbable as to repel common sense and reasonable belief.

In Quock Ting v. United States, 140 U.S. 417, 420, 11 S.Ct. 733, 734, 35 L.Ed. 501, the United States Supreme Court said: 'Undoubtedly, as a general rule, positive testimony as to a...