Walker v. Calloway

• Decision Date: 27 September 1950
• Citation: 99 Cal.App.2d 675,222 P.2d 455
• Court: California Court of Appeals Court of Appeals
• Parties: WALKER v. CALLOWAY et al. Civ. 17547.

Page 455

222 P.2d 455

99 Cal.App.2d 675

WALKER v. CALLOWAY et al.

Civ. 17547.

District Court of Appeal, Second District, Division 3, California.

Sept. 27, 1950.

Edward S. Cooper and John Boyce-Smith, Los Angeles, for appellant.

Perry Bertram, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from a judgment dismissing the action after the sustaining of a demurrer to her amended complaint without leave to amend. The action is for specific performance of an oral agreement to will decedent's entire estate to plaintiff in consideration of services rendered decedent, and to establish a trust therein. Defendant, executor of the estate of Joe Wilmond, deceased, is sued individually and in his representative capacity. No claim was filed in the estate.

Decedent died testate January 6, 1948, leaving an estate of over $40,000 in the county of Los Angeles. His will, dated November 14, 1947, was admitted to probate on August 24, 1949. It appointed defendant executor of the estate, bequeathed $500 to plaintiff and, with the exception of several other bequests, bequeathed and devised the residue of the estate to defendant, a son of plaintiff and decedent. Plaintiff was the first wife of decedent. They were married in 1911, and had three children, including defendant. In 1915, decedent deserted plaintiff and never thereafter contributed anything to her support or to that of the children during their infancy. Decedent secured a divorce from plaintiff. Thereafter he contracted two other marriages, both of which culminated in divorce.

In addition to the foregoing, the amended complaint alleged: In May, 1947, decedent telephoned plaintiff at Dowagiac, Michigan, where she resided and was employed, and told her he was suffering from cancer and did not expect to live much longer, he realized he had treated her badly in deserting her and leaving her to support herself and the three young children, 'he had a nurse and did not need a servant or household services,' he offered and agreed that if plaintiff would leave Dowagiac and come to Los Angeles 'and give him her companionship and affection' and 'solace his remaining days,' he would leave his entire estate to her by will upon his death. Leaving Dowagiac 'meant uprooting her [plaintiff's] whole plan of life at an advanced age, at great sacrifice of her personal comfort, peace of mind and security,' but in reliance upon decedent's promise and at his special instance and request, plaintiff abandoned 'her residence, occupation and home ties and associations' in Dowagiac and on September 22, 1947, traveled 'about 2000 miles to strange surroundings, at an advanced age, to Los Angeles, California.' Thereafter and up to the time of decedent's death on January 6, 1948, she gave decedent 'the solace of her companionship, affectionate care and tender ministration.' She would not have left Michigan and come to Los Angeles if decedent had not induced her to do so by his promise to leave her his property and estate by will. Pursuant to this agreement decedent executed a will in which practically all of his property was left to plaintiff (a copy of the instrument which is signed by decedent and the subscribing witnesses is attached to the complaint as an exhibit). Subsequent to the execution of this will, defendant fraudulently procured decedent to change his will and execute the will admitted to probate. The execution of the latter will was a fraud upon plaintiff's rights and a breach of decedent's agreement. Defendant holds the estate as trustee for the use and benefit of plaintiff by reason of the agreement and performance on her part. Although the agreement is not in writing, plaintiff fully performed the agreement on her part and 'changed her position to her great detriment * * * in an amount which cannot be estimated in money, and she has no adequate remedy at law for breach of said agreement,' and defendant is equitably estopped from asserting the invalidity of the verbal agreement.

The question is whether plaintiff has pleaded sufficient facts to take the oral contract out of the statue of frauds.

Where a contract is within the statute of frauds, as it is here, Civ. Code, sec. 1624(6); Code Civ.Proc. sec. 1973(6), the mere rendition of services is not usually such a part performance of a verbal agreement as will relieve the contract from the operation of the statute, but 'if the services are of such a peculiar character that it is impossible to estimate their value by any pecuniary standard, and it is evident that the parties did not intend to measure them by any such standard, and if the plaintiff, after the performance of the services, could not be restored to the situation in which he was before the rendition of the services, it is such a part performance of the verbal agreement as will remove the contract from the rule, and equity, where other objections are not present, will decree specific performance. But in such cases the reason for the interposition of equity is quite obvious. Plaintiff has rendered service of extraordinary and exceptional character--such service as, in contemplation of the parties, was not to be compensated for in money, and, as in contemplation of law, cannot be compensated for in money. Therefore by no action at law could a plaintiff be restored to his original position. It would be in the nature of a fraud upon him to deny him any relief, and, the law failing by reason of its universality, equity, to promote justice, makes good its imperfections. Wat. Spec. Perf. Cont. § 41; Pom. Spec. Perf. § 114.' Owens v. McNally, 113 Cal. 444, 450, 45 P. 710, 712, 33 L.R.A. 369; McCabe v. Healy, 138 Cal. 81, 70 P. 1008; Anno. 69 A.L.R. 14, 120, et seq.; 106 A.L.R. 742, 756, et seq.

The services called for under the contract here were similar in nature to those in Barry v. Beamer, 8 Cal.App. 200, 96 P. 373, and Fowler v. Hansen, 48 Cal.App.2d 518, 120 P.2d 161, which were held to be of an unusual and exceptional character.

In Barry v. Beamer, supra [8 Cal.App. 200, 96 P. 373], the complaint alleged that decedent, 73 years of age, "was growing old and had not a great while to live, and he greatly desired in his declining years to have someone of his own blood near him to give to his old age the comforts of a home, to care for him in his sickness, to do his general housekeeping, to see to the cooking of his food, his washing and mending, and particularly to give to him that love and affection due from a sister to a brother." In holding there was such a change of position and relationship in reliance upon the oral contract and that the value of the services rendered were not subject to any pecuniary standard, the court said, 8 Cal.App. at page 209, 96 P. at page 377:

'As he [decedent] grew older, naturally life to him under such circumstances became irksome and wearisome, and with his advancing years he, naturally, the more and more yearned for the companionship and the tender care of the one who, of all living persons, could the more completely and satisfactorily fill the long-existent hiatus in an unhappy and then rapidly waning life. He earnestly and, it may be, pleadingly besought his only sister to dispose of her own home--a home hwere she had spent many of the years of her life in comfortable circumstances, and valued by her not more perhaps because of its intrinsic worth than because to her it was hallowed by pleasant memories and fond associations--and come to him, situated as he was, that he might be given the care and attention which he could under the circumstances only derive through the love and affection of a sister. She not alone complied with his request to live with and take care of him, but turned over to him all her means to be used in his business. * * * She rescued him from a life of uncleanliness and misery and gave him comforts to which he had been unused, and when his last illness attacked him, she tenderly and affectionately cared for him, and thus minimized the sufferings of the last, expiring hours of his life. For five years, he declared, and well could he do so, 'he had lived like a white man.'

'Is there any possible money compensation equal to the service thus rendered and the sacrifices thus made by this sister? Could the plaintiff, under the circumstances disclosed by the record, be placed in statu quo by any known legal remedy? Why should not equity enforce such a contract as is shown here? The evidence shows an adequate consideration; that the contract is just and reasonable as to the parties against whom it is sought to be enforced; that there is no showing, nor an attempt at showing, that the plaintiff practiced fraud or undue influence in securing the contract; that it is certain and definite, * * * and its enforcement will not involve the invasion of the legal or equitable rights of an innocent third party.' See also to the same effect McCabe v. Healy, 138 Cal. 81, 70 P. 1008.

In Fowler v. Hansen, 48 Cal.App.2d 518, 120 P.2d 161, 163, plaintiff appealed from a judgment rendered on the pleadings and on a portion of the opening statement, in an action to compel specific performance of a contract to make a will and to impress a trust upon the estate of decedent. The complaint alleged that decedent promised to make a will giving plaintiff and his wife one-half of all her property provided they moved from Texas to Los Angeles and established a home for decedent's mother and 'care and provide for the mother and 'administer unto her welfare and wishes and render unto her love...