Ward v. Ward

• Court: Utah Supreme Court
• Writing for the Court: MOFFAT, Justice.
• Citation: Ward v. Ward, 96 Utah 263, 85 P.2d 635 (Utah 1938)
• Decision Date: 11 August 1938
• Docket Number: 5960
• Parties: WARD v. WARD

85 P.2d 635

96 Utah 263

WARD v. WARD

No. 5960

Supreme Court of Utah

August 11, 1938

Rehearing Denied December 19, 1938.

Appeal from District Court, First District, Box Elder County; E. E Pratt, Judge.

Suit by Julia E. Ward against J. Hyrum Ward, wherein one count sought to quiet title and another count was in ejectment, and wherein the defendant filed counterclaims. From an adverse judgment, the defendant appeals. Upon the death of the plaintiff, her personal representative was substituted as plaintiff.

JUDGMENT AFFIRMED.

D. N Straup, of Salt Lake City, and B. H. Jones, of Brigham, for appellant.

Thatcher & Young, of Ogden, for respondent.

MOFFAT Justice. FOLLAND, Chief Justice, WOLFE, Justice, concurring. HANSON, Justice, LARSON, Justice, dissenting.

OPINION

MOFFAT, Justice.

The plaintiff and respondent filed an original complaint in two counts. The first count is an action in the usual form to quiet title; the second count is in unlawful detainer or ejectment. The defendant and appellant filed an answer denying the allegations in both causes of action and as affirmative defenses and counterclaims set out in six counts matters of family history and ownership of the property in question before the death of defendant's father, conveyance to his mother, the execution of a so-called irrevocable will, his occupation and use of the home and farm lands in question at Willard City, Box Elder County, Utah, for a period of about 12 or 13 years, with some oral understanding between himself and his mother as to the terms and conditions upon which defendant proceeded.

The first question raised by appellant arises out of the filing of an amended complaint in the nature of an answer to the counterclaim and to conform with the proof. The ground upon which the ruling of the court is assailed is that the amended pleading constitutes a departure from the original complaint.

Pursuant to the allegations of the six counterclaims, among other things, defendant asked for specific performance of the alleged contract or will (to be discussed later) or, if specific performance were unavailing, he asked for a reasonable value for his services with an equitable lien upon the property. Plaintiff filed a reply alleging facts which she claimed sufficient to defeat defendant's asserted right to specific performance. Amendments were made and stipulations agreed to as the trial proceeded. During the introduction of the evidence, at a time when defendant had asked leave to amend, counsel for plaintiff stated at the time defendant amended his pleadings, that counsel for plaintiff desired that if it appeared necessary to amend later that such permission would be granted; that at that time it was agreed to. The record bears out the alleged understanding.

When the cause came on for argument the court indicated some doubt as to whether the relief asked for in the nature of rescission could be granted under the pleadings. Amendment was proposed and permitted. Appellant complains of this ruling on the ground of departure as indicated. We think appellant is not in position to urge the point successfully. In appellant's first affirmative defense and counterclaim, it is alleged "that the said plaintiff, by demanding the immediate possession of said premises and the institution of this action, has elected to rescind said partly executed family agreement." Equitable defenses are pleaded.

The trial court proceeded with the trial and both parties offered evidence in support of and in opposition to the issues as so accepted and presented without objection. In fact, all the matter relating to the whole situation was aired to the court and the court so considered the proposition. The appellant does not nor could he well contend that he was prejudiced, surprised or otherwise put to any disadvantage. The battle ground was of his own choosing. Whether the amendment was necessary may be doubted. The plaintiff was put in the position of pleading the pertinent facts by way of reply to defendant's counterclaim. In addition to that, the evidence was all before the court. Skola V. Merrill, 91 Utah 253, 64 P.2d 185; Straw V. Temple, 48 Utah 258, 159 P. 44. In any event, defendant was not prejudiced, the whole matter being before the court as it was, it was proper for the court to dispose of the issues presented under the circumstances. Utah Lead Co. V. Piute County, 92 Utah 1, 65 P.2d 1190.

The facts in the Utah Lead Case just cited are different from the instant case, but where an action is brought and equitable defenses and counterclaims are pleaded and the issues are tried as thus formed, although "technically, an allegation in a reply is to make issue with an answer or counterclaim and cannot initiate in whole or in part a cause of action" [page 1194 ] when the issue thus formed are tried there seems no way reasonably to dispose of the matter except for the court to completely dispose of the issues where there is no surprise, prejudice or error affecting substantial rights. Appellant's claim to an interest in the property in question arises, if at all, out of the terms of the will made at his request, if not actual dictation, by his mother, the respondent, now deceased, and for whom her personal representative has been substituted. The will, its provisions, the operation of the farm under an oral agreement, the alleged changed conditions, compensation and other items were injected by defendant in his answer and counterclaims. After the preliminary provisions and paragraphs of the will, the following provisions are found therein:

"IV. This will is made immediately after the death of my beloved husband, Joseph W. Ward, and in view of the fact that it is my desire, as well as the desire of my family, that my son J. H. Ward shall have all real estate, including the home, together with all personal property such as farm implements, machinery, cattle and horses, and all other personal property used in connection with said farm upon my death, and it being the desire of all of the family that he shall immediately return to Willard and take over the farm and manage the same for me during my lifetime and shall pay to the girls, or their issue, upon my death, a definite sum of money hereinafter set forth, which said sum has been agreed upon by all members of the family and is considered by all to be just and equitable in the premises.

"Now therefore, in consideration of my son J. H. Ward's return to Willard to operate the farm for me during my lifetime, I hereby give, devise and bequeath to my son J. H. Ward all of my real estate of which I may die possessed, as well as all personal property used in connection therewith, for the management of said farm, being everything excepting household goods, which will be hereinafter disposed of; provided however, that my son J. H. Ward shall pay to each of my daughters, Eliza E. Dial, Hazel Budge, Ada Dern and Eva Nelson, or to their issue, if either of said daughters are deceased, the sum of One Thousand Dollars ($ 1,000.00), which said payments shall be made to each at the rate of One Hundred Twenty-five Dollars ($ 125.00) per year to each daughter, and there shall be no interest on said deferred payments until maturity. If the payments are not made at maturity, then thereafter they shall draw interest at the rate of eight per cent per annum; provided, however, that my son J. H. Ward shall have the right to pay as much more, or all of the same at any shorter time that he may so desire.

"It is my intention and desire that the above bequest to my said son J. H. Ward shall be dependent upon his payment of the above sums to each of my daughters in the manner and form aforesaid and each of my daughters shall be given a lien upon said real estate for the amount she is entitled to, and in the event of the failure of my son to make said payments, then and in that event each of my daughters, or their heirs, shall have the right to foreclose their lien to the extent of their interest in said property.

"Should my son J. H. Ward desire not to accept the provisions under this will, then it is my desire that upon my death all of my property shall be divided equally between my children or their issue, in the event of the death of any of my said children. In the event of the death of my son J. H. Ward before me, then and in that event I desire that his issue shall take, under the terms of this will, the same as though he were still alive, and shall be governed by the same provisions hereinbefore made.

"V. In view of the fact that this will is being made in consideration of my son's caring for said property during my lifetime, I hereby declare this will to be and the same is irrevocable."

There is no other written document relating to the matter. All of the other evidence lies in parol. After hearing the evidence, the trial court construed and treated the will as an option contract, and determined: That the document gave the defendant (the son) no present interest in the property nor any by reason of the management thereof; that, under the oral agreement, he had been fully paid for service rendered; that, at most, it could not be more than an option for purchase after the death of the mother; and that, although by declaration nonrevocable, there was nothing binding upon the son, since, having assumed no obligation to exercise the alleged option, he could terminate his management arrangement at will.

Appellant submits a number of cases and argues that there was created an irrevocable trust. The cases submitted support the conclusions reached in each of the cases in finding a trust. Most of them were based upon either a conveyance constituting a part of the res or a continuing service not otherwise compensated for, sometimes...