Wayman v. Miller

• Decision Date: 19 July 1938
• Docket Number: 26974.
• Court: Washington Supreme Court
• Parties: WAYMAN et al. v. MILLER et al.

81 P.2d 501

195 Wash. 457

WAYMAN et al. v. MILLER et al.

No. 26974.

Supreme Court of Washington

July 19, 1938

Department 2.

Appeal from Superior Court, Whitman County; Timothy A. Paul, Judge.

Action by Lewis A. Wayman against Ida R. Miller, as administratrix de bonis non of the estate of Samuel H. Breeze, deceased, and as administratrix of the estate of Elizabeth Breeze deceased, and others to establish a contract by which Samuel H. Breeze and Elizabeth Breeze, deceased, agreed to leave certain realty to plaintiff. Henry Breeze filed a cross-complaint. From a decree of dismissal, the plaintiff and the cross-complainant appeal.

Affirmed.

H. J Welty, of Colfax, for appellant Wayman.

Louis A. Dyar, of Waitsburg, for cross-appellant Breeze.

F. L Stotler, John D. Evans, and Hanna, Wilkinson & Evans, all of Colfax, and S.E. & H. G. King, of Walla Walla, for respondents.

BEALS, Justice.

During the year 1899, Samuel H. Breeze was a bachelor, and was residing on his quarter section of valuable farm land in Whitman county. His young nephew, Lewis A. Wayman, who had been residing in Illinois, joined his uncle in Whitman county during the month of March. Upon his arrival, Wayman took up his residence with his uncle, and worked in and about the farm, as a lad of that age would probably do.

In October, 1902, Samuel H. Breeze married Elizabeth Rogers. At the time of the marriage, Mr. Breeze owned the 160 acres of land upon which he had been living for some time. Mr. and Mrs. Breeze had no children, and lived simple and frugal lives, acquiring additional acreage in Whitman county sufficient to bring their holdings there to 735 acres, and also purchased a 340 acre farm in Walla Walla county. These tracts of land comprised the bulk of their wealth.

Mr Breeze died intestate in Walla Walla county, May 16, 1934, and Mrs. Breeze died intestate in the same county, October 14th following. Ida R. Breeze Miller was appointed administratrix of each estate, and is now acting as such.

Lewis A. Wayman instituted this action against Mrs. Miller, as administratrix of the two estates, and against many other persons named as heirs at law of Mr. or Mrs. Breeze, alleging in his complaint that he and Samuel H. Breeze, prior to the latter's marriage, had entered into an oral contract, by the terms of which Wayman was to remain with Mr. Breeze, and bear towards him the relation of a son, and that Mr. Breeze in turn would make a will and devise to his nephew the farm in Whitman county. The complaint further alleges that after the marriage of Mr. Breeze, he and his wife jointly made the same contract with plaintiff, who was to take the place of a child in the Breeze home, and remain with his uncle and aunt and care for them as long as they should live, both Mr. and Mrs. Breeze agreeing that plaintiff should receive the Whitman county property. Plaintiff also alleged that, although Mr. Breeze repeatedly promised to make a will in accordance with his agreement with plaintiff Mr. Breeze failed to do so, and died intestate. Plaintiff prayed for a decree establishing the contract which he claimed to have made with his uncle and aunt, and awarding him the 735 acre farm situated in Whitman county.

Thereafter one Henry Breeze, also a nephew of Samuel H. Breeze, filed in the action an answer and cross-complaint, alleging his relationship to Mr. Breeze, and that in the year 1886, Mr. Breeze, as a penniless youth, had come to the state of Washington, and for six or seven years thereafter had made his home with cross-complainant's parents, and had lived with them and been treated by them as a son; that Samuel H. Breeze had an affectionate regard for cross-complainant, Henry Breeze, and, realizing the great value of the kindness and services rendered to him by cross-complainant's parents, Samuel H. and Elizabeth Breeze agreed between themselves as to the testamentary disposition of their farm lands and other property, and agreed that the 340 acre farm in Walla Walla county should be by them devised to cross-complainant, Henry Breeze. He further alleged that Samuel H. Breeze died Before executing any will, but that Elizabeth Breeze, just prior to her death, executed a document which she termed her last will, by which she bequeathed the Walla Walla county land to Henry Breeze. It was further alleged that by reason of the facts alleged, a trust had arisen and become fixed upon the estates of Samuel H. and Elizabeth Breeze in favor of Henry Breeze, the prayer of the cross-complaint being that a decree be entered establishing such a trust as against the heirs of the two decedents and the administratrix of their estates.

The administratrix and many of the heirs appeared in the action, and denied the allegations contained both in the complaint and in the cross-complaint. The cause was tried to the court, and resulted in a decree dismissing both the complaint and the cross-complaint. From this decree, plaintiff, Lewis A. Wayman, and cross-complainant, Henry Breeze, have appealed. Each assigns error upon the denial of the relief which the parties respectively demanded. It was stipulated that all evidence should be considered in connection with the claims of both Lewis A. Wayman and Henry Breeze.

Much evidence was taken, and the trial court filed a comprehensive memorandum opinion. While it appears that both Mr. and Mrs. Breeze on several occasions discussed the matter of making wills, it appears that neither one ever executed a will. On one occasion, after her husband's death, Mrs. Breeze consulted a lawyer, apparently with the idea of preparing her will, and she thereafter, in her own hand, wrote out on note paper an informal document, as follows:

'My Last Will

'I would bequeath to L. A. Wayman and wife of Pullman, 540 acres of the Pullman ranch. The Place called the old Monlux place (Southwest of Pullman) to have the use of while they live then it goes to their heirs. And to Jacob S. Breeze of Irvington, Ill., (S. H. Breeze brother 200 joining the five hundred of which 160 was the old home of S. H. Breeze. To have the use of the 200 while he lives then to go to his heir (a daughter). * * *

'I would bequeath the ranch at Waitsburg called the Wagnor land 340 acres to Henry Breeze to have the use of while he lives then to go to his heirs. To Ida May Miller, 933 Alvarado Terrace, Walla Walla, 112 acres of the Ingles place to have the use of while she lives then to go to her [Note: The word 'heirs' was written but market out]. * * *

'The residue of the money if any to be divided among the mentioned heirs, marker must be put on the graves not costing less than one hundred apiece.

[Signed on margin] Elizabeth R. Breeze.'

The writing was admitted in evidence over respondents' objection, and we agree with the trial court that its wording and appearance show that it was intended to serve as a memorandum merely. Appellants do not contend that the document is entitled to probate as a will, but argue that it supports their respective contentions.

Appellant Wayman relies upon an alleged agreement which was first made with his uncle, and later renewed between himself and his uncle and aunt. In substance, he contends that it was agreed that he was to take the place of a child in the home, and was to remain with and care for his uncle and aunt as long as they should live, and perform toward them all the duties of a son, he to receive as compensation the Whitman county farm. He contends that the evidence shows that he performed his part of the agreement, and rendered a great deal of service on the farm, and that by reason of his having fully performed his part of the contract he is entitled to the decree prayed for in his complaint.

This court has many times held that such relief as that demanded by appellants will be granted in proper cases. McCullough v. McCullough, 153 Wash. 625, 280 P. 70; In re Krause's Estate, 173 Wash. 1, 21 P.2d 268. To obtain relief under such a contract, the claimant must establish the same by evidence which is clear, definite and certain, beyond all reasonable criticism. In the case of Henry v. Henry, 138 Wash. 284, 244 P. 686, in which a contract of the same nature was sought to be established, it is said (page 687):

'The evidence, to sustain such oral promises, we have said, must be conclusive, definite, certain, and beyond all legitimate controversy. * * * We are prepared to make, and are justified in making, a statement even more stringent than that, and to hold that one seeking to establish an oral contract, whereby property of the deceased is sought to be taken, must establish all the elements of the contract and a right to have it enforced beyond all reasonable doubt. Without such a rule, no estate of any considerable size is safe from claims that it has been devised and bequeathed by word of mouth.'

It is also true that the nature and value of the consideration for the promise to make some testamentary disposition is a matter to be largely determined by the person who promises to reward the same through a will. If the evidence shows beyond legitimate controversy that the agreement was made, in the absence of fraud or deceit, the value of the consideration for the promise, while still an element which may be considered, is not of controlling importance.

Claims to enforce alleged oral promises to bequeath or devise property by will are always by the court regarded with suspicion. This court, in the case of Alexander v. Lewes, 104 Mash. 32, 175 P. 572, referring to such litigation, said (page 575):

'Cases of this kind are not favored and, when the promise rests in parol, are even regarded with suspicion, and will not be enforced except upon the strongest evidence that it was founded upon a valuable consideration and

...