White v. Smith

• Citation: 253 P. 849,43 Idaho 354
• Parties: MABEL MCCLAIN WHITE, Respondent, v. WILLIAM C. SMITH, as Administrator of the Estate of WILLIAM PETERSON, Deceased, et al., Appellants
• Decision Date: 13 December 1926
• Court: United States State Supreme Court of Idaho

253 P. 849

43 Idaho 354

MABEL MCCLAIN WHITE, Respondent, v. WILLIAM C. SMITH, as Administrator of the Estate of WILLIAM PETERSON, Deceased, et al., Appellants

Supreme Court of Idaho

December 13, 1926

SPECIFIC PERFORMANCE-ORAL CONTRACT TO LEAVE PROPERTY-PART PERFORMANCE BY PROMISEE-CONSIDERATION-EVIDENCE-FINDINGS-DECREE OF DISTRIBUTION NOT CONCLUSIVE AS TO THIRD PERSON.

1. It is unnecessary to pass on assignment of error in allowing plaintiff to testify to making of oral contract with deceased, in view of correct finding, in effect sustaining the objection to the testimony admitted under reserved ruling, that the evidence was sufficient to sustain the court's finding of the contract, independent of such testimony.

2. It is enough to take out of the statute of frauds oral contract to leave property on death of promisor that promisee performed her part.

3. Oral contract to leave property on death of promisor was pleaded and proved with sufficient certainty and definiteness for specific performance, as one by which promisee was to go and live with promisor for the future as his child.

4. Evidence, in action for specific performance of oral contract to leave property on death of promisor, held to support findings of performance by promisee of her part.

5. Evidence, in action for specific performance of oral contract to leave property on death of promisor, held to support finding that any will so doing was lost or destroyed before promisor's death.

6. Decree of distribution of estate, which C. S., sec. 7730 declares conclusive as to rights of heirs, legatees or devisees, does not adjudicate title as against third person and so does not prevent action by one belonging to neither of enumerated classes for specific performance of deceased's contract to will.

7. Evidence, in action for specific performance of deceased's contract to leave property at his death, held to sustain finding that he and his relatives were unaware of each other's continued existence.

8. For child who for seven years had lived with a man and his wife till they separated and were divorced to then go and live with the man as his child, instead of with the woman, as she would have preferred, was such a consideration for his promise to leave her at his death his property as to make specific performance thereof proper.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action for specific performance of a contract to leave property upon death. Judgment for respondent. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent. Petition for rehearing denied.

John H Padgham and Richards & Haga, for Appellants.

The oral agreement claimed here must be proven with a degree of certainty which is utterly lacking in the evidence presented. (1 Moore on Facts, p. 152, vol. 2, p. 1291; vol. 3, p. 1304; Rice v. Rigley, 7 Idaho 115, 61 P. 290; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200; Gall v. Gall, 64 Hun, 601, 19 N.Y.S. 332; Wallace v. Rappeleye, 103 Ill. 229; Forsyth v. Heward, 41 Nev. 305, 170 P. 21; Monsen v. Monsen, 174 Cal. 97, 162 P. 90.)

Where oral contracts of the kind relied upon by respondent have not been declared void under the statute of frauds, the courts have uniformly viewed them with suspicion, for the lips of the deceased are closed by death. (In re Healy's Estate, 6 Cal. Unrep. 780, 66 P. 175; Russell v. Agar, 121 Cal. 396, 66 Am. St. 35, 53 P. 926; In re Hayden's Estate, 1 Cal.App. 75, 81 P. 668; Shahan v. Swan, 48 Ohio St. 25, 29 Am. St. 517, 26 N.E. 222.)

A parol agreement to leave property by will in order to be specifically enforced must be fair and equitable and founded on substantial consideration. (Anderson v. Anderson, 75 Kan. 117, 88 P. 743, 9 L. R. A., N. S., 229; Alexander v. Lewes, 104 Wash. 32, 175 P. 572; Baumann v. Kusian, 164 Cal. 582, 129 P. 986, 44 L. R. A., N. S., 756; Christin v. Clark, 36 Cal.App. 714, 173 P. 109; Kurtz v. De Johnson, 42 Cal.App. 221, 183 P. 588.)

In order to obtain specific performance of a contract, there must be mutuality of obligation from the inception of the contract, and of remedy. (Hart v. Turner, 39 Idaho 50, 226 P. 282; Zaring v. Lavatta, 36 Idaho 459, 211 P. 557; Childs v. Reed, 34 Idaho 450, 202 P. 685; Moody v. Crane, 34 Idaho 103, 199 P. 652.)

An agreement to will or leave property upon death in consideration of services rendered will not be implied from the rendering of such services. (Walker v. Taylor, 28 Colo. 233, 64 P. 192, and cases cited; Ruble v. Richardson, 188 Cal. 150, 204 P. 572.)

"Contracts of this kind are generally not favored, and when oral must be supported by strong, clear, and satisfactory evidence; they must be based upon a valuable consideration; their terms must be reasonably certain as to subject matter, as to their stipulations, their purposes, their parties, and the circumstances under which they were made. Waterman on Specific Performance of Contracts, p. 52; 4 Pomeroy, Eq. Jur., sec. 1405." (Sanger v. Huguenel, 65 Mont. 236, 211 P. 349; Leadbetter v. Price, 103 Ore. 222, 202 P. 104; Blanc v. O'Connor, 167 Cal. 719, 141 P. 217; Bedal v. Johnson, 37 Idaho 359, 218 P. 641.)

Whitcomb, Cowen & Clark, for Respondent.

The contract alleged and proven in this case was a mutual and enforceable agreement and not within the statute of frauds prohibiting the enforcement of oral contracts. (Bedal v. Johnson, 37 Idaho 359, 218 P. 641; Burns v. Smith, 21 Mont. 251, 69 Am. St. 653, 53 P. 742; Steinberger v. Young, 175 Cal. 81, 165 P. 432; Furman v. Craine, 18 Cal.App. 41, 121 P. 1007; Van Natta v. Heywood, 57 Utah 376, 195 P. 192; Worden v. Worden, 96 Wash. 592, 165 P. 501; Dillon v. Gray, 87 Kan. 129, 123 P. 878; Kofka v. Rosicky, 41 Neb. 328, 43 Am. St. 685, 59 N.W. 788, 25 L. R. A. 207; Svanberg v. Fosseen, 75 Minn. 350, 74 Am. St. 490, 78 N.W. 4, 43 L. R. A. 427; Sharkey v. McDermott, 91 Mo. 647, 60 Am. Rep. 270, 4 S.W. 107; Wright v. Wright, 99 Mich. 170, 58 N.W. 54, 23 L. R. A. 196; Johnson v. Hubbell, 10 N.J. Eq. 332, 66 Am. Dec. 773; Godine v. Kidd, 64 Hun, 585, 19 N.Y.S. 335; Bless v. Blizzard, 86 Kan. 230, 120 P. 351.)

The evidence in this case was amply sufficient to sustain the contention of the plaintiff independently of her own testimony. (Brown v. Sutton, 129 U.S. 238, 9 S.Ct. 273, 32 L.Ed. 664; Steinberger v. Young, supra.)

It was in the power of the defendants either to produce the will of Mr. Peterson, explain its loss or destruction, or prove the contents in case of loss. They did neither of these things.

"The failure of a party to produce evidence in his power in elucidation of the subject matter in dispute raises a presumption against him." (Kirby v. Tallmadge, 160 U.S. 379, 16 S.Ct. 349, 40 L.Ed. 463, Ann. Cas. 1914A, p. 909; 10 R. C. L. 888, note 6; Runkle v. Burnham, 153 U.S. 216, 14 S.Ct. 837, 38 L.Ed. 694.)

GIVENS, J. Wm. E. Lee, C. J., and Budge and T. Bailey Lee, JJ., concur. Taylor, J., dissents.

OPINION

GIVENS, J.

This action was instituted by respondent against William C. Smith, administrator of the estate of William Peterson, deceased, and his legal heirs, for the specific performance of an alleged oral agreement whereby the deceased was to make provision for respondent to inherit all his property in consideration that she come and make her home with him. Shortly after her mother's death, in 1903, respondent, then being nine years old, went to live with the Petersons, where she lived until 1910, when the deceased and his wife separated and were divorced. Thereafter respondent made her home with the deceased until some time prior to his death in 1918. The only child of the Petersons died a short time prior to their divorce and the only remaining heirs are distant relatives. The court made and entered its decree appointing a commissioner and directed him to convey the real and personal property of the deceased, after payment of all debts, claims and expenses, to the respondent. The appeal is from this decree.

Appellants' first contention is that the court erred in permitting respondent to testify, over their objection, as to any matter or fact occurring prior to the death of the deceased, namely, to the making of the oral contract upon which the action was brought, and in denying appellants' motion to strike such testimony. Such testimony was admitted under a reserved ruling and the eighth finding of fact by the court is as follows:

"The court further finds that objection was made by the defendants to the admission of the testimony of the plaintiff in reference to the terms of the contract between herself and William Peterson, and the court refused to strike the same upon motion by the defendants, but the court finds that in the determination of this matter, that the evidence is sufficient to sustain the contract between the plaintiff and defendant, independent of the testimony of the plaintiff, and that the testimony, of the plaintiff in reference to other material matters is corroborated by other evidence, sufficient when taken by itself, to base the findings upon."

By reason of this finding of the court, which in effect sustained the objection to such testimony, and the conclusion reached herein it is unnecessary to pass upon such assignments of error.

Appellants also contend that there is not sufficient performance to take the alleged oral contract out of the operation of the statute of frauds. As said in Bedal v. Johnson, 37 Idaho 359, at 375, 218 P. 641: "We believe that the weight of authority supports the view that an oral contract to leave property to another on the death of the promisor does not come within the inhibition of the statute of frauds where there has been part performance thereof on the part of the promisee and the...