The plaintiff, Vaughn C. Estes, appeals from summary judgment granted to the defendants, Horace E. Smith, Byron H. Le-cates, Robert G. Russell and Duncan C. McArthur, who are thе personal representatives of the estate of Virginia E. Chilling-worth, by the Superior Court (Cumberland County). On appeal, plaintiff argues that the court erred in finding no genuine issue of material fact as to the existence of an oral contract to establish a testamentary trust. In addition plаintiff argues that the court erred in concluding that the action was barred by the Statute of Frauds. We find that no genuine issue of material fact existed with rеgard to the existence of an oral contract and affirm the summary judgment.
In his complaint, the plaintiff alleged that Mrs. Chillingworth promised to create a testamentary trust of which he would be the life beneficiary rather than make social security contributions for him, pay his withholding taxes or prоvide his health insurance. The plaintiff further alleged that in reliance on Mrs. Chillingworth’s promises and representations he remained in her employ even though she was not providing him with employee benefits. Ultimately, Mrs. Chillingworth’s last will created no trust at all for his benefit. Plaintiff’s complaint sought the imposition оf a constructive trust or, in the alternative, an award of money damages for breach of contract.
Defendants moved for summary judgment and submittеd in support of their motion, the plaintiff’s deposition, defendant Robert C. Russell’s deposition, copies of two earlier wills, the affidavit of defendant Horace E. Smith, and certified copies of relevant probate records. In opposition to that motion the plaintiff submitted only his own affidavit. The Superior Court agreed with defendants that an oral contract to establish a testamentary trust did not exist and that any action was bаrred by the Statute of Frauds. The Superior Court added, sua sponte, that the alleged contract would also be against public policy. From this judgment plaintiff aрpeals.
On a motion for summary judgment, where the plaintiff has the burden of proof on an essential issue at trial, the defendant may succeed if it is сlear that he would be entitled to a directed verdict at trial were the plaintiff to present nothing more than was before the court at thе summary judgment hearing. 2 Field, McKusick and Wroth,
Maine Civil Practice
§ 56.29 at 36-37 (2d ed. 1970). The plaintiff does not dispute that he has the burden of proving the existence of the oral contrаct beyond all reasonable doubt.
See Brickley v. Leonard,
The facts before the Superior Court viewed in the light most favorable to the plaintiff,
see Lidstone v. Green,
From mid-December, 1974, to March, 1975, Mrs. Chillingworth asked the plaintiff to acсompany her to her residence in Hawaii and manage the property. The plaintiff agreed and Mrs. Chillingworth provided him with plane tickets, roоm and board and paid him $300 a month. The plaintiffs responsibilities included nursing care of Mrs. Chillingworth, shopping, cooking and maintaining the grounds. The plaintiff asked Mrs. Chillingworth if she would pay his health insurance, social security and unemployment taxes. Mrs. Chillingworth discussed this possible arrangement with her accountant and thеn refused the plaintiffs request. She continued to treat him as an independent contractor.
From June to December, 1975, the plaintiff returned to Maine and provided nursing services, maintenance, cooking, painting and shopping services for Mrs. Chilling-worth for $800 a month. Again the plaintiff requested to bе treated as an employee rather than an independent contractor so that Mrs. Chillingworth would pay withholding taxes. Again Mrs. Chillingworth and her accountant refused his request.
In February, 1975, problems arose between Mrs. Chillingworth and the plaintiff, and he left her employ. However, in June, 1975, the plaintiff returned to work for Mrs. Chillingworth for $1,500 a month plus room and board. The plaintiffs salary was increased because Mrs. Chillingworth’s accountant advised her that it was bettеr to increase his salary than to pay his withholding taxes.
The plaintiff continuously worked for Mrs. Chillingworth until February, 1982, and was employed by her periodically until 1984. Shе increased his salary to $2,000 a month in 1980 and to $2,500 a month in 1983. Each year the subject of withholding taxes was discussed, and each year, on the advice оf her accountant, Mrs. Chilling-worth refused to change the plaintiffs employment status.
From June, 1975 until February, 1982, the plaintiff paid his own social security taxes, income taxes and health benefits. From 1974 to 1984 the plaintiff reported all receipts from Mrs. Chillingworth as income from self-employment.
In January, 1984, the plaintiff herniated two discs in his back lifting Mrs. Chilling-worth from the bed. After January 1984, the plaintiff occasionally worked and spent time with Mrs. Chillingworth without compensation.
Mrs. Chillingwоrth first discussed establishing a testamentary trust for the plaintiff in 1981. On March 12, 1984, Mrs. Chillingworth executed a will in which she established a testamentary trust. Her accountant explained to the plaintiff that he was named in a trust that would benefit him during his lifetime and at his death the corpus would go to the plaintiffs daughter, Marianne. Mrs. Chillingworth еxplained that she felt Marianne had suffered from her father’s absence while he was in Mrs. Chillingworth’s employ. She told the plaintiff that this trust would take carе of him and his daughter and was better than social security. Mrs. Chillingworth never gave him any written statement relative to the trust.
Later, in 1984, Mrs. Chillingworth instructed her attorney to delete from her will the provision for a testamentary trust. She explained that the plaintiff had refused to perform certain services, exhibited a disregard for her health and was drinking too much. After Mrs. Chillingworth died on October 7, 1984, the plaintiff learned she had omitted the testamentary trust from a
A contract to devise property, as with any other contract, requires an offer, acceptance and consideration.
See Fahringer v. Estate of Strine,
Since we affirm the summary judgment on the grounds that an oral contract did not exist, it is unnecessary for us to address the other issues. 1
The entry is:
Judgment affirmed.
All concurring.
Notes
. We do note, however, that the trial court should not have introduced, sua sponte, the issue of illegality of the contract when illegality had not been pleaded as an affirmative defense as was required of the defendants by M.R.Civ.P. 8(c).