*1 In the Matter ESTATE OF ORRIS,
William L. Deceased.
No. 16280.
Supreme Court Utah.
Nov. *2 City, of Salt Lake Utah
Wadsworth per- and friendship for his consideration the several past to over sonal services me prede- should in the years, and event estate; the remain- me, and cease to thereof, and be- I devise ing one-half University Medical Tulane queath to the School. of Hayes Allen Tibbals and Michael Z. H. ac- 1976, Orris became January, Dr. City, appel- Hayes, Tibbal Lake for & Salt appel- Hasper, the Bradley with quainted L. Bradley Hasper. lant near lant, Dr. Orris’ home who moved into Cowley Campbell, James Watkiss P. of Subsequently, May, end the of City, respondent Wayne for H. Salt Lake first, an wills. The two new Orris executed 1976, 11, left holographic will dated June but appellant, estate to the Dr. Orris’ entire WILKINS, Justice: charge monies, I my provided: “Of the appeal judgment This from a of is an H. my attorney, to Bradley Hasper pay to Court, allowing District County, Summit City, Lake Wayne Wadsworth of Salt Respondent Wayne the claim of H. Wads- $10,- amount, not to exceed any appropriate worth, Bar, member of the Utah a State 000, me.” legal services he has rendered Orris, of against the Estate of William L. 15, 1976, Dr. Orris executed September On Bradley Hasper which executor and will, estate leaving his entire new formal a appellant. omitting any refer- appellant, to the doctor, Orris, William L. a medical moved then (who was not respondent to the ence acquainted to became Utah in exe- had been informed that these wills Respon- about that time. cuted). to subsequently agreed dent Dr. Orris February Dr. Orris committed suicide services, exchange professional and did Septem- will The dated California. March, until left Dr. Orris the State 15, 1976, to probate was admitted ber Arizona, moving and then to Cali- first April appellant on California pro- no Although longer fornia. Dr. Orris Respon- appointed was executor. re- respondent, vided services to medical petition probate dent filed spondent perform legal continued to serv- Coun- District of Summit Court relating ices business property and appellant objection an ty, but after filed that Dr. Orris in Utah. Dr. Orris was probate of that petition for probate, the services, no never billed for these and made of counsel stipulation on dismissed payment for them time the services at the by appellant, petition On parties. were rendered. an order entered District Court later respondent sub- September On of the will dated allowing ancillary probate mitted Dr. Orris a draft a will which appointing Hasper September 17,1974, executed on October personal representative. ap- respondent. asserting appellant, delivered back claim with duly filed a executor, spe- pointed respondent as made an irrevocable will constituted that the 1974 inter- right cific to him of the testator’s bequest he had a contract under City, BLM near Park denied est in certain lands estate. one-half of the provided: and further filed claim, whereupon respondent of the claim rest, allowance petition for IV. and remainder Of residue Court, enforcement real, asking specific estate, District my personal or wheresoev- District intangible, of the claimed contract. mixed, tangible trial, one- Court, paragraph found situated, I devise after a bequeath er ante, constituted friend, Wayne IV of the H. my half thereof showing parties. the intent of the We thus contract and allowed binding, irrevocable claim, language ordering specific per- are limited to consideration of respondent’s con- IV itself. by requiring of the contract formance respon- the estate to veyance of one-half of IV is at language dent. ambiguous. It contains both testamen best *3 contract, claims there was no rest, language residue and tary —“Of contract, specific if there were a but that bequeath ...” remainder ... devise and proper remedy. was not the performance —and, language— contractual arguably, Further, any he claims contract was voida- the face “... in consideration for .. .”. In that finally ble and Orris voided evidence of the ambiguity of such extrinsic respondent, including certain evidence of allowed. normally intent would parties’ appellant’s deposition, was inadmissible as out, ante, no such is pointed But as evidence Statute, Dead Man’s barred the Utah here. admissible 78-24-2,1958, Ann. as amended. Utah Code type, In other cases of this the fact that a only We discuss the matter of contract as will made on later different terms from dispositive. that issue is contract has been held to con- the claimed meeting stitute evidence that
It is well settled that a will
and no contract.5 Without
of the minds
contract,
contain a
and thus one document
intent,
evidence of contractual
this
capacity.1 Although
serve in dual
defeat a
inconsistency
enough
has been
revocable,
will is
a contract within the will
inconsistency exists
claim of contract. Such
irrevocable,
is
and such a contract can be
here,
two wills after the
since Orris made
containing
enforced even
the will
though
inconsistent with the
1974 will which were
is revoked or not enforceable as a will.2
will.
terms of the earlier
determining
problem
contract
paragraph
question
alleged
IV of the will in
The terms of an
way
in the same
that neither
precise
contract must be resolved
in a
have
any
reasonably
as
about
misunderstand
making
party
that determination
putative contract. Thus:
them.6 The
drafted
criterion,
this
and we cannot
fails to meet
inquiry is limited to evidence of the
[t]he
was an
that there
enforceable contract
say
expressed
parties
intention of
IV
1974will.
embodied in
acts,
both,
only
words or
as it is
the words and conduct of the
that
militating against
finding
Further
a court can form
conclusion
any
as
question
is contractual
language
that the
their intention.3
testamentary is the rule
purely
rather than
ambiguous instru
language
rule
of an
general
is somewhat modified
that
strictly
this case
the Deadman’s
ment should be construed
because
Statute4
instrum
who drafted the
against
party
forbids the admission
extrinsic evi-
the draftsman is an attor-
purpose
for the
ent.7 Where
by respondent
dence
1953,
78-24-2,
Annotated,
Ward,
263,
Utah
4. Section
Code
1. Ward v.
96 Utah
Even applicable principles same is of certain true graph rather than testa- IV contractual of law. With deference appropriate mentary, we believe there no considera- view, that a contrary my judgment it is to support tion a contract. con- principles to the application correct of those performed tends that the services he for Dr. of the find- requires affirmation rise to give Orris between 1968 and the trial ings judgment of court. past obligation still enforceable at time signed, obliga- will was such if we look important It realize provides express tion consideration for the nomenclature, this through the forms and “promise” IV. The found rec- case is seen to be a contest to whether ord this view. does Bradley Hasper get entire estate L. *4 Wayne will or H. by reason of the 1976 that his reasons conduct and estate get Wadsworth will of the one-half that of Dr. there was a Orris shows contract, recit- of an executed as reason implied contract between them was in will. ed the 1974 Respondent points in out that he fact. exchanged professional firmly services kept It should be in mind that through from 1963 1968 and prerogative characterizes was it the trial court’s find “gratis.” However, such services as it is in on the basis of the evidence and legal connection with the services rendered inferences to be drawn there- reasonable from; by respondent for Dr. Orris after the latter that on it this Court’s appeal, left respondent Utah that seeks to establish and to duty respect prerogative, implied an assume those of the aspects contract.9 that he believed the inferences evidence and that he drew make an in implied To out fact findings therefrom which his contract what must be shown is “mutual judgment.1 intent by particular ... manifested acts opinion correctly The main that: states We attendant circumstances.”10 are “It is a will contain a well settled that acts convinced that such and circum contract, and thus one document serve in record appear stances to show the is revo capacity. Although in a dual an implied formation of contract. Friend cable, a the will is irrevoca contract within ship support appear and mutual to be the ble, and such contract can enforced even relationship hallmarks of the between Dr. containing it though the is revoked..." respondent, Orris and even after Dr. Orris “friendship” left the state. is men Indeed disagreement proposi- have no ques tioned of the in in IV tion that the terms of the contract should tion as bequest a basis of one-half of misun- clear that neither could Dr. Orris’ estate. the ut- derstand them.2 The statement of Costs the estate. Reversed. quoted significance this case IV the will that: of HALL, J., concurs. my “I and bequeath devise one-half [of J., STEWART, friendship concurs the result. in consideration his estate] Bybee, City, and Trust v. Salt Lake 8. See Co. 10.Gleason Continental (1957). (1937). P.2d P.2d Carnesecca, Utah, If an based 1. Carnesecca there were enforceable contract, implied on would be an fact there subsequent rely no on a need for express covering services. opinion. contract same 2. See main footnote See, on 1A Corbin Contracts death, past eventuality service to me over the ultimate of his personal one-half years.” several possess then whatever estate he should to Mr. promised paid to be This, simple, as I see ciear and perceive definite statement which I nei- The will was sent to Dr. Orris in Califor- Therefore, uncertainty ambiguity. ther nor intelligent, nia. He was an well-educated fully requirement. meets the above-stated practiced profession man who his time, many years. plenty He had and it Though ambiguity, I see no if it be as- one, time, appears there court plenty sumed the trial that he took properly cir- consider facts and deliberate upon the execution will. see, so, In doing cumstances. he could days, arranged After 27 its formal seen, sup- have appears to the situation presence execution others and an porting his conclusion that there was returned it to Utah.
executed contract. attempt to overturn the judgment, significant (as A fact in the main recited arguments Mr. as to cer- advances opinion) years is that for six after Dr. Orris legal propositions urges tain which he left Mr. Wadsworth had continued to upset findings. should the trial court’s perform legal relating prop- services considered evidence first is that the court erty and business Orris had Utah. which it should not have done because of From the recital in paragraph IV above “dead man’s statute.”3 It pro- the so-called quoted, and from the fact that in the will following persons disqual- vides that the are *5 11,1976, recited, dated June Dr. Orris in his testifying: ified handwriting, own that Mr. Wadsworth party any A to civil action ... when the amount, paid appropriate should be “an not adverse defends as the executor of party $10,000 to exceed for legal services he has any person any deceased ... as to state- me,” question rendered it is shown without ment or transaction with such de- that existed an Dr. obligation, there which person, ceased ... or matter of fact recognized, pay Orris to Mr. Wadsworth a whatever, which must have been equally money. substantial amount of knowledge of both the witness within the In awareness of this on the person and such ... deceased .... men, part prepared of both Mr. Wadsworth is one provides the statute which for Since the 1974 in which contained what was the of evidence which otherwise exclusion plan by effect a which Mr. of- Wadsworth truth, ascertaining it helpful be fered to settle accounts between them. At applied strictly.4 should be construed time, that Mr. way Wadsworth had no deposition of Mr. The introduction of knowing early that Dr. would meet an Orris that way prohibited by was in no and unfortunate death. of requir- Instead asserting a claim in statute. He is not then, ing a payment willing- indicated estate. adversary he is to the On which ness to abide two uncertainties: that of executor, his interest live, contrary, as the long how Dr. would Orris estate and he is defend- identified with the any he would have estate at all when he Wads- against the claim of proposed plain ing died. The will contained the the estate unequivocal upon commitment that the worth.5 Therefore, 78-24-2, it 3. Sec. with that of the estate itself. U.C.A.1953. executor himself would not be follows that the Maxfield, al., Sainsbury, disqualified. 4. et al. v. et further stated that the The Court par- Morrison v. Walker Legislature the term “adverse intended Trust ty” disqualify only witnesses who have to those particu- of that a direct interest the success to the interest of the estate. lar claim adverse Sainsbury, supra, In our case of Maxfield v. Carnesecca, also, supra, note See Carnesecca pointed note it was out that the statute did disqualify not as a witness a the suit to whose interest is favorable to and identical by acknowledging his debt his will there was Orris contends its application of that as to regard error and his commitment Wadsworth of Mr. Wadsworth. testimony statute to the payment. stated readily admitted and His counsel influ- undue question possible as to Wadsworth could not the court that Mr. be- Mr. Wadsworth upon ence Dr. Orris with testify as to conversations relationship de- attorney-client cause of the with his testimo- transactions Dr. Orris and justification serves attention.7 some carefully ny so limited. He testified com- from the presumption for such a arises had work only the fact that he done persons monly propensity known natural fact, appel- Orris. absence However, the to act in their own interest. brief, reply he states that “the
lant’s own its real sight not be lost fact should subject matter those conversations was arriving rational at a purpose is to assist in given, appellant not as both rules, with just As conclusion. so would be a clear conceded do good servant, poor master. but of the man’s statute.” violation dead Wherefore, indulged it should not However, under the strict construction of purpose. thwart that rigidity such statute,” a the “dead man’s “transaction” is rebut- presumption such Accordingly, the claimant and the does between deceased table; force it has persuasive whatever not preclude description of “services” ren- with all of the attendant weighed is to deceased, g., dered e. nursing, facts and circumstances. services, medical, or even for hospital, carpenter, instance, plumber simply such as a or a are various In this there the actual services that had been describing persuasive which well have been view, rendered. The sound finds one the fact An important trial court. in the under such adjudications executed, will was that at the time statutes, they preclude do moved long to Califor- since testimony of claimant services ren- nia, together were not dered in the absence deceased and opportunity for Wads- Mr. *6 personal partici- without his immediate degree or worth to exercise of duress deceased, pation. This is so if because the upon He was undue influence Dr. Orris. living, not contradict the fact that the reject accept prop- free completely claimant rendered such services.6 will and chose to osition contained
The
trial
record discloses
court
accept it.
carefully
correctly protected
the inter-
correctly
took the view
trial court
ests of the estate and of the
in his
that once it was established that Dr. Orris
Moreover,
rulings on
it is further
evidence.
agreement contained in the
had made the
that,
to be
whatever
observed
else
by
1974
thus become bound
evidence,
preju-
said
about
thereafter,
by
actions
him
unilateral
Mr. Hasper.
dice to the estate or to
by
persua-
whatever
purpose
whatever
controlling
dispute
because the
issue in
sion,
nor
that com-
could not disavow
avoid
contractual
validity
mitment.8
to Mr.
essential to
facts
trial
made
If the determinations
validity
clearly
incontestably
its
are
of ver-
presumptions
solemnly
shown
attested
court are accorded
Estate,
Stayton
6. Stayton
293
v.
Swan’s
P.2d
See In re
148 Kan.
81
1
Busse,
(1938);
Boettcher v.
Wash.2d
P.2d 682
Clodfelter,
(1954); King
v.
P.2d 368
Theatres,
Wash.App.
(1974);
re
fair and reasonable basis in the record to findings judgment.
would affirm.
MAUGHAN, J., concurs in the dissent of
CROCKETT, C. J. RHOADES, individually
Mildred and as
Administratrix of the Estate of Claude
Rhoades, deceased, Appel- Plaintiff and
lant, WRIGHT,
James C. known as James Wright, Wright
Clifford and Clifford Wright, wife,
and Essie Defendants Respondents.
No. 16246.
Supreme Court of Utah.
Nov. *7 Hackett,
9. Charlton v.