Price v. Wallace

242 F. 221 | 9th Cir. | 1917

HUNT, Circuit Judge

(after stating the facts as above). The District Court in a well-considered opinion has carefully stated’ the issues end with considerable detail quoted from and analyzed the material evidence introduced upon the trial. Price v. Wallace, 224 Fed. 576. There is, therefore, no necessity for us to restate the testimony at any length, and we shall not attempt to do so. The legal questions involved in the merits of the appeal are simple, and to the end that our review may go directly to the.points affecting the merits, we will dispose of the questions of practice submitted by appellee by formally overruling the objections to the assignment of errors and denying the motion to dismiss the appeal.

In very general language appellant assigned error because the Court denied the relief plaintiff prayed for. But in the brief hied by her counsel she states her position to be that a trust was constructed up - on foundations stated substantially as follows: (1) Smith’s agreement with the complainant after he expelled the husband and father, which agreement was modified when Smith engaged to marry the defendant; (2) upon a “correlative stipulation between Smith and the defendant”; (3) upon the ground of “equitable adoption”; and (4) because of “Smith’s total commitment,” by reason of which equity will compel the enforcement of the stand he took.

[1] We need not discuss the rule, thoroughly well established as it is, that a trust may he created and enforced where a filial relationship is actually assumed, or that a man may make a contract whereby he agrees to leave to one, even though she has not been legally adopted, a child’s share of his estate at his death, and that services and companionship will constitute valuable consideration for the promise of the man. Healey v. Simpson, 113 Mo. 340, 20 S. W. 881. Nor will we question the doctrine that a contract in parol may be made under which one may leave all his property to another, if she would leave her home and thereafter live with him and care for him. Owen v. McNally, 113 Cal. 444, 45 Pac. 710, 33 L. R. A. 369. But the authorities in support of the rule that equity will enforce such agreements are in accord in holding that the courts will not aid, unless it is clearly and satisfactorily shown that the agreement relied on was made, that it was clear and specific in its terms, and that by enforcing it the true intent of the parties is being carried out. Rogers v. Schlotterback, 167 Cal. 35, 138 Pac. 728

It was evidently upon this theory that the judge of the District Court proceeded, and after stating the facts and quoting verbatim important parts of the testimony of complainant and of her witnesses, said:

“Upon the whole, it is clear to my mind that the plaintiff has failed to establish, either the alleged first or the modified agreement by such clear and convincing proof as is required for the substantiation of parol agreements of the kind. And as to the alleged trust agreement with the defendant, the clear preponderance of the evidence is against the plaintiff’s contention.”

[2] It being, therefore, in respect to the existence of the agreements or arrangements, original and modified, relied upon, that appellant failed in the court below, we have given very careful attention to the evidence bearing upon that same fundamental ground, and in doing so have weighed the evidence of Mrs. Price and considered it by itself, as well as in connection with the other evidence offered by her, and with the acts and expressions by letters and otherwise of Mr. Smith, and with the evidence introduced by the defendant, including that of Mrs. Wallace herself, and of Mrs. Jessie Carey Smith. Extended quotations from the record would but 'serve to affirm the views of the District Court. The direct testimony of the plaintiff, to the effect that Mr. Smith told her that, if she would give up her husband, everything that he had would be hers, and that she finally assented and told her stepfather to “go ahead and get the divorce,” is very much weakened by her further testimony that before the divorce was applied for she came to the conclusion that her husband- could not support her. Nor can we sustain the conclusion that plaintiff was impelled to sue for divorce under any agreement, made in 1900 or 1901, that Mr. Smith would leave his property to her. The circumstances developed, when considered with the testimony of Jessie Carey Smith, show that the plaintiff’s reason for suing for divorce was because her husband was in trouble again, and had been in prison after he left Minneapolis, and was regarded by plaintiff as unworthy.

We cannot disturb the conclusion of the District Court that no trust relationship between Mrs. Price and Mrs. Wallace was established. The positive denial by defendant of the statement of the plaintiff that there was a conversation between them at Minneapolis, after the death of Smith, wherein defendant said that she would carry out the so-called modified agreement, which Mrs. Price said was made with her stepfather, is supported by many significant circumstances. For instance, there is the evidence that, before plaintiff married Price, Smith consulted plaintiff’s own father about what was best for the plaintiff and her children, and had an understanding with him that each would contribute $50 a month toward the support of the family in California, and that Smith did contribute to her support until she married Price, when he reduced his contribtuion to what he thought would help maintain.plaintiff’s children. The letter (quoted in the opinion of the District Court) of Smith to Wright, the uncle of appellant by marriage, in February, 1903, is also worthy of special mention. There is also the evidence of Mr. Lauderdale, a close friend of Smith, that Smith said he was displeased with plaintiff and intended to stop helping her, but would continue to do something for the children as long as they were in his home.

[3] As there was no issue tried of a legal adoption, or claim of right by inheritance as an adopted child, no error can be predicated upon the refusal of the court to make decision thereon.

In conclusion, our opinion is that plaintiff has failed to demonstrate that the District Court erred in its decision. Study of the record impresses upon us that there is a lack of strength in plaintiff’s case upon the most essential issue. We must therefore hold that it would be unjust to decree that Mr. Smith did not have the power to do with his property what he wished when he made the will in favor of the defendant.

The decree is affirmed.