91 P. 667 | Cal. Ct. App. | 1907
The action is in equity to compel specific performance of a contract to make a certain testamentary disposition *154 of property. Two of the plaintiffs are children and the other two are daughters of a deceased child of James S. Stewart and Annie Stewart, decedents. All the other heirs, legatees and devisees of said Annie Stewart, deceased, are made defendants.
It appears from the complaint that said James S. Stewart, at the time of his death in 1870, left property, real and personal, of the value of $17,000. All claims against the estate did not exceed the sum of $1,000. In the same year Annie Stewart, widow of said James S. Stewart, was appointed administratrix of his estate and remained such until the administration of the estate was closed, April 8, 1893. All the estate of said James S. Stewart was community property. Some time in the year 1873 the said Annie Stewart, "for her better maintenance and support during her life, orally solicited and requested her said sons, John H. Stewart and Charles E. Stewart and her said daughter Elizabeth Reilay (nee Stewart), deceased, mother of said plaintiffs, Luella M. Reilay and Mabel S. Kellogg (nee Reilay), to deed, sell, assign and deliver to her all their and each of their shares and interests as heirs at law of their said father of, in and to their said father's estate, upon the oral promise, contract and agreement, in consideration therefor, that she the said Annie Stewart would use and enjoy the said property for her support and maintenance during her life, and would manage said property and invest the income, rents, issues and profits thereof and at her death she would leave the whole of said property or the residue thereof and all increase and accumulations thereof to her said ten children share and share alike and would make, execute and leave in existence at her death a last will and testament wherein and by the terms of which she would give, demise and bequeath to her said ten children, share and share alike, or to the heirs of any deceased child by right of representation all the property of which she might die seised or possessed." The said John H. Stewart and Charles E. Stewart and Elizabeth Reilay accepted said proposition and agreed to do as requested by their mother upon the terms proposed by her. Thereafter on or about November 22, 1873, in compliance with their part of the agreement, they transferred to their said mother all their interest in the personal estate of their father and in conjunction with the other children and in pursuance of said agreement they executed and delivered to *155 their said mother a conveyance of their interest in the real property of their father, situated in Sutter county, California, and on or about June 5, 1883, in further compliance with said contract and in full consummation thereof and in conjunction with their mother and with all of the other heirs of the said James S. Stewart, they made, executed and delivered for a valuable consideration to one Charles P. Winzlau all their and each of their interests in and to all the real property of the estate of said James S. Stewart, situate in the state of Ohio, and all the corresponding proceeds of said sale were given to and accepted by said Annie Stewart in pursuance of said contract and agreement. The said Annie Stewart received the income and profits of said estate and applied a portion of the same and the proceeds of the sales of personal property to her support, and invested the residue in real property in the said county of Sutter. On April 8, 1893, the entire residue of the estate of the said James Stewart was distributed to the said Annie Stewart and was of the value of about $30,000. Said Annie Stewart died testate August 6, 1904, and left estate in said Sutter county of the value of about $32,000. Her will was admitted to probate and letters of administration were issued to defendant William W. Stewart. Said last will and testament provides that neither of the plaintiffs should receive anything by virtue of said will, and the complaint alleges: "That said Annie Stewart, deceased, thereby ignored, repudiated and violated said contract and agreement so entered into as aforesaid and so as aforesaid fully performed on the part of said John S. Stewart, Charles E. Stewart and Elizabeth Reilay."
A demurrer was interposed and overruled, and defendants declining to answer, judgment was entered as prayed for, establishing the agreement and decreeing distribution to plaintiffs of the proportion of the residue of the estate to which each is entitled under the terms of the said contract. From this judgment the appeal is taken.
That contracts providing for disposition of property by will are enforceable is clearly established by the authorities. There are, however, certain important conditions and limitations, hereafter to be noticed, under which a court of equity will decree a specific performance of such contracts. In the case of Johnson v. Hubbell,
The reports contain many cases abounding in interesting and instructive observations upon this subject, but we content ourselves with merely a citation of some of them:Kafkaus v. Rosicky,
It is contended by appellants that the contract before us does not satisfy the requirement of these principles of equity, and, besides, that the complaint is objectionable in other respects, and to the consideration of the specific objections made by appellants and raised by their demurrer we direct our attention.
1. There is no misjoinder of parties plaintiff. The contention of appellants in this respect can be answered no better than by a quotation from the case of Whitehead v.Street,
The purpose of the suit here is to enforce a contract made with decedent in which all the plaintiffs are directly interested. The subject matter relates to that one transaction, and it is of no consequence that the plaintiffs are not all interested therein to the same extent. It would be a singular rule that would require these plaintiffs to bring separate actions to establish the same contract. If they had done so defendants would undoubtedly have a right to complain of the inconvenience and unnecessary expense occasioned thereby. The cases cited by appellants, as we view the matter, are not in point and we deem it unnecessary to review them.
2. The executor is not a necessary party to the action. All the devisees, legatees and persons claiming an interest in the estate are made parties plaintiff and defendant, and as the executor has no interest as such in the distribution of the estate he is properly excluded from a contest over the right to a distribution of the whole or a part of it. (Estate of Wright, *158
3. Attention is directed by appellants to several particulars wherein they claim the complaint is open to the objection that it does not state sufficient facts to constitute a cause of action. It is contended that if the contract of Annie Stewart is to be treated as a sale of her property to plaintiffs, it must be held to be void for the reason that it included property having neither an actual nor potential existence at the time. (Civ. Code, sec.
In Windsor v. Miner,
Stiles v. Cain,
In Re Hayden's Estate,
The decision in Henning v. Miller, 66 Hun, 538, [21 N.Y. Supp. 831], a case at law, really rests upon the doctrine that parol evidence is not admissible to vary the terms of a written instrument. Some unnecessary language was used apparently in line with appellant's contention here, but it must be limited to the facts of that particular case.
But appellants admit that part performance may take a case out of the statute of frauds, but claim that the facts here are insufficient to meet the requirement of the law in that regard. We proceed to notice some of the authorities upon which they rely to support this contention. Judge Story, in his Equity Jurisprudence, section 261, states the rule as follows: "But a more general ground and that which ought to be the governing rule in cases of this sort is that nothing is to be considered as a part performance which does not put the party into a situation which is a fraud upon him, unless the agreement is fully performed." The authorities all agree as to the rule, although it is expressed in varying phraseology. For instance, Professor Pomeroy, in section 1409 of his work on Equity Jurisprudence, says: "The ground upon which the remedy in such cases rests is that of equitable fraud. It would be a virtual fraud for the defendant, after permitting the acts of partial performance, to interpose the statute as a bar to the plaintiff's remedial right. . . . The most important acts which constitute a sufficient part performance are actual possession, permanent and valuable improvements and these two combined." Plaintiffs have brought themselves clearly within *161 the rule as thus announced. If it would not be a fraud upon them to withhold specific performance, then we mistake the meaning of the expression. They have not entered into the actual possession of the real property and made valuable improvements upon it, but relying on the promise of the mother they surrendered to her the possession and deprived themselves of the use of the property and the opportunity and means to make valuable improvements thereon. In an action to enforce specific performance of such a contract the surrender of possession of real property by one party to the other in reliance upon the latter's promise must be considered, in contemplation of equity, a factor as persuasive as though the former had acquired possession by virtue of said contract.
Of the cases cited by appellants in support of their contention, in the following specific performance was decreed:Nowack v. Berger, 133 Mo. 24, [54 Am. St. Rep. 663, 34 S.W. 489]; Quinn v. Quinn, 5 S. Dak. 328, [49 Am. St. Rep. 875, 58 N.W. 808]; Svanberg v. Fosseen,
Grant v. Grant,
The decisive factor in Owens v. McNally,
Forrester v. Flores,
In most of the cases cited where specific performance was decreed, personal services were the basis for the action, but in some of them the conveyance of property was the consideration. There is no difference, however, in principle if the elements of equitable cognizance are present. In the case at bar, assuming, as we must, that all the facts alleged in the complaint are true, only one conclusion can be reached in consonance with the principles of equity and justice and in harmony with the best-considered cases. No case cited appeals more strongly than this one to the conscience of the chancellor. There is no uncertainty as to the intention of the parties, and as to Mrs. Stewart the contract was eminently fair, just and reasonable. She received property more than thirty years ago from each of the children, of the value of nearly one thousand dollars, upon the promise that she would leave to the promisee an indefinite amount — it might be much less than she received — and at some uncertain period — as it developed, more than thirty years thereafter. As a cold business proposition no one would be so liberal as were the children. They deprived themselves of valuable property at a time when they probably could have used it to great advantage and profit for an uncertain amount that they might never live to enjoy. In fact, the mother did survive one of them. The circumstances of the transaction reveal clearly the adequacy of the consideration and cannot be aided by any comment in which we might indulge.
Again, the mother received real property as a part of the consideration and the peculiar value of such property is a decisive element in actions for specific performance. If the children had parted simply with personal property, under the decisions it might be that application would have to be made to the law side of the court, but here no such contention can be maintained. If the plaintiffs did not present a case for specific performance then it is idle to assert that it is ever proper to decree specific performance of an oral agreement to *163 devise property to a particular individual. The decision of the court below upon the admitted facts was just and equitable, and a contrary view is intolerable in contemplation of fair dealing and good conscience.
The judgment is affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 26, 1907.