182 P. 333 | Cal. Ct. App. | 1919
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *169 This is a suit in equity to compel specific performance of a contract to make a certain testamentary disposition of property. From a judgment in favor of defendants, plaintiff appeals.
The action is of a type illustrated by a line of decisions in this state beginning with Owens v. McNally,
The claim of appellant is that she and John S. Trout, now deceased, in December, 1909, entered into an oral agreement whereby Trout was to make his will in appellant's favor. There is no claim that the agreement was induced by fraud on the part of decedent. The agreement, as alleged in the complaint, was substantially as follows: Trout proposed to appellant that if she would marry him and furnish a home for him during the remainder of his life, and would care for him, and would assist him with her money in paying off certain encumbrances then upon his property and a balance owing upon property that he had agreed to purchase, she should inherit and succeed to his property, and, after the marriage, "in consideration thereof, and in consideration of the payment of said sums for him," he would make a will in her favor, devising and bequeathing to her all of his property. Appellant, according to the allegations of her complaint, accepted Trout's offer, and thereafter, in performance of the agreement, married him.
The complaint alleges that defendant Ogilvie is the administrator of the estate of John S. Trout, deceased; that *170 defendants other than Ogilvie claim to be the heirs of Trout, but that they are not, and that appellant is Trout's sole heir. The answers deny substantially all the allegations of the complaint. Evidence on behalf of appellant was introduced. Defendants offered no evidence. The court found that Trout made no contract that appellant should inherit or succeed to any of his property or that he would make a will in her favor, but that during the marriage she advanced and paid for Trout, upon property belonging to him, and for which she has received no payment, sums aggregating three hundred dollars. The court declined to determine who are the heirs of Trout. This declination was placed upon the ground that, in this action, the court has no jurisdiction to determine the question of heirship. The judgment adjudges that appellant has a lien upon a certain lot, a part of the estate of decedent, for the three hundred dollars so paid by her for decedent, and that, aside from such lien, appellant take nothing.
[2] If the contract alleged in the complaint be one that a court of equity will not enforce, it is immaterial that the finding that no such contract was made is not supported by the evidence. The rule is that it is immaterial that there is an erroneous finding upon an issue where, if the finding were otherwise, a different conclusion would not be necessitated.[3] We think the contract, as alleged in the complaint, is not enforceable.
Sections
Putting out of consideration, for the present, the fact that the agreement between appellant and Trout was made long after subdivision 7 had been added to each of these code sections, and assuming, for the purpose of this decision only, that such an agreement, though resting in parol and made since the code amendments, may be taken out of the statute of frauds by such acts of part performance as ordinarily would prompt a court of equity to grant specific *171 performance of an oral contract to sell real property — and appellant cannot possibly invoke any more liberal construction of subdivision 7 of these two code sections — still we cannot say that the acts of performance pleaded by appellant in her complaint justify the relief sought by her.
The allegation of the complaint is that, in his offer to appellant, Trout said "that he would, after the consummation of said marriage and in consideration thereof, and in consideration of the payment by plaintiff of said sums for him, make a will in favor of plaintiff." This is tantamount to an allegation that the consideration for Trout's agreement to devise and bequeath his property to appellant was the marriage and the payment by appellant of the sums necessary to relieve Trout's property from the encumbrances thereon and liquidate the balance owing on property contracted for by him.[4] It needs no authority to sustain the universally recognized rule that the payment of money is not such an act of part performance as will take a contract out of the operation of the statute of frauds. The remedy at law for a recovery of the money paid, with interest, is a complete and adequate remedy, and the payment does not work a fraud upon the party paying if the other party refuses or neglects to perform his part. The marriage, according to the allegations of the complaint, is the only other consideration for Trout's promise to "make a will in favor of plaintiff." [5] But marriage is not of itself sufficient to take a contract out of the statute of frauds. (Peek v. Peek,
Assuming, without deciding, that appellant is not so far bound by the allegations of her complaint as to be precluded from relying upon evidence of other considerations for Trout's promise, as, for instance, personal services agreed to be and performed by her, that is, caring for him in his illness — and evidence of such services was adduced — still appellant fails to show a case for specific performance of an agreement that, when entered into, was clearly within the statute of frauds. It is true that certain kinds of service of a very personal nature have been held to be sufficient acts of part performance to justify the specific *172
execution of an agreement to devise real property, as, for example, where the services were of such a peculiar character that it is impossible to measure their value by any pecuniary standard, and it is evident that the parties did not intend to measure them by any such standard. Prior to the adoption of the code amendments already adverted to, such acts of part performance — personal services of an extraordinary nature — were held to be sufficient to warrant a court of equity in granting relief tantamount to specific performance of a contract to devise or bequeath property. (Owens v. McNally,
[7] It must not be inferred, merely because, for the purpose of this decision, we have assumed that there may be circumstances under which a court of equity may enforce a parol contract to devise or bequeath property, entered into since the amendment of 1905, that such assumption correctly reflects our opinion as to this very important *173
question. On the contrary, we strongly incline to the view that, since the code amendments in question, such contracts, if resting wholly in parol, are always unenforceable. The only case in this state to which our attention has been called arising out of a contract entered into after the code amendment of 1905 is Hagan v. McNary,
Though courts of equity, very soon after the passage of the English statute of frauds, asserted jurisdiction to decree a specific execution of verbal contracts for the sale of lands — contracts within the inhibition of subdivision 5 of our statute of frauds — nevertheless eminent judges, at different times, have seriously questioned the wisdom of allowing any exceptions whatever to the statute, and have declared their intention not to extend them beyond the established precedents. (Per Field, J., in Arguello v. Edinger,
[8] Whatever the rule may be elsewhere, it would seem that in this state the lawmakers intended that the doctrine of part performance, as applied to parol contracts within the statute of frauds, should be confined to contracts relating to the sale of lands — contracts within the inhibition of section 5 of our statute of frauds. (Civ. Code sec.
[9] In declining to determine whether defendants other than Ogilvie were heirs of Trout, the court committed no error. If, as we hold, appellant's alleged contract with Trout is invalid and unenforceable, then her sole right to receive any part of his estate is as an heir — as the surviving wife of John S. Trout. The code has provided a special proceeding whereby any person claiming to be an heir or entitled to distribution of any part of the estate of a *175
decedent may file a petition in the pending probate proceeding to have the court ascertain and declare the rights of himself and all others to the estate or any interest therein. Such a proceeding is one in the nature of an action to determine heirship, and must be instituted in the pending probate proceedings. (Code Civ. Proc., sec. 1664.) The remedy thus afforded is ample and exclusive. The subject matter of heirship is vested in the court, sitting as a probate court, wherein the probate proceeding is pending. The whole subject matter of dealing with the estates of deceased persons is one of statutory regulation, and the policy and intent of our statute very clearly contemplates that property of decedents shall be subjected to the process of administration in the probate court. There is no other method provided by the statute whereby the existence of heirs may be conclusively established; and without doubt the jurisdiction of the superior court, sitting in probate, is both original and exclusive. (Estate of Strong,
Judgment affirmed.
Sloane, J., and Thomas, J., concurred.