Weinstein v. Moers

This is an appeal from a judgment in favor of the plaintiff, Clara Weinstein, in an action to establish and enforce a trust.

Prior to August 13, 1924, the defendant, Albert A. Moers, and Theresa W. Moers, husband and wife, conducted an art and antique store on West Seventh Street in the city of Los Angeles under the name of “Moers, Inc.” During the existence of the marriage relation and on or about August 4, 1921, they executed mutually reciprocal wills, pursuant to agreement, by which each devised and bequeathed to the other all of the property .belonging to them at the time of their respective deaths. Domestic difficulties arose and in August, 1922, the wife commenced an action

After the institution of the divorce proceedings and prior to the execution of the property settlement agreement the husband revoked the will made by him in favor of his wife. After the death of the wife the reciprocal will made by her in favor of her husband was found among her effects. The surviving husband filed this will for probate. It was ad

The plaintiff, Clara Weinstein, is the wife of her coplaintiff and is the surviving mother and sole heir at law of Theresa W. Moers, deceased. The defendant is sued in his individual capacity and as executor of the will of his deceased wife. It is alleged in the complaint and found by the court to be true that it was understood and agreed by each of the parties to the property settlement agreement that by the settlement consummated therein “the rights given and acquired by each person thereunder should constitute all of the rights of any kind which either person shall ever have or acquire in or to the separate property of the other or in the community property of said marriage, either by virtue of the marriage relation then existing between them, or by inheritance, the one from the other, or as a legatee or devisee under any will theretofore executed by either of said persons ; that said Theresa W. Moers refused to sign and execute said agreement except upon the condition and understanding that it should terminate and destroy any and every right or claim which her then husband, Albert A. Moers, might then have or might thereafter assert by virtue of the marriage relation existing between them, or as an heir of said Theresa W. Moers or under the terms of the will theretofore executed by said Theresa W. Moers; that said Theresa W. Moers believed and understood that it was not necessary for her to revoke her then existing will in order that said Albert A. Moers should not, in the event of her death, receive any of her property through or under the terms of said will; that in addition said Theresa W. Moers was induced to and did refrain from revoking her said will by representations made by said Albert A. Moers that he did not and would not thereafter claim any right or interest in or to any of said property except such property as was by the express terms of said agreement set over and apart to him; that the condition and understanding upon which said agreement was executed by said Theresa W. Moers was well and fully known by defendant Albert A, Moers and-was assented and agreed to

In support of the appeal an attack is made upon the sufficiency of the evidence to support the finding above quoted to the effect that the defendant promised and agreed that he would not make any claim to any property of the decedent which he might receive under her will. It appeared in evidence in support of the finding that after the draft of the property settlement had been prepared and pending its execution, a conference was held at which the parties thereto and their respective counsel were present. During this conference the decedent desired and insisted that the agreement should be a complete and final settlement of the property rights of the parties and that neither should receive any property from the other, and that she intended, as soon as the property settlement agreement was carried out, to make a will in favor of her mother. She was assured that under the agreement neither would receive the property of the other after death, but that to make it plain a clause would be inserted in the agreement to that effect. Where

That the parties intended that neither should receive any of the property of the other upon the death of either is satisfactorily established in support of the finding. True, the oral evidence as to what took place at the conference held on the day the agreement was signed was conflicting. But the assumption that the evidence was sufficient to support a contrary finding does not aid the defendant under well-recognized rules on appeal. We are of the opinion that when the acts and circumstances of the parties at and before the signing of the instrument and the conduct of the defendant in destroying his will are taken into consideration, the words employed in the interlineation were intended not in their technical sense but in the sense in which the court found them to be used. Aside from the oral evidence the words used and the circumstances of the parties speak eloquently in favor of the court’s finding. The form of the expression interlined, taken in connection with the context, is fairly susceptible of different interpretations. When the words are given the meaning ascribed to them by the trial court, the question of the claimed inadmissibility of the oral evidence would seem to be removed from debate. Any other conclusion would tend to nullify the obvious intention of the parties under the contract. (See Balfour v. Fresno Canal & Irr. Co., 109 Cal. 221 [ 41 Pac. 876 ].)

It is also contended by the defendant that the evidence is insufficient to support the finding that the decedent

Again, it is argued that the evidence is insufficient to support the finding that the promise of the defendant not to take by will was not dependent upon complete performance of the contract by the decedent. With reference to the payment of fourteen thousand five hundred dollars in cash, it appears that this amount of money was placed in the escrow to be paid to the defendant Moers upon the conclusion of the escrow on August 20th. Upon the death of Mrs. Moers on the 13th the escrow was revoked and the money was not paid to the defendant as therein provided. But the rights of the defendant to this money under the contract of settlement are in nowise prejudiced by the judgment herein. On the contrary, his right to the payment of this sum is recognized but properly not adjudged because of the necessary formality of the presentation of a claim against the estate, which is more than sufficient to satisfy all of his, the defendant’s, demands under the property settlement agreement. Nor are we able to find any insuperable obstacle to the operation of the judgment herein by reason of the provision of the contract for the segregation of five thousand dollars of the merchandise of the parties. Certain it is that the contract was not terminated by the death of one of the parties and its stipulations should be deemed as covenants rather than as conditions precedent, especially when the latter would result in what the court found to be inequitable consequences in favor of the defendant. (San Diego Construction Co. v. Mannix, 175 Cal. 548 [ 166 Pac. 325 ] ; Lucy v. Davis, 163 Cal. 611 , 614 [ 126 Pac. 490 ].)

Since no error in the admission of evidence appears and the findings are supported by the evidence, the judgment should stand as the appropriate action of the court in an equity proceeding. Neither the statute of wills, the statute of frauds nor the requirement that express trusts be in writing are applicable. The will was operative to pass the legal title, but when the defendant gathered unto himself

The judgment is affirmed.

Richards, J., Seawell, J., Preston, J., Langdon, J., Curtis, J., and Waste, C. J., concurred.