Rundell v. McDonald

This is an appeal from a judgment entered against plaintiff after general demurrer was sustained to his complaint, without leave to amend.

The only question to consider is the sufficiency of the complaint to state a cause of action. The parties to the appeal are the plaintiff and the defendant McDonald as administrator and in person.

The complaint alleges the following: On the 20th of February, 1912, plaintiff was the owner of a house and lot in Santa Barbara, California, of the value of three thousand dollars; on or about that date he entered into an agreement with Mary Ann Rundell, his aunt—who was also his stepmother, the widow of his father—whereby he agreed to convey this house and lot to her in consideration of an

Under this state of facts, as more fully pleaded, the plaintiff asks judgment that the defendants hold this real property in trust for plaintiff; that a conveyance thereof to plaintiff be decreed, and that he have such other relief as he may be entitled to under the pleadings.

[1] That a contract of this character, when properly evidenced, is valid and binding and may be enforced by a court of equity unless superior equities have intervened is not disputed by respondent, and if it were disputed, is sustained by too great a weight of authorities to be .open to discussion. (Owens v. McNally, 113 Cal. 444 , [ 33 L. R. A. 369 , 45 Pac. 710 ]; Steinberger v. Young, 175 Cal. 81 , [ 165 Pac. 432 ]; Keefe v. Keefe, 19 Cal. App. 310 , [ 125 Pac. 929 ]; McCabe v. Healy, 138 Cal. 81 , [ 70 Pac. 1008 ]; Rogers v. Schlotterback, 167 Cal. 35 , [ 138 Pac. 728 ]; Mon

On this appeal the question of the statute of frauds is not involved, as it does not appear from the complaint that the contract was not wholly in writing, and no question on this point, or as to the application of subdivision 7 of section 1973 of the Code of Civil Procedure, was or could be raised by demurrer. [2] The law presumes, under the allegation of due execution, that the contract was made in compliance with the statute of frauds. (McMenomy v. Talbot, 84 Cal. 279 , [ 23 Pac. 1099 ]; Alaska Salmon Co. v. Standard Box Co., 158 Cal. 567 , [ 112 Pac. 454 ].)

We have, therefore, in the pleadings here a statement of facts setting forth a valid and binding agreement to devise this property to the plaintiff, and under conditions which appeal most strongly to every natural sentiment of equity and fair dealing for its enforcement, and which the promisor proceeded to carry out by the execution of a sufficient will for that purpose. It is contended, however, that the will which was executed by Mary Ann Rundell in compliance with her agreement was revoked by operation of law, under the provisions of section 1300 of the Civil Code, upon her marriage to the defendant McDonald, and that at her death the- situation of the parties was the same as though she had made no attempt to devise this property. Assuming this to be the fact, does any condition arise from this subsequent marriage, and the presumptive right of her husband to succeed to one-half of her estate, to defeat the equities of the plaintiff in his attempt to enforce this agree

We believe there are material points of distinction between the respective equities as shown in Owens v. McNally and all the other cases cited to the same point, and those apparent in the case at bar. First, it may be questioned if the existence of a defense of conflicting equities arises on a general demurrer to this complaint. Does the mere fact of the marriage of the promisor since the making of this contract, and that her husband is living and presumptively an heir, establish inequity and unfairness in plaintiff’s claim, or should the point be met on issues raised by an answer? Does any presumption exist that McDonald had not, previous to his marriage, notice of the status of this real property, or, in the absence of special demurrer, is the burden upon the plaintiff to allege such notice in his complaint? But passing this question, which is not raised by either of the parties, it may confidently be said that many points of distinction, going to the respective equities, exist between the circumstances involved in Owens v. McNally, supra—which is the strongest case cited in behalf of respondent here—and the facts as pleaded in this complaint.

In the case cited it seems clear that the court refused specific performance of the agreement to make a will in plaintiff’s favor because the enforcement of the agreement “would be harsh, oppressive, and unjust to innocent third parties.” In that case the ptromisor had, at the time of his death, accumulated an estate of some twenty thousand dollars in value, no part of which had been contributed by the plaintiff. As the court, in its opinion, says, there was much “vagueness and uncertainty” as to the "services to be rendered by the plaintiff in consideration of the promise to make a will in her favor. Neithér the length of time which plaintiff was to spend in living with and caring for the intestate is made certain, nor the kind or character of the services which she was to render. Moreover, “the defendant widow married McNally in ignorance of the con

In "the case at bar, the plaintiff had, without consideration—or, at best, for a nominal consideration—bestowed upon the promisor the entire property he was to receive back under the will. There is no question as to the precise consideration for the promise and the entire fulfillment of consideration by plaintiff. He gave to the promisor this specific real estate on the condition that "she should return it to him at her death by devise. She promised that he would receive his property back in kind, “free from conditions or encumbrances,” thus negativing the presumption that the agreement was made in contemplation of its defeat by her subsequent marriage, if such marriage should occur. It does not appear that the defendant McDonald did hot have knowledge of the agreement regarding this property at the time of his marriage with Mary Ann Rundell, and whatever legal rights to succeed to a part of her estate may have been conferred upon him by marriage, it would never occur to a normal mind that there was anything “harsh, oppressive, and unjust” in returning this property to the one who was, by virtue of contract and good conscience, entitled to it, rather than to pass it on, by succession, to a man who is only related to it by marriage. And, finally, it appears that this parcel of land is the only property of value in the estate, and if the plaintiff cannot recover it in this action, he is without recourse, even if any other right of action exists.

The distinctions referred to, we believe, are, in themselves, sufficient to remove this case from the limitations upon relief by specific performance recognized in the authorities cited and relied upon by respondeat.

But there is another aspect of this appeal which is deserving of attention. A valid agreement to devise this property to plaintiff, as shown by the complaint, was not only entered

In Lant's Appeal, 95 Pa. St. 279 , [ 40 Am. Rep. 646 ], where there had been a parol antenuptial agreement between the affianced couple that the woman could dispose of her estate as she saw fit, it was held that the will so made by the woman was revoked by the subsequent marriage, but that its provisions could be enforced in equity as an ante-nuptial contract. It is true that the doctrine stated in these cases is coupled with a relinquishment of the equities of the other spouse in the testator’s estate, but they go to the extent of holding that, in the absence of such equities, the will, though inoperative as such by reason of marriage subsequent to its execution, has not become ineffective to sustain rights of those claiming under it. ¡

None of the eases that have come to our attention deals with a devise of property the title to which, at the time of the contract, was wholly in the party claiming under the will, and which was transferred to the testator solely on condition that the specific property should be given, back under the will.

[3] We can see no reason why such an agreement as this, and the execution of the will in pursuance thereof, does not create a resulting trust under sections 2221 and 2222 of the Civil Code, or why the defendant is not bound in this matter under Civil Code sections 1573 and 2224. The circumstances as pleaded strongly suggest the existence of a- confidential relation between the plaintiff and his aunt and stepmother creative of obligations under sec

We doubt if the policy of the law which declares the revocation of the will of an unmarried woman by her subsequent marriage was ever intended to apply to a devise of property which was conveyed to her without consideration and upon the express condition that she should return it in kind to the donor at her death. There is no authority before us which holds that the revocation of such a will by operation of law revokes the contract or obligation under which it was made. If this will was extinguished by the marriage of the testator, the law permitted her immediately thereafter to make another just like it, and the obligations of contract and conscience demanded it of her. It is an entirely different condition from that arising on a promise to leave one’s own and indefinite estate at death in compensation for an unliquidated obligation for services rendered or to be rendered to the testator. It is a contract fixing a present obligation upon specific property.

There can be no question here of the showing by the complainant that the consideration for this deed was merely nominal, and we are of the opinion that he is entitled to show, under his averment to that effect, that his conveyance to the testator was purely voluntary and without any valuable consideration. [4] The authorities cited by respondent go to the rule that the consideration recited in a deed " cannot be disputed so as to destroy the operation of the deed. There is no attempt here to defeat the deed, but merely to establish the conditions governing the title under a collateral contract between the parties, and parol evidence is admissible for such purposes. (Coles v. Saulsby, 21 Cal. 47 ; Brison v. Brison, 75 Cal. 525 , [ 7 Am. St. Rep. 189 , 17 Pac. 689 ]; Wiard v. Brown, 59 Cal. 194 ; Carty v. Connolly, 91 Cal. 18 , [ 27 Pac. 599 ]; Arnold v. Arnold, 137 Cal. 297 , [ 70 Pac. 23 ]; Higgins v. Higgins, 46 Cal. 259 .)

From either one of the several theories of this case discussed, we are of the opinion that the complaint states a cause of action. »

Judgment reversed.

Finlayson, P. J., and Thomas, J., concurred.

All the Justices concurred, except Melvin, J., and Olney, J., who were absent.