De Mattos v. McGovern

The plaintiff by this action sought to invoke the equitable jurisdiction of the trial court by praying a specific performance of an alleged oral contract wherein James Frazer, now deceased, promised to bequeath to plaintiff in his will one-third of his estate in compensation for services rendered, and to be rendered, to him by the plaintiff as an employee. It is also alleged that at some time during the employment, the deceased informed plaintiff that he had actually executed a will in accordance with the foregoing promise. A demurrer to the complaint was sustained without leave to amend, and plaintiff has appealed from the judgment which followed that order.

The complaint alleges that James Frazer died on September 10,1934, leaving an estate in excess of the sum of $485,000. For many years next immediately preceding his death, the deceased had been engaged in the ownership and control of

On this appeal appellant states as questions involved: whether an executed oral agreement to will a certain portion of an estate is enforceable in equity notwithstanding the provisions of section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure; whether the complaint in the instant case states facts sufficient to confer upon the court jurisdiction to grant equitable relief by way of specific performance of the agreement pleaded; and whether in such a proceeding it is a necessary prerequisite that a claim be filed against an estate within the time required by law. The first and second questions are answered in the negative with the observation that we disregard the word “executed” added to the first question because of the settled rule that this proceeding does not involve an ‘ ‘ executed ’ ’ oral agreement. The third question is answered in the affirmative upon the authority of Morrison v. Land, 169 Cal. 580 , 585 [ 147 Pac. 259 ].

The main difference between this case and those which have gone before is that the appellant herein insists that notwithstanding his failure to pursue the regular remedy which the law has given him, he should be permitted to invoke the

The ease is controlled by these settled principles: Under section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure an agreement to make a will, or to leave property by deed or will is invalid unless in writing. An agreement not to revoke a will already made is, in effect, the same as an agreement to make a will and must also be in writing. (Cazaurang v. Carrey, 117 Cal. App. 511 , 517 [ 4 Pac. (2d) 259 ]; Notten v. Mensing, 3 Cal. (2d) 469 , 473 [ 45 Pac. (2d) 198 ]..)

An oral agreement to make a will or to leave property by deed in compensation for services rendered, or to be rendered, is not enforceable as such. The remedy is one in quantum meruit for the value of the services rendered. (Zellner v. Wassman, 184 Cal. 80 , 84, 87 [ 193 Pac. 84 ] ; Morrison v. Land, supra, pp. 586, 590; Ruble v. Richardson, 188 Cal. 150 , 154 [ 204 Pac. 572 ] ; Lauritsen v. Goldsmith, 99 Cal. App. 671 , 675 [ 279 Pac. 168 ] ; Burr v. Floyd, 137 Cal. App. 692 , 696 [ 31 Pac. (2d) 402 ].)

Equity follows the law and, when the law determines the rights of the respective parties, a court of equity is without power to decree relief which the law denies. (10 R C. L., p. 382; Magniac v. Thomson, 15 How. 281 , 299, 302 [ 14 L. Ed. 696 ]; Federal Land Bank v. Wilmarth, 218 Iowa, 339 [ 252 N. W. 507 , 513, 94 A. L. R. 1338 ].)

Where the law gives a party an adequate remedy by way of an action in damages for breach of contract, or for compensation for the services rendered under it, a court of equity may not grant specific performance of such a contract.

When the contract is valid a court of equity may, in lieu of specific performance, impress a trust for the purpose of enforcing the contract. (Wolf v. Donahue, 206 Cal. 213 , 220 [ 273 Pac. 547 ] ; Estate of Rolls, 193 Cal. 594 , 599 [ 226 Pac. 608 ] ; Estate of Rath, 10 Cal. (2d) 399 [ 75 Pac. (2d) 509 ].)

The appellant cites ten eases to the point that, notwithstanding the statutes requiring such contracts to be in writing the courts have “relaxed the rule” to the extent that such oral contracts, though invalid, “may and will be enforced” in equity. Four of the cases cited came before the statutes were enacted; two involved an agreement in writing; the remainder denied relief in equity as well as at law. It is true that in some of these cases, as well as in others which might be cited, the courts have said that “under special circumstances” equity will entertain such cases “upon clear proof of fairness, justness and adequacy”. Whether these expressions may be treated as postulates, dicta, or discursive colloquialisms, it is difficult to say, but it is significant that, in all these “reservations” of the power, there is no case cited wherein the power was exercised. There is, however, complete harmony in the eases holding to the rule that, where the oral contract to compensate by will was made in consideration of services rendered or to be rendered, the promisee’s remedy is one at law to recover the reasonable value of his services. It is equally well settled that before the promisee may maintain an action for that purpose he must file a claim against the estate. (Morrison v. Land, supra, p. 585.) Finally, no principle is more firmly settled than that equity will not come to the aid of one who, through his own delay and own fault, has lost the remedy which the law has provided.

The judgment is affirmed.

Sturtevant, J., and Spence, J., concurred.