[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
OPINION
Plaintiff brought this action to impose a constructive trust upon property of the estate of Edna Richards, distributed to that decedent from the estate of Ulysses Grant Richards. Defendants had judgment and plaintiff appeals.
Ulysses Grant Richards, a successful business man, had acquired a considerable estate and had retired when his first wife died in 1937. There was one child of the marriage, Ethel, who died in 1956, survived by her daughter, Patricia, plaintiff here. After his first wife's death, Ulysses married Edna. She brought no property to the marriage, and neither she nor Ulysses worked after their marriage. Hence, all property of Edna and Ulysses throughout their marriage was his separate property. Edna was childless.
On the date of his marriage to Edna, January 4, 1938, Ulysses executed a will leaving approximately half of his estate to Edna and the remainder to Ethel, his daughter. If Ethel did not survive him that half was to go to her daughter, appellant here. In 1945, Edna and Ulysses executed wills drawn by his long-time friend and attorney, Charles Beardsley. By these wills, each spouse left his estate to the other, and if the spouse did not survive,
then to Ulysses' heirs, i.e., his daughter Ethel or his granddaughter, appellant here.
Plaintiff introduced a carbon copy of a letter wholly in the handwriting of Ulysses, except that the words "Yours always Ulysses G. Richards", and "OKd by Edna," were written in ink by him on the carbon copy. The letter reads: "Oakland Cal. Sept 27 — 1948 My Dear Edna — While I was in hospital I decided that it is time I put my house in order so there should not be mis-understngs [sic].
"First, my will has been made leaving all my property to you in event you outlive me and you have, in return, willed all your possessions to me and or my heirs at your death. Copy of both wills are in our lock box, and originals are with Chas Beardsley.
"As of today our worth is as follows [Listing assets totaling some $150,000]
"It will require today about $10,000.00 to pay inheritance Taxes and you should sell items marked[*] for this purpose or as much as required-for this $10,000.00 Amount is estimated but should be plenty.
"This will leave you for `income'
"Interest on govt Bonds per year $1630.00 " " Bank time 200.00 est Stocks Bonds 2000.00 Your annuity policy 1200.00 ________ $5030.00 per year ________
"You will have taxes on home $450.00 a year and insurance upkeep about 150.00 " " _______ $600.00
leaving you about $350.00 per month net if you need to sell anything let it be out of items marked[*].
"We agree one with the other than we — neither of us, will change this situation during our lifetimes
"Do not, if you outlive me, spend much on funeral expenses
"Yours always
Ulysses G. Richards OKd by Edna"
Ulysses died April 17, 1950, leaving an estate appraised at some
$30,000. It was distributed to Edna under his 1945 will, together with unspecified properties held by the spouses in joint tenancy and not included in the probate inventory. Edna died March 27, 1966. Her last will left a grandfather clock to appellant and the rest of her estate to her brothers and sisters.
Appellant testified that in November 1949, Ulysses showed either the original or copy of the 1948 letter to appellant and her mother and said that he had given it to Edna. He asked appellant and her mother to do nothing during Edna's lifetime to upset his agreement with her, and said that Edna, being an honest woman, would abide by the agreement and, on her death, give his estate back to his family. Appellant also testified that Edna, after the death of Ethel, told appellant that she (Edna) would follow the "same agreement," that she would leave everything to appellant Patricia. Edna, of course, was not available to testify. Respondents did offer evidence, by two witnesses, that Ulysses, some 20 years earlier, had indicated some estrangement from his daughter and granddaughter and had already given them all he intended them to have.
(1) A joint or mutual will remains revocable by either testator (Prob. Code, § 23). Thus a probate court will not refuse to admit a later will of one of the mutual testators. (Rolls v.Allen, 204 Cal. 604, 607-608 [269 P. 450]; Estate of Rolls,193 Cal. 594, 599 [226 P. 608]). (2) A person may contract to make a particular disposition of his property by will and a court of equity will grant relief for a breach of that contract (Brown v. Superior Court, 34 Cal.2d 559, 563 [212 P.2d 878]). The mere fact that wills contain reciprocal or similar or identical provisions is not of itself sufficient evidence of a contract (Daniels v. Bridges, 123 Cal.App.2d 585, 589 [267 P.2d 343]). (3) When there is such a contract by two parties, "each promising to dispose of his property to the other or, if the other be dead, to certain third persons, and one of the parties performs by leaving his property to the other, the intended devises and legatees are entitled to enforce their rights as beneficiaries under the agreement. (4) The contracting party who survives becomes estopped from making any other . . . disposition of the property, and his obligations under the agreement become absolutely irrevocable . . ., at least where he avails himself of the provisions of decedent's will in his favor and accepts substantial benefits thereunder." (Brown v. Superior Court, supra, at p. 564.) (5) The contract to devise need not contain an express agreement not to revoke the mutual will. In such a case, equity will enforce a constructive trust on the property (Daniels v. Bridges, supra).
(6) Thus the crucial question here is whether Ulysses and Edna did contract to make mutual wills. The burden of establishing such agreement
is upon the plaintiff who seeks to impose the trust. The trial court found that "Ulysses Grant Richards and Edna S. Richards did not have any agreement between them, oral or otherwise, with respect to the testamentary disposition of their property." Appellant argues that this finding is not sustained by the evidence.
The testator's letter of September 27, 1948, suggests that neither at nor before the time they executed their 1945 wills did husband and wife agree to leave their property in a given manner.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
OPINION
Plaintiff brought this action to impose a constructive trust upon property of the estate of Edna Richards, distributed to that decedent from the estate of Ulysses Grant Richards. Defendants had judgment and plaintiff appeals.
Ulysses Grant Richards, a successful business man, had acquired a considerable estate and had retired when his first wife died in 1937. There was one child of the marriage, Ethel, who died in 1956, survived by her daughter, Patricia, plaintiff here. After his first wife's death, Ulysses married Edna. She brought no property to the marriage, and neither she nor Ulysses worked after their marriage. Hence, all property of Edna and Ulysses throughout their marriage was his separate property. Edna was childless.
On the date of his marriage to Edna, January 4, 1938, Ulysses executed a will leaving approximately half of his estate to Edna and the remainder to Ethel, his daughter. If Ethel did not survive him that half was to go to her daughter, appellant here. In 1945, Edna and Ulysses executed wills drawn by his long-time friend and attorney, Charles Beardsley. By these wills, each spouse left his estate to the other, and if the spouse did not survive,
then to Ulysses' heirs, i.e., his daughter Ethel or his granddaughter, appellant here.
Plaintiff introduced a carbon copy of a letter wholly in the handwriting of Ulysses, except that the words "Yours always Ulysses G. Richards", and "OKd by Edna," were written in ink by him on the carbon copy. The letter reads: "Oakland Cal. Sept 27 — 1948 My Dear Edna — While I was in hospital I decided that it is time I put my house in order so there should not be mis-understngs [sic].
"First, my will has been made leaving all my property to you in event you outlive me and you have, in return, willed all your possessions to me and or my heirs at your death. Copy of both wills are in our lock box, and originals are with Chas Beardsley.
"As of today our worth is as follows [Listing assets totaling some $150,000]
"It will require today about $10,000.00 to pay inheritance Taxes and you should sell items marked[*] for this purpose or as much as required-for this $10,000.00 Amount is estimated but should be plenty.
"This will leave you for `income'
"Interest on govt Bonds per year $1630.00 " " Bank time 200.00 est Stocks Bonds 2000.00 Your annuity policy 1200.00 ________ $5030.00 per year ________
"You will have taxes on home $450.00 a year and insurance upkeep about 150.00 " " _______ $600.00
leaving you about $350.00 per month net if you need to sell anything let it be out of items marked[*].
"We agree one with the other than we — neither of us, will change this situation during our lifetimes
"Do not, if you outlive me, spend much on funeral expenses
"Yours always
Ulysses G. Richards OKd by Edna"
Ulysses died April 17, 1950, leaving an estate appraised at some
$30,000. It was distributed to Edna under his 1945 will, together with unspecified properties held by the spouses in joint tenancy and not included in the probate inventory. Edna died March 27, 1966. Her last will left a grandfather clock to appellant and the rest of her estate to her brothers and sisters.
Appellant testified that in November 1949, Ulysses showed either the original or copy of the 1948 letter to appellant and her mother and said that he had given it to Edna. He asked appellant and her mother to do nothing during Edna's lifetime to upset his agreement with her, and said that Edna, being an honest woman, would abide by the agreement and, on her death, give his estate back to his family. Appellant also testified that Edna, after the death of Ethel, told appellant that she (Edna) would follow the "same agreement," that she would leave everything to appellant Patricia. Edna, of course, was not available to testify. Respondents did offer evidence, by two witnesses, that Ulysses, some 20 years earlier, had indicated some estrangement from his daughter and granddaughter and had already given them all he intended them to have.
(1) A joint or mutual will remains revocable by either testator (Prob. Code, § 23). Thus a probate court will not refuse to admit a later will of one of the mutual testators. (Rolls v.Allen, 204 Cal. 604, 607-608 [269 P. 450]; Estate of Rolls,193 Cal. 594, 599 [226 P. 608]). (2) A person may contract to make a particular disposition of his property by will and a court of equity will grant relief for a breach of that contract (Brown v. Superior Court, 34 Cal.2d 559, 563 [212 P.2d 878]). The mere fact that wills contain reciprocal or similar or identical provisions is not of itself sufficient evidence of a contract (Daniels v. Bridges, 123 Cal.App.2d 585, 589 [267 P.2d 343]). (3) When there is such a contract by two parties, "each promising to dispose of his property to the other or, if the other be dead, to certain third persons, and one of the parties performs by leaving his property to the other, the intended devises and legatees are entitled to enforce their rights as beneficiaries under the agreement. (4) The contracting party who survives becomes estopped from making any other . . . disposition of the property, and his obligations under the agreement become absolutely irrevocable . . ., at least where he avails himself of the provisions of decedent's will in his favor and accepts substantial benefits thereunder." (Brown v. Superior Court, supra, at p. 564.) (5) The contract to devise need not contain an express agreement not to revoke the mutual will. In such a case, equity will enforce a constructive trust on the property (Daniels v. Bridges, supra).
(6) Thus the crucial question here is whether Ulysses and Edna did contract to make mutual wills. The burden of establishing such agreement
is upon the plaintiff who seeks to impose the trust. The trial court found that "Ulysses Grant Richards and Edna S. Richards did not have any agreement between them, oral or otherwise, with respect to the testamentary disposition of their property." Appellant argues that this finding is not sustained by the evidence.
The testator's letter of September 27, 1948, suggests that neither at nor before the time they executed their 1945 wills did husband and wife agree to leave their property in a given manner. The letter itself refers to an agreement of its date — "We agree one with the other that we — neither of us, will change this situation during our lifetimes." Had the result sought by appellant been intended in 1945, it is difficult to believe that a successful business man and his attorney, experienced in probate matters, would not have recited such an agreement in the wills of Ulysses and Edna, or separately memorialized such an agreement, or, absent agreement, that Ulysses' will would not provide for a life estate in Edna with remainder to Ethel or appellant. Absence of reference to such an agreement in either will plus the failure of the 1948 letter to suggest any earlier agreement, negate existence of the essential agreement when their separate wills were executed. Thus the provisions of the 1945 wills cannot be looked to for corroboration of the claimed agreement of 1948.
We must look to the letter itself as evidence of that essential agreement. That letter, as well as its statement that it was "OKd by Edna," admittedly is in the handwriting of Ulysses, but is nowhere signed or intialed by Edna. It is evidence of Ulysses' agreement, but can hardly be extended to show that Edna joined in or consented to the asserted agreement (see Estate of Tassi,196 Cal.App.2d 494, 506 [16 Cal.Rptr. 616]; Witkin, Cal. Evidence (2d ed. 1966) p. 546.) The only competent evidence of oral joinder in the agreement by Edna is the testimony of appellant as to a conversation following Ulysses' death. The question of credibility of this testimony was wholly for the trial court, and should not be determined by us. The trial court found that no such agreement was joined by Edna, and thus apparently determined appellant's testimony to be inaccurate in this respect.
It is quite true that the evidence of estrangement of Ulysses from his daughter and appellant was weak because it was based upon current memory of unmemorialized conversations long past. But it was unnecessary for the trial court to look to this testimony unless it accepted that of appellant. In evaluating her testimony, that court could look to her self-interest and the entire absence of corroboration, circumstantial or otherwise. From the court's express conclusion that "the evidence fails to establish" an agreement, it is apparent that appellant's testimony was not accepted.
Award of the property to Ulysses' direct descendant is an attractive result.
But it is not for us to dispose of the property of another, or to find an agreement, contrary to the determination of the trial court, upon our reading of the testimony of witnesses we have neither seen nor heard.
The finding that no agreement existed is supported by the evidence and, in turn, supports the judgment.
Judgment affirmed.
Caldecott, J., concurred.