Monsen v. Monsen

The defendants, claiming as executors and beneficiaries under the will of Friedriech Monsen, deceased, appeal from a judgment enforcing an alleged contract by which the decedent had agreed that the plaintiff should receive and inherit a child’s share of the property which said decedent might leave.

The action is of a type familiar in this court, and illustrated by a line of decisions beginning with Owens v. McNally, 113 Cal. 444 , [ 33 L. R. A. 369 , 45 Pac. 710 ]. As was said in that case, there has been “from a very early date a general concurrence among the authorities upon the proposition that a man may make a valid contract binding himself to dispose of his property in a particular way by last will and testament, and a court of equity will enforce such an agreement specifically by treating the heirs as trustees and compelling them to convey the property in accordance with the terms of the contract.” Without referring to the numerous decisions in other jurisdictions, we make note of the cases in which the rule, as thus declared, has been recognized here. (McCabe v. Healy, 138 Cal. 81 , [ 70 Pac. 1008 ]; Baumann v. Kusian, 164 Cal. 582 , [ 44 L. R. A. (N. S.) 756 , 129 Pac. 986 ]; Rogers v. Schlotterback, 167 Cal. 35 , [ 138 Pac. 728 ]; Blanc v. Connor, 167 Cal. 719 , [ 141 Pac. 217 ].) In the case at bar, as in those cited, the plaintiff relied upon a parol agreement. It may not be amiss to point out the manifest danger of fraud, perjury, and injustice that may inhere in a recognition of the right to alter, by parol testimony, the course of disposition of the property of a decedent. It was, no doubt, a recognition of this danger that led the legislature to adopt the amendments to section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure, bringing agreements of this character within the scope of the statute of frauds. The agreement here relied upon was, however, claimed to have been made, and executed, on plaintiff’s part, long prior to the changes in the codes, and its validity is not affected by them. (Rogers v. Schlotterback, 167 Cal. 35 , [ 128 Pac. 728 ].)

While the cases which we have cited declare the propriety of an enforcement, in equity, of contracts to make a particu- ■ lar disposition of property upon the death of the promisor, they all agree that enforcement will not be decreed except upon the conditions applicable to all demands for specific performance. One of these is that the terms of the agreement

Plaintiff was the son of Peter Grevie and Fredrika, his wife. The Grevies had two other sons, both older than plaintiff. The family lived on a farm in Colusa County. Friedriech Monsen and Magdalena, his wife, were a childless couple residing on a farm near that of the Grevies. Peter Grevie ' and Friedriech Monsen were brothers of the half blood. The plaintiff was born in March, 1883. His mother died in April of the same year, and a few months later the plaintiff was put in charge of the Monsens. He remained with them during his childhood, receiving nurture and education at their hands. He took, or was given, their name, being known as Hiñe G. Monsen, and it is perfectly apparent from the evidence that the relations which grew up between him and the

The agreement on which plaintiff relies is set forth in his complaint with great detail and particularity, and the findings follow the allegations of the complaint. Briefly stated, it is averred and found that in September, 1889, Peter Grevie, plaintiff’s father, and Friedriech Monsen, for the benefit of the plaintiff, entered into a contract whereby Peter Grevie promised and agreed that he would surrender his said son to Friedriech Monsen to adopt, have, and keep as said Mon-sen’s son, and would renounce and waive all his claims as father of said plaintiff, and in consideration thereof Monsen agreed with said Peter Grevie for plaintiff’s benefit that said Monsen would, and he did thereby, accept and adopt plaintiff as his own son, and would protect and maintain and provide for him as such son, and would in every way become responsible for his moral and physical welfare, and would assume all responsibility for the debts of said plaintiff to be incurred, and he further agreed that upon the death of the said Friedriech Monsen the said plaintiff “should have, receive, and inherit, and should be and become entitled to and vested with a child’s and son’s share of all of the property, both real and personal, of which the said Friedriech Monsen might die seised or possessed, in the same manner and to the same effect as if he, the said plaintiff, Iíine G. Monsen, were a child and son and heir at law of the said Friedriech Monsen, deceased, and as a child and son and heir at law of the said Friedriech Monsen, deceased. ’ ’ Having found the agreement as thus outlined, the court drew the conclusion of law that plaintiff was entitled to receive one-third of the estate of Friedriech Monsen, subject to costs of administration, and judgment was entered accordingly.

When we come to examine the record, we fail to find in it any substantial evidence showing “clearly and satisfactorily, ” or at all, the making of the contract described with such precision in the complaint and the findings. The only witness who undertook to give direct testimony that a contract

There was evidence that both Monsen and his first wife had made wills by which they had made the plaintiff the sole beneficiary, and that they had shown these wills to him. This indicates that the Monsens, at the time of making the wills, desired that plaintiff should succeed to their property. It indicates no more. The making of a will has no tendency to show that there is a contractual obligation to make such will.

To the witness Wilkins, Monsen said: “I took a boy from Mr. Grevie and legally adopted him and made him my heir.” The statement that he had “legally adopted” plaintiff, if made, was not true. There is no claim that any legal adoption had ever taken place. The statement that he had made him his heir is fully explained by the showing that he had made a will leaving everything to the plaintiff. It certainly does not show that he had bound himself by agreement to make such provision. Testimony of several witnesses that the Monsens had said that they would leave the plaintiff all they had, or that “they intended” that he should get their property, is entitled to no greater weight. All of this evidence is similar in character to that under consideration in Ackerman v. Ackerman’s Exrs., 24 N. J. Eq. 585 , 586 (cited with approval in Owens v. McNally, 113 Cal. 444 , [ 33 L. R. A. 369 , 45 Pac. 710 ]), of which the court said “the complainant’s evidence chiefly consists of loose conversations had by different persons with the testator ... all of which evidence is consistent with a purpose, at one time, on the part of the father, to devise the farm to Gilbert and Gilbert’s expectation that he would . . . but which fails to show any contract for the conveyance or devise of the farm, intended to be obligatory either upon the father or son.”

One other item of evidence deserves specific mention. The plaintiff testified that the Monsens kept their wills in a safe, and that with these wills were duplicate copies of a memorandum which he had seen several times, the last occasion being some seven years before the trial. He did not undertake to give the exact wording of the memorandum, but declared that “it stated something like this: ‘We want it understood that we have raised and adopted Hiñe G. Monsen, and

Beyond all this, the evidence relied on, even if it could be regarded as tending to show with sufficient precision the making of any contract, fails utterly to support the precise contract alleged and found. The only agreement which may be said to be even suggested by the proof is one to leave all of the property to the plaintiff. The agreement alleged and found, and the one which the court undertakes to enforce, is

Without further elaboration, we repeat that the evidence is entirely insufficient to justify the finding which we have discussed. Accordingly, the judgment cannot be supported. We are not unmindful of the settled rule that the findings of a trial court upon conflicting evidence are conclusive here, and that all reasonable inferences are to be indulged to support the findings. This rule does not, however, justify the sustaining of a finding when it has not the support of substantial evidence.

It becomes unnecessary to consider other points made by the appellants.

The judgment is reversed.

Shaw, J., and Lawlor, J., concurred.

Hearing in Bank denied.