Opinion
Rehearing Denied June 26, 1929
Hearing Granted by Supreme Court July 25, 1929
Appeal from Superior Court, Los Angeles County; William C. Doran, Judge.
Action by Ethel M. Staples against Laura Hawthorne and others. Judgment for defendants, and plaintiff appeals. Modified and affirmed. COUNSEL
Merriam, Rinehart & Merriam, of Pasadena, for appellant.
C.W. Byrer, of Los Angeles, for respondents.
OPINION
LUCAS, Justice pro tem.
Plaintiff appeals from the judgment herein decreeing that she take nothing by reason of her action, wherein she sought specific performance of an oral agreement and the enforcement of a trust. The complaint as amended to conform with the proof alleges that in 1887 James Bower, the father of plaintiff, for and on behalf of plaintiff, who was then a little girl of about four years of age, made and entered into an agreement with one N.H. Hosmer and Clymena W. Hosmer, his wife, whereby, in consideration of the said James Bower agreeing to deliver plaintiff into the companionship, care, custody, and control of the said Hosmers, and to relinquish to them his parental rights over plaintiff, the said Hosmers agreed to take plaintiff into their home and family as a daughter, to love, cherish, support, maintain, and educate her, to treat her in all respects as their own child, and, upon their deaths, to leave, bequeath, and devise all of their property to plaintiff as their sole heir, legatee, and devisee.
The record shows that the said Hosmers did take plaintiff into their home, where she remained until she married, and that she was treated at all times by them as a natural child would be treated, but that, when the said N.H. Hosmer died in June, 1912, he left all of his property and estate to the said Clymena W. Hosmer. She in turn died in February, 1923, leaving an holographic will bearing date November 21, 1920, by the terms of which she gave plaintiff but $500 out of a $27,000 estate. To plaintiff’s husband she bequeathed $500; to Alfred S. Copps $500; to Arthur M. Copps $200; and to defendants and respondents Laura E. Hawthorne, Lelia B. Morse, Angie Williamson, and Frank S. Morse the residue, share and share alike. Plaintiff was appointed administratrix of said estate with the will annexed, but sued herein in her individual capacity. She prayed judgment decreeing that she is the equitable owner of all of said decedent’s property and estate, that the defendants named in the will as beneficiaries thereunder hold their respective interests as trustees, and that they be required to convey unto her their several interests in said property and estate.
The defendants Alfred S. Copps and Arthur M. Copps filed an answer and disclaimer, admitting the allegations of plaintiff’s complaint to be true, and relinquishing their rights as legatees under the will of the said Clymena W. Hosmer.
The defendants Laura E. Hawthorne, Angie Williamson, Lelia B. Morse, and Frank S. Morse filed an answer placing in issue the material allegations of the complaint, setting up certain special defenses, and asking that plaintiff take nothing by her action.
The case was tried by the court without a jury, and in its decision the court found substantially that all of the allegations of plaintiff’s complaint were true, except the allegation that the Hosmers agreed upon their deaths to leave, bequeath, and devise all of their property to plaintiff as their sole heir, legatee, and devisee. Judgment was therefore given for the defendants Hawthorne, Williamson, Lelia B. Morse, and Frank S. Morse.
As grounds of appeal from this judgment, plaintiff and appellant contends, (1) that there is no evidence to support the negative finding of the trial court that the Hosmers did not agree to leave plaintiff all of their property when they died; (2) that the said negative finding is in conflict with uncontradicted evidence to the contrary, and that, as a matter of law, the finding should be set aside as not supported by the evidence; (3) that certain rulings of the court on the admissibility of evidence are erroneous; and (4) that the findings and judgment should be set aside as being in violation of the disclaimers and consents of the defendants Alfred S. Copps and Arthur M. Copps. The agreement in question, if made at all, was made prior to the enactment of subdivision 7 of section 1624 of the Civil Code, and was therefore not required to be in writing. It is not disputed that courts of equity will enforce such an agreement by treating the heirs as trustees for those claiming the benefit thereof and compelling the conveyance of the property according to its terms. Owens v. McNally, 113 Cal. 444, at page 448, 45 P. 710, 33 L.R.A. 369; McCabe v. Healy, 138 Cal. 81, 70 P. 1008. Such contracts, however, are to be sustained only upon presentation of clear and convincing proof. Hayden’s Estate, 1 Cal.App. 75, 81 P. 668, citing Owens v. McNally, supra; McCabe v. Healy, supra.
The justness of this rule is apparent in this case, in view of the fact that oral proof of words spoken many years before is relied upon to establish and enforce a solemn and binding contract for the transfer of real and personal property against the beneficiaries of one whose lips are forever sealed and who is charged with having deliberately violated such contract in the closing moments of her life. Careful scrutiny should be given by the trial court to the evidence adduced and by the court appealed to for a reversal of the trial court’s judgment.
Plaintiff and appellant Ethel M. Staples and four other witnesses testified to statements made by either Mr. or Mrs. Hosmer tending to show their intent to leave all their property to appellant. This testimony, however, is just as consistent with the theory that such expressed intent was occasioned by a generous impulse on their part as it is with the theory that they had entered into an agreement so to dispose of their property. Giving it full weight, this testimony is at best but slightly corroborative of appellant’s contention. The strength of appellant’s case depends almost entirely upon the weight given the testimony of Edith L. Twycross and S. Lillie Twycross, sisters of appellant’s mother, and upon that of Bradford W. Thurston, a grandnephew of appellant’s father. The said Twycross sisters, aged, respectively, 58 and 80 years, were present when the conversation was had between the Hosmers and appellant’s father at Cedar Grove, Me., in 1887, which conversation, it is claimed, constituted or resulted in the oral agreement here sought to be enforced. They testified, in substance, that appellant’s father was willing for the Hosmers to take her, and that the Hosmers promised to give her a good home and a good education, and that they would leave all their property to her. The witness Thurston testified to a statement said to have been made by Mrs. Hosmer in 1915 that such conversation had taken place.
The testimony of these three witnesses was presented to the trial court in the form of depositions. Had the three witnesses testified in person before the court, and thereby afforded the court an opportunity of observing their appearance and bearing, this court clearly would not be justified in disturbing the finding of the trial court.
"While it is the general rule that the uncontradicted testimony of a witness to a particular fact may not be disregarded, but should be accepted by the court as proof of the fact, this rule has its exceptions. The most positive testimony of a witness may be contradicted by inherent improbabilities as to its accuracy contained in the witness’s own statement of the transaction; or there may be circumstances in evidence in connection with the matter which satisfy the court of its falsity; the manner of the witness in testifying may impress the court with a doubt as to the accuracy of his statement and influence it to disregard his positive testimony as to a particular fact; and as it is within the province of the trial court to determine what credit and weight shall be given to the testimony of any witness, this court cannot control its finding or conclusion denying the testimony credence, unless it appears that there are no matters or circumstances which at all impair its accuracy." Davis v. Judson, 159 Cal. at page 128, 113 P. 150.
Appellant urges strenuously, however, that such is not the rule where depositions are presented, and cites the case of Wilson v. Cross & Co., 33 Cal. 60, 69, as supporting authority. Mr. Justice McFarland, however, in the case of Reay v. Butler, 95 Cal. 206, 214, 30 P. 208, 209, in commenting upon the case of Wilson v. Cross & Co., supra, states what we believe to be the correct rule applicable hereto and the fundamental underlying reason for the rule:
"It has been held here in more than a hundred cases, commencing with Payne v. Jacobs, 1 Cal. 39, in the first published books of reports of this court, and ending with Dobinson v. McDonald, 92 Cal. 33 [27 P. 1098], in the last volume of such reports, that the finding of a jury or a court as to a fact decided upon the weight of evidence will not be reviewed by this court; and so the general rule is clearly established. It was said, however, in the opinion of the court in two or three cases, notably in Wilson v. Cross & Co., 33 Cal. 60, that the reason of the rule is, that the court below has the advantage of observing the appearance and bearing of the witnesses, and that such reason does not obtain when the witnesses do not appear personally in court. But is may be well argued that such is not the only reason of the rule; that it is founded in the essential distinction between the trial and the appellate court under our system, and grows out of considerations of jurisdiction; that it is the province of the trial court to decide questions of fact, and of the appellate court to decide questions of law; that this court can rightfully set aside a finding for want of evidence only where there is no evidence to support it, or where the supporting evidence is so slight as to show abuse of discretion. *** In Bauder v. Tyrrel, 59 Cal. 99, the court says: ‘The trial court decides as to the facts, the court of review (in this state) as to questions of law only.’ The appellate court will, no doubt, look a little more closely into the evidence when it consists entirely of depositions or affidavits, or notes of former testimony; but it cannot be taken as settled that in such a case the rule as to conflicting evidence does not apply."
Denied the opportunity of personally observing certain of the witnesses, it was not only the right, but the duty of the trial court, in determining whether appellant had established her case by that clear and convincing proof required in cases of this kind, to carefully consider the inherent improbabilities as to the accuracy of the witnesses’ own statements. This alone may so contradict the most positive testimony as to make applicable to the court’s findings the conflicting evidence rule.
To make any binding contract, the promise of one party must be the moving consideration for the promise of the other. One agrees to do something for and in consideration of the agreement of the other to do something else. In point of time the promises are concurrent.
Here it is claimed that one party, in consideration of the privilege of rearing a child as her own, and receiving its love, affection, and companionship, agreed at death to transfer by will all of her property to such child. For proof of the terms of the contract the greatest reliance is placed upon the memories of two women, aged respectively 58 and 80 years, as to what was said, by whom it was said, and the order in which it was said some 38 or 40 years ago. The memories of these women were shown by contradictory evidence to be defective in some details. This is not surprising. It is hardly conceivable that any one of the age of either could clearly remember with any degree of exactitude what was actually said so many years before. Yet, to make the alleged agreement to transfer effective and within the law, it must be established by clear and convincing testimony that a promise to transfer was made at or before the time appellant’s father promised to relinquish appellant’s care, custody, and control, and in consideration thereof. It may well be that during the conversation the Hosmers said something about leaving their property to appellant under some circumstances. This might reasonably be expected of a man and wife who professed love for a child of tender years and who had no direct heirs of their own.
But, considering the inherent probabilities of the case, the circumstances under which the contract was entered into, the age of the appellant at the time, her immediate needs of care, support, and education, the uncertainties of life, the inability to forecast what character appellant would develop or her needs at the time of the death of the Hosmers or the objects of the Hosmers’ bounty at that time, and the various other conditions under which the contract was entered into, it is more inherently probable that the Hosmers simply agreed to treat the appellant in all respects as their own child than that they bound themselves irrevocably to leave her all their property, in any event.
To say that the testimony under consideration so distinctly and convincingly established an irrevocable agreement to transfer property that it was an error of law for the trial court to hold otherwise is a conclusion to which this court cannot subscribe.
So apt is the language of the opinion in the case of Turman v. Ellison, 37 Cal.App. at pages 209, 210, 174 P. 398, and so strongly in support of the position of this court, that we feel justified in quoting liberally from it:
"Actions to enforce oral agreements claimed to have been made with persons who are dead involve a dangerous assault upon property rights, and they are often supported by false testimony and they naturally and reasonably excite suspicion. And while they may be genuine and worthy of confirmation, they require the closest and most careful scrutiny to prevent injustice being done. (Wall’s Appeal, 111 Pa.St. 460, 56 Am.Rep. 288, 5 A. 220.) They afford and carry opportunity for fraud against the estates of deceased persons and a great temptation to perjury on the part of disappointed or avaricious relatives. (Hinkle v. Sage, 67 Ohio St. 256, 65 N.E. 999.) Such considerations could not be laid out of view by the trial judge.
"He could not fail to observe, also, that the testimony of the plaintiffs was given nearly nine years after the transaction is said to have occurred. It is quite probable— even more than probable— that after the lapse of such a period the memory would be inaccurate as to the facts and conditions of the affair. It requires a good deal of courage and assurance for a witness to undertake under such circumstances to state definitely just what was said and done. If he does confidently make such attempt without ever having reduced the details to writing or having kept them vivid in his memory by frequent expression or recital of what took place, it is difficult to give full credit to his story. The distrust is naturally augmented by the circumstance that the testimony is not presented in any court until all the parties who could have any interest in contradicting it are dead. While we cannot say that under such circumstances it must necessarily be rejected as unworthy of belief, yet it must inevitably occur that the trial judge will regard it with serious misgivings. (Mattingly v. Pennie, 105 Cal. 514, 39 P. 200 [45 Am.St.Rep. 87].)
"In fact, it is proper to say that evidence given under such circumstances should not only be received with the greatest caution, but it has been declared to be evidence of the weakest and most unsatisfactory nature. (Austin v. Wilcoxson, 149 Cal. 24, 84 P. 417.)"
As to the trial court’s rulings on evidence to which exception is taken, we find no error sufficient to warrant us in disturbing its judgment. Parts of the deposition of Edith L. Twycross were properly stricken as amounting to conclusions of the witness— such, for example, as "I was present and heard the agreement," and "it was then and there definitely agreed." There was permitted to remain in evidence, however, a sufficiently full statement of what was said and done by the parties to enable the court to pass upon the question as to whether or not an agreement such as relied upon by appellant was in fact made. Furthermore, an objection was properly sustained to a compound question containing the language "Do you know whether or not there was any agreement between Clymena W. Hosmer and any one else regarding the terms, or conditions, under which plaintiff became an inmate in her home?" This clearly called for the opinion of the witness. The fact that the question also contained a request of the witness to state when and where and with whom such agreement was made, and who were present, and all that was said or done on that occasion, does not impair the correctness of the court’s ruling.
The striking from the deposition of a baby picture of appellant and a letter written by appellant’s mother, offered for the purpose of showing the affection which appellant’s parents bore her, if erroneous because the grounds of the motion to strike were not stated, was at most a harmless error, for proof of protestations of love and affection by appellant’s parents in no wise tends to prove the terms of the agreement. Unless appellant’s parents were unnatural parents, it is to be presumed they loved her.
Regarding the final contention of appellant, namely, that the findings and judgment should be set aside as being in violation of the disclaimer and consent of the defendants Alfred S. and Arthur M. Copps, we find each so-called disclaimer to be in the following language: "I freely relinquish my rights and interests as a legatee under the will of said Clymena W. Hosmer, and I do hereby freely consent and stipulate that judgment may be entered in said action as prayed for in said complaint."
That portion of the prayer of said complaint applicable to the legatees asks that plaintiff be adjudged the equitable owner of the property described in the complaint, and that the beneficiaries under the will hold as trustees for plaintiff the interests bequeathed to them and that they be required to convey such interests to plaintiff.
In its decision the court found that, by written assignments dated in May, 1925, and filed herein on August 6, 1925, the two Copps transferred their several legacies to plaintiff (appellant herein). Appellant complains that the question of the making of these assignments was not within the issues, and that there is no evidence to support such findings. Be that as it may, it is clear that the stipulation and consent of the Copps that judgment be entered as prayed for is in no wise binding upon the other defendants (respondents herein).
"Statements in the pleadings of one defendant are not admissible against his codefendants." 22 C.J. 336.
The most that can be said of the answers and stipulations of the Copps is that they are sufficient to entitle appellant to a stipulated judgment against them. Since no findings are necessary to the entry of such a judgment (14 Cal.Jur. 877), the findings in reference to the assignment by the Copps are immaterial.
The judgment appealed from is affirmed as between appellant and respondents herein. As against the defendants Alfred S. Copps and Arthur M. Copps, it is so modified that plaintiff and appellant Ethel M. Staples have judgment against them as prayed for.
We concur: TYLER, P.J.; KNIGHT, J.