Opinion
As Modified on Denial of Rehearing Sept. 20, 1962.
Hearing Granted Nov. 8, 1962.
Opinion vacated 29 Cal.Rptr. 785, 380 P.2d 385.
Lillick, Geary McHose, Roethke & Myers, John C. McHose, Gordon K. Wright, Los Angeles, Bryant & Moltzen, W. Byron Bryant, San Francisco, Harry C. Mabry, Los Angeles, for plaintiff and respondent.
Franklin W. Peck, Los Angeles, for defendant and appellant Frank Townsend Greene.
Chapman, Frazer, Lindley & Young, Los Angeles, for defendant and appellant William Cornell Greene.
William Elliott Viney and William P. Camusi, Los Angeles, for defendant and appellant Florence Louise Greene Sharp.
Leo B. Ward, Los Angeles, in pro. per. and as executor and trustee under the last will of Mary Greene Wiswall, deceased, and as attorney for defendants and appellants Helen Stirk Greene and Florence Elaine Greene Lucas.
John B. Tittmann, Albuquerque, N. M., Keith F. Quail, James V. Robins, Gibson, Dunn & Crutcher, Norman S. Sterry, Frederic H. Sturdy, Los Angeles, for defendants and appellants Charles H. Greene and Clarence Kirk Greene, individually and as executors and trustees under the will of Mary Greene Wiswall, deceased, and defendant and appellant George A. Wiswall, as executor and trustee under the will of said Mary Greene Wiswall, deceased.
BALTHIS, Justice.
Plaintiff Eva Greene Day, stepdaughter of decedent Mary Greene Wiswall, brought this action on December 27, 1957, against six defendants, all children of Eva's deceased father, Colonel William C. Greene, and Mary, his second wife, asking that the court (1) impress a trust upon one-seventh of Mary's estate on the basis of an oral contract between Mary and Colonel Greene by which Mary agreed to leave her estate equally to plaintiff and the issue, defendants herein, of her marriage to Colonel Greene; (2) direct defendants to deliver one-seventh of Mary's estate to plaintiff and (3) make a The court held that plaintiff was the owner of a one-seventh undivided interest in Mary's residual estate as of November 27, 1955, the date of Mary's death, and that said interest became impressed with a constructive trust upon that date. Judgment was entered for plaintiff and defendants have appealed.
This case presents the story of a family that grew and prospered with the western United States.
Plaintiff Eva Greene Day (Eva) is a woman past 70 years of age. She is the daughter of Colonel William C. Greene (Colonel Greene), deceased, and his first wife, Ella Roberts Moson Greene (Ella). Ella and Colonel Greene were married in 1884 in Tombstone, Arizona. At the time of her marriage, Ella was the mother of two children by a prior marriage, Virginia Moson Martin (Virginia) and Frank Moson (Frank). Ella brought into the marriage certain property which she had inherited from her parents.
Ella died on December 5, 1899. Her estate included both separate and community property and all of such assets were taken possession of by Colonel Greene without administration of her estate. Under the intestate succession laws of the Territory of Arizona, Ella's three children, Virginia, Frank and Eva were entitled to share in the separate property included in her estate.
In a letter written by Colonel Greene to plaintiff on October 15, 1909, he stated: 'After your mother's death her estate was never probated. At the time of her marriage with me, she had $8,400.00, which I invested for her in cattle.'
On February 16, 1901, about 14 months after the death of his first wife Colonel Greene married Mary Proctor (Mary). Of this marriage six children were born, all of whom are living and are defendants in this action. At the time of his marriage to Mary, Colonel Greene had in his possession and under his control all of the separate property included in Ella's estate, also the community property of his marriage to Ella, together with his separate property accumulated by his efforts after Ella's death.
About two months after the marriage of Mary and Colonel Greene, the Greene Cattle Company was incorporated under the laws of the Territory of Arizona. Frank, Virginia and Eva were, at various times, given stock in the company. Sometime prior to the Colonel's death most of the remaining shares were placed in the name of Mary.
Colonel Greene died August 5, 1911. Under the terms of his holographic will dated November 26, 1910, his entire estate was 'bequeathed' to Mary. The estate consisted solely of mining properties located in Mexico, his interest in the Greene Cattle Company having been given to Mary through inter vivos transfers. There is a question as to whether his estate was insolvent, but this point is disputed by the parties. The Colonel's will made no reference to plaintiff Eva or to defendants, the children of his marriage to Mary.
Shortly following the reading of the will in August 1911, Mary told Eva that Eva's father, the Colonel, had orally agreed sometime before November 26, 1910, that he would leave all of his estate to Mary and that Mary in return would leave all of her estate equally to Eva and the six children of her marriage to the Colonel. The six children were never informed of this agreement and there is no evidence that plaintiff ever communicated it to anyone prior to the bringing of this action.
Prior to the death of Colonel Greene in 1911 (and prior to the execution of his will in 1910) it was recognized by both Colonel Greene and his second wife, Mary, that Ella's three children had some claim in some properties then possessed by Colonel Greene and Mary. In recognition of the unsatisfied claims of the children in the estate of their mother, on or about April 27, 1912, Mary Proctor Greene paid to Virginia Moson Martin the sum of $46,250 and to In addition, on April 23, 1912, Mary caused to be executed by the Greene Cattle Company a promissory note in favor of Eva in the principal sum of $75,000 and bearing interest at 6% per annum. In return plaintiff surrendered her shares of stock in the Greene Cattle Company. The court found that a portion of the note was in full settlement of plaintiff's claim in her mother's (Ella's) estate. The promissory note in favor of plaintiff, together with interest thereon, was paid during the lifetime of Mary.
Defendants contend that the acceptance by plaintiff of the promissory note and the full payment thereof constitute an accord and satisfaction by plaintiff as to any claim she may have held against her father's (Colonel Greene's) estate or by reason of the oral agreement by Mary to make the will mentioned above. The trial court found against defendants on this defense of accord and satisfaction.
After the $75,000 note transaction in 1912, no transactions occurred between plaintiff and Mary up to and including the time of her death on November 27, 1955.
Mary was predeceased by her second husband, Charles E. Wiswall, whom she married in 1918. During all times subsequent to the death of Colonel Greene and until her death in 1955 Mary retained and benefited from the properties acquired through her marriage to Colonel Greene.
Mary executed her last will and testament on November 10, 1054. Under the terms of the will, her residuary estate totaling over $8,000,000, comprised largely of cattle and mining interests, was passed to the six children of her marriage to Colonel Greene. Plaintiff received a bequest of $2,500. By failing to include plaintiff as an equal beneficiary with her children, it is alleged and the court so found, that Mary breached the oral contract made with Colonel Greene some forty-three years before her death.
The action here involved (numbered 692673 and sometimes referred to as the 'second California action') resulted in the judgment in favor of plaintiff from which defendants appeal.
It may be material, and is interesting, to note that other phases of the litigation have been determined. On July 13, 1956, plaintiff commenced an action in Arizona to recover her interest in her father's estate on the theory that she was a pretermitted heir. This action, after dismissal pursuant to defendant's motion in the Arizona trial court, was appealed to the Supreme Court of that state.
The 'first California action' was commenced in the Superior Court of Los Angeles County on August 31, 1956. An amended complaint was filed therein on December 15, 1958, which contains three causes of action. The objective of the three causes of action in the amended complaint in the first action was to establish that plaintiff was a pretermitted heir of her father, Colonel Greene, who died testate August 5, 1911, a resident of the state of California. In this appeal we are not concerned with that action for the reason that the trial court found and determined that said action is barred by laches and that plaintiff take nothing therein. No appeal has been taken from that judgment and it has become final.
The 'second California action' (numbered 692673) was filed December 27, 1957, and an amended complaint was filed November 14, 1958. The amended complaint contains five causes of action based upon an alleged breach of an alleged oral agreement to make a will. The relief sought in the action is to impress a constructive trust upon the residual estate of decedent (Mary) to the extent of one-seventh in favor of plaintiff.
As noted above, each of the five causes of action set forth in the amended complaint are predicated upon the oral agreement between Colonel Greene and his second wife, Mary, alleged as follows:
'* * * plaintiff's father [Colonel Greene] mutually and orally agreed The trial court made the following finding:
'It is true that sometime * * * prior to November 26, 1910, plaintiff's father William Cornell Greene and plaintiff's stepmother Mary Proctor Greene, entered into the following mutual oral agreement to wit:
'That he [William Cornell Greene] would leave everything to me [Mary Proctor Greene] in my lifetime and that I [Mary Proctor Greene] would take care of you [plaintiff] upon my death, that you [plaintiff] would share with my children share and share alike."
The court further found that Colonel Greene relied upon such mutual agreement as follows: '* * * in reliance upon the aforesaid mutual agreement between plaintiff's father and steptmother made for the express benefit of plaintiff herein, plaintiff's father did forego the right to make transfers during his lifetime or testamentary disposition on his death to plaintiff, his own daughter, or any of his said issue, but left his said entire estate, before and at his death, to his then wife, plaintiff's stepmother Mary Greene, later Mary Greene Wiswall, and she received and kept said entire estate of plaintiff's father and accepted and retained the full benefits of the said mutual agreement made with him as aforesaid.'
The court also found that plaintiff's stepmother Mary 'breached her aforesaid mutual agreement with plaintiff's father' and 'did not on her death leave her estate to plaintiff and her six half-brothers and half-sisters share and share alike.' One of the conclusions of the court was 'That the breach of the aforesaid mutual agreement by Mary Proctor Greene Wiswall has unjustly enriched and will unjustly enrich the six children of said Mary Proctor Greene Wiswall, defendants herein named.'
On the basis of the foregoing findings, the court 'Ordered, Adjudged and Decreed that plaintiff Eva Greene Day at the death of Mary Proctor Greene Wiswall on November 27, 1955, became, thereafter was, and now is, the owner of and entitled to a noe-seventh undivided interest in the entire residual estate of said Mary Proctor Greene Wiswall, deceased, of whatsoever nature and wheresoever situated * * *
That plaintiff's aforesaid one-seventh undivided interest in the entire residual estate of Mary Rpoctor Greene Wiswall at the date of the death of the decedent on November 27, 1955 * * * became impressed with a trust in favor of plaintiff, and any title or possession of said interest thereafter by any of the defendants herein was, is and shall be that of a trustee for the benefit of plaintiff herein.'
Defendants urge four separate grounds upon which the judgment appealed from should be reversed: (1) the action is essentially one to enforce an oral contract and is barred by the two-year statute of limitations; (2) the finding by the trial court of an oral agreement is not supported by the evidence; (3) enforcement of the oral agreement is barred by the statute of frauds and the findings upon which an estoppel to plead the statute is based are without evidentiary support; (4) the finding that the note and mortgage given to plaintiff was not an accord and satisfaction is without evidentiary support. If defendant prevails on any one of these points, the judgment must be reversed. We shall first determine whether plaintiff's action is barred by the statute of limitations.
Decedent Mary Wiswall died on November 27, 1955, and the action here upon which judgment was rendered in favor of plaintiff was not filed until December 27,
Although defendants have raised the point on appeal that the finding of the trial court of an oral agreement made between Colonel Greene and Mary is not supported by the evidence, for the purposes of the discussion of the point on the statute of limitations applicable, we accept the finding of the trial court as true and as properly supported.
In considering the issue presented it is necessary for us to discuss (1) the principle involved in the determination of the applicable statute of limitation; (2) an analysis of the basic right sought to be enforced by plaintiff in this action; and (3) the distinguishing of cases where a constructive trust has been imposed based upon fraud, or where the statute applied is based upon a resulting trust.
1. The principle involved in the determination of the applicable statute of limitation.
The principle to be used is very clearly stated in Jefferson v. J. E. French Co., 54 Cal.2d 717, 7 Cal.Rptr. 899, 355 P.2d 643, where plaintiff sued on an oral contract of employment but alleged that the balance due him could only be determined by an accounting. Defendant contended that the two-year statute was applicable while plaintiff argued that the four-year statute governed. The court said:
'Plaintiff argues that his action is essentially equitable in nature and that such actions are governed by the four-year limitation of section 343. But the primary purpose of the action is to recover money under the oral contract, and the nature of the right sued upon, not the form of action or the relief demanded, determines the applicability of the statute of limitations. [Citations.] * * * The accounting is merely ancillary to the perfection of plaintiff's right under the oral contract, and that aspect of the action should not operate to avoid the effect of a statute prescribing a period of limitation with respect to the right basically in issue. * * * There are a number of decisions which hold, or contain language that might be construed to mean, that section 343 is the applicable statute of limitations if an accounting is involved, but none of them considers the problem in the light of the principle that the nature of the right sued upon should be determinative rather than matters of form and procedure.' (pages 718-719, 7 Cal.Rptr. at p. 900, 355 P.2d at p. 645.)
In Leeper v. Beltrami, 53 Cal.2d 195, 1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803, the action was by several plaintiffs against several defendants. The suit against all the defendants other than Scheidel was based upon the fact that through coercion defendants had forced plaintiffs to twice pay the same debt. It was alleged that the funds to make the second payment were borrowed from Scheidel and certain real property was deeded to him as security for the monies he loaned plaintiff; that Scheidel knew the second payment was being exacted by duress. The only portion of the
'If the action be considered one for rescission the plaintiffs are barred by reason of their delay. Rescission, whether legal or equitable, will not be permitted unless the plaintiff acts promptly in rescinding. * * * The complaint here shows on its face a two-year delay as to one plaintiff and a three-year delay as to the other, before plaintiffs attempted to rescind. Such a delay, unexplained, precludes relief. [Citations.] * * * Plaintiffs, in an attempt to escape the rule of these cases, contend that this action is not for rescission, but one for the recovery of real property, and that the applicable code section is section 318 of the Code of Civil Procedure providing a five-year period for the bringing of an action to recover real property or its possession. If the action is one essentially to recover the real property, the five-year section applies. [Citations.] * * * The authorities are in confusion. * * *
'On the other hand, the more modern rule places more emphasis on the basic rights involved. Thus it has been held that, where the complaint is in two counts, one to quiet title, and one to cancel a deed, if the count to quiet title depends upon the cancellation count, the complaint must stand or fall on the cancellation count. Ephraim v. Metropolitan Trust Co., 28 Cal.2d 824, 833, 172 P.2d 501. And there are many cases holding that, where the legal title is in the defendant, and the plaintiff seeks to quiet title on the ground defendant's title was secured from plaintiff by fraud, the plaintiff must plead and prove facts constituting the fraud. [Citing cases.] * * * Thus the modern tendency is to look beyond the relief sought, and to view the matter from the basic cause of action giving rise to the plaintiff's right to relief. The approach is a sensible one.'
In Bell v. Bank of California, 153 Cal. 234, 243, 94 P. 889, 893 the Supreme Court said: 'The nature of the right sued upon and not the form of the action nor the relief demanded, determines the applicability of the statute of limitations under our Code [citing cases]. And it is immaterial whether equitable or legal relief is sought. Williams v. Southern Pac. Co., 150 Cal. 624, 89 P. 599.'
In Maguire v. Hibernia S. & L. Soc., 23 Cal.2d 719, 733-734, 146 P.2d 673, 680, 151 A.L.R. 1062, the court said: 'Plaintiffs next contend that it was error to sustain the demurrer on the ground that the alleged causes of action were barred by the statute of limitations and by laches. They argue, first, that the statute of limitations can have no application to an action for declaratory relief since the main allegation in such an action is the existence of an actual, and consequently, present controversy. [Citing cases.] The argument overlooks the fact that the nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code. [Citing cases.] * * * We are of the opinion that the period of limitations applicable to ordinary actions at law and suits in equity should be applied in like manner to actions for declaratory relief. Thus, if declaratory relief is sought with reference to an obligation which has been breached and the right to commence an action for 'coercive' relief upon the cause of action arising therefrom is barred by the statute, the right to declaratory relief is likewise barred.'
The Supreme Court having clearly held that the nature of the right sued upon, not the form of action or relief demanded, determines 2. Analysis of the basic right sought to be enforced by plaintiff in this action.
The right basically in issue in this case was the breach by plaintiff's stepmother of the oral agreement between herself and her husband, plaintiff's father.
In each cause of action alleged in plaintiff's amended complaint, the oral contract between Colonel Greene and the decedent, Mary, is alleged and is the heart of the action and the basis for the relief sought. While the relief sought is the impressment of a constructive trust upon the property interests of defendants, this is only the equitable remedy used to give plaintiff quasi-specific performance of the oral contract. The impressment of the trust is ancillary to the right of action which is based upon the breach of the oral agreement.
In Ludwicki v. Guerin, 57 Cal.2d 143, 17 Cal.Rptr. 823, 367 P.2d 415, the action was brought to impress a trust on one-half of the property in an estate on the basis of a written contract executed by decedent and his wife. In affirming a judgment for defendant, the court first discusses the nature of the action, saying (57 A.C., p. 146, 17 Cal.Rptr. at p. 825, 367 P.2d at p. 417): 'An action of the type involved here has been called one for quasi specific performance of the contract to make a will (See Bank of California, Nat. Ass'n v. Superior Court, etc., 16 Cal.2d 516, 524, 106 P.2d 879.) Since the making of a will cannot be compelled, there can be no specific performance of such a contract in the strict sense, but under certain circumstances equity will give relief equivalent to specific performance by impressing a constructive trust upon the property which decedent had promised to leave to plaintiff. * * * Some decisions have stated or implied that the action for quasi-specific performance accrues and the statute starts to run at the promisor's death. * * * We have concluded that for the reasons hereafter discussed this is the proper rule.' (See also Vito v. McDonald, 179 Cal.App.2d 509, 510, 3 Cal.Rptr. 842; Smith v. Minnesota Mut. Life Ins. Co., 86 Cal.App.2d 581, 590, 195 P.2d 457.)
In Bank of California v. Superior Court, 16 Cal.2d 516, 106 P.2d 879, the original action filed was to enforce an alleged contract by which decedent agreed to leave her entire estate to plaintiff and the relief prayed for was that plaintiff be declared to be the owner of the entire estate and that defendants (the beneficiaries under decedent's will) be ordered to execute deeds to plaintiff. In discussing the nature of the action the court said (p. 524, 106 P.2d p. 884): 'The nature of such an action has been frequently discussed by the courts. The probate court cannot, of course, take cognizance of the contract, and an equity court cannot compel the making of a will. Hence, there is no specific performance of the contract in the strict sense. But equity gives relief which is the equivalent of a specific performance. Though the estate may be probated and the property distributed accordingly, the court will, in an action by the promisee, impose a constructive trust upon any particular property in the hands of the individual distributee. This relief is sometimes called 'quasispecific performance', since it accomplishes the substantial result of enforcement of the contract.'
Plaintiff's right to have a trust imposed upon any part of Mary's residual estate or upon any part of the residuary estate distributed to defendants depended upon the establishment of (1) an oral agreement between plaintiff's stepmother and plaintiff's father; (2) a breach of such oral agreement. If she failed to establish either of those facts, she could not recover. If she established both of them, then the trial court, in order to enforce specifically the oral agreement, could impose a constructive trust upon the residuary estate and upon the defendants as to any part of said residuary estate distributed to them.
If one of the parties to the oral contract were seeking specific performance or damages, There is no basic or fundamental action such as one to impress a constructive trust. Dean Roscoe Pound has pointed out that the imposition of a constructive trust is not a substantive right but merely a remedy. Dean Pound says:
'A group of cases involving constructive trusts invite consideration of what such a 'trust' really is. An express trust is a substantive institution. Constructive trust, on the other hand, is purely a remedial institution. As the chancellor acted in personam, one of the most effective remedial expedients at his command was to treat a defendant as if he were a trustee and put pressure upon his person to compel him to act accordingly.'
After discussing the different classes of actions in which a constructive trust can be imposed, Dean Pound continues:
'In neither case is there the substance of a trust. This is not a matter of mere academic classification. Of the cases decided during the past year, two clearly recognized that a constructive trust is imposed simply as a remedy--in those cases as a convenient form of specific performance.' (33 Harvard Law Review, 420, 421.)
In 4 Scott on Trusts (2 ed. 1956) section 461, p. 3101, it is pointed out that with reference to providing a remedy to prevent unjust enrichment, the use of a constructive trust is procedural. The author says:
'The general principles with reference to unjust enrichment which are at the basis of constructive trusts and the analogous equitable remedies of equitable lien and subrogation are also at the basis of quasi-contractual obligations. The chief difference is that quasi-contractual obligations are ordinarily enforceable by an action at law, the purpose of which is to impose a personal liability upon the defendant; whereas the enforcement of a constructive trust is by a proceeding in equity to compel the defendant to surrender specific property. The distinction is procedural rather than substantive.' (Italics ours.)
The rule is that where the form of relief sought includes the remedial device of a constructive trust, the period of limitation varies with the substantive nature of the action. (Unkel v. Robinson, 163 Cal. 648, 126 P. 485; Pacific Nat. Bank of San Francisco v. Corona Nat. Bank, 113 Cal.App. 366, 298 P. 144.) The 'substantive nature of the action' is determined by the basic right which gives plaintiff an equitable interest in the property upon which the constructive trust is sought to be impressed. (Ludwicki v. Guerin, 57 Cal.2d 143, 147, 17 Cal.Rptr. 823, 367 P.2d 415; Beard v. Melvin, 60 Cal.App.2d 421, 140 P.2d 720; Pacific Nat. Bank of San Francisco v. Corona Nat. Bank, 113 Cal.App. 366, 298 P. 144.)
In Beard v. Melvin, 60 Cal.App.2d 421, 140 P.2d 720, supra, plaintiff sought to avoid the writing requirement of the statute of frauds applicable to contracts to make a will by framing his complaint on a theory of quasi-contract and seeking a constructive trust. The court held that since no contract under the circumstances could be implied without reference to an alleged actual contract to make a will, the action was necessarily barred by the statute of frauds, thereby indicating that in cases of this type the primary right is enforcement of the alleged contract.
In the case at bar all rights claimed by plaintiff in her stepmother's estate flow from the contract.
Distinguishing of cases where a constructive trust has been imposed based upon In certain cases where fraud is the gravamen of the action, and a constructive trust is imposed because of such fraud, the applicable statute may be the three-year statute (section 338, Subd. 4, Code of Civil Procedure; see Brazil v. Silva, 181 Cal. 490, 185 P. 174; Sears v. Rule, 27 Cal.2d 131, 163 P.2d 443; Mills v. Mills, 147 Cal.App.2d 107, 305 P.2d 61.)
In Ludwicki v. Guerin, supra, 57 Cal.2d 143, 149, 17 Cal.Rptr. 823, 827, 367 P.2d 415, 419, the Supreme Court disapproved the reasoning in the opinion of Brazil v. Silva, 181 Cal. 490, 185 P. 174, where the court had held that in an action to recover real property on the basis of fraudulent prevention of revocation of a will, the action was not barred because it came within the five-year period for the recovery of real property as well as the three-year section for fraud cases. Noting that only the fraud section should be applicable in that case, the court in Ludwicki said: 'The court, however [in using the five-year provision], ignored the fact that the right to recover possession was necessarily dependent upon the existence of plaintiffs' equitable interest in the estate and could not be sustained if the action to impose the trust was barred.' (57 A.C. 143, 149, 17 Cal.Rptr. 827, 367 P.2d 419.) In Brazil v. Silva, supra, the basic right to relief was predicated on defendant's fraud which thereby involved the three-year limitation period.
Plaintiff here cannot contend validly that when the relief sought is the impressment of a constructive trust, section 338 is invoked ipso facto. As stated in 4 Scott on Trusts, 2d ed. (1956), section 461, p. 3100: 'there are numerous situations in which a constructive trust is imposed in the absence of fraud.' The instant case is an example of this. Quasi-specific enforcement of the promise is given, not because of fraud, but because the usual action of specific performance will not lie where the contract is one to make a will (Bank of California v. Superior Court, 16 Cal.2d 516, 106 P.2d 879.) This is an example of the flexibility traditionally employed by equity to achieve just ends, and 'a constructive trust is the formula through which the conscience of equity finds its expression.' (Cardozo, J. in Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378.)
Where the action is clearly one for quasi-specific performance, the statute commences to run at the death of the promisor. (Ludwicki v. Guerin, supra, 57 Cal.2d 143, 147, 17 Cal.Rptr. 823, 367 P.2d 415.) This appears to be inconsistent with the application of the fraud section of the statute of limitations because in such case the statute does not begin to run until the fraud is discovered.
The instant case was not tried upon the theory of fraud. There is no finding of fraud whatsoever, nor was there any effective allegation of fraud in plaintiff's complaint. Plaintiff's amended complaint asserts that Mary's failure to abide by her agreement with the Colonel 'was a fraud in law and a fraud in fact on the plaintiff herein.' This is merely a legal conclusion. No facts are pleaded indicating that Mary's breach of the agreement constituted fraud. Furthermore, not only was there a complete absence of any finding of fraud on Mary's part, but to the contrary the trial court indicated to counsel at the conclusion of the trial that in the court's view of the case Mary was neither a dishonest woman nor guilty of fraud upon anyone. The record in this case does not reveal any basis upon which a finding of fraud by Mary could be predicated.
The amended complaint also alleges that defendants had knowledge of plaintiff's rights and wrongfully and maliciously withheld plaintiff's one-seventh interest in the estate. However, the trial court expressly found that defendants had no knowledge of the oral agreement and this precludes fraud as the basis of the action insofar as defendants are directly concerned.
Any contention that the three-year limitation for actions based on fraud In Keefe v. Keefe, 19 Cal.App. 310, 125 P. 929, a case heavily relied upon by plaintiff, the father of plaintiff in that case had died intestate, leaving real property to pass to his widow and five children. The mother had a meeting with her son (the plaintiff) requesting a conveyance of his interest to her, saying: 'Charlie, you will be getting old one of these days, and if you take your share you will only squander it. Let me have it, and I will give it back to you on my death.' The attorney present said to the plaintiff son: 'Charlie, remember now this share that you are giving to your mother will be given back to you on her death.' The mother died without leaving the property interest to her son and he brought the action against the beneficiaries under his mother's will. On the question of the statute of limitations, the court treated the case as one involving a resulting trust and held that the four-year statute (§ 343, Code of Civil Procedure) was the one applicable. In the Keefe case, an actual conveyance was made by the son to his mother and the parties may have intended that he would remain as the equitable owner and the mother would simply hold legal title for the son until her death. Under this view, a resulting trust might have been established. Generally, a resulting trust arises from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. (See Restatement, Trusts, § 404.) A resulting trust has been termed an 'intentionenforcing' trust.
In the instant case, we do not believe the resulting trust theory was applicable (there was no conveyance of property by plaintiff in this case) and therefore the Keefe case as authority for the application of the four-year statute is not persuasive.
Counsel for plaintiff discusses in his brief the numerous equities in favor of plaintiff in this case. While undoubtedly there were equities involved on both sides, we believe it necessary to decide the statute of limitations question on its legal merits.
A statute of limitation is one of repose, enacted as a matter of public policy to promote justice by preventing the assertion of stale claims. This policy is particularly applicable as to actions which involve either the distribution of property from decedents' estates or the holding and receipt of property from decedents' estates. Here the law favors expedition rather than delays in the handling or clearing of properties distributed or to be distributed from decedents' estates.
In passing it may be noted that the oral contract sought to be enforced here was found by the court to have been made forty-seven years prior to the time when the action was filed; the trial court also found that defendants had no knowledge of the oral agreement during the lifetime of decedent (Mary) nor until the action was filed.
In summary we hold that (1) the principle to be used in determining the applicable statute to limitations is the nature of the right sued upon rather than the form of action used or remedy sought; (2) the basic right sought to be enforced is the oral contract found by the trial court; (3) the constructive trust sought to be imposed is the remedy only and not the basic right to be enforced; (4) the gravamen of the action was not fraud practiced either by the decedent (Mary) or defendants; (5) in this action for quasi-specific performance of the oral contract, the two-year statute (§ 339, It should be noted that of the six defendants in this cause only five have appealed. The general rule is that a non-appealing defendant may not benefit in an appeal by his codefendants (Lake v. Superior Court, 187 Cal. 116, 200 P. 1041; Smith v. Anglo-California Trust Co., 205 Cal. 496, 271 P. 898). 'But this rule is not applied where portions of a judgment adverse to a non-appealing party are so interwoven with the whole that appeal from a part affects the other parts; in such a situation the appellate court can reverse the entire judgment if it is necessary to do justice.' (Blache v. Blache, 37 Cal.2d 531, 538, 233 P.2d 547, 551.) This is especially true where a reversal removes the legal basis for the judgment (Vyn v. Northwest Casualty Co., 47 Cal.2d 89, 95, 301 P.2d 869,) as is the case here.
Since the above is determinative of the case, it is unnecessary to discuss the other points raised on appeal. Judgment in favor of plaintiff is reversed with direction to enter judgment in favor of all defendants.
BURKE, P.J., and JEFFERSON J., concur.
Section 339: 'Whthin two years. 1. An action upon a contract, obligation or liability not founded upon an instrument of writing * * *.'