Opinion
11-23-1949
MONARCO v. LO GRECO et al. (two cases). Civ. 17106, 17107.
Allen M. Williams, Montrose, for appellant. Oliver O. Clark, Los Angeles, for respondents.
MONARCO
v.
LO GRECO et al. (two cases).
Nov. 23, 1949.
Rehearing Denied Dec. 9, 1949.
Hearing Granted Jan. 19, 1950. *
Allen M. Williams, Montrose, for appellant.
Oliver O. Clark, Los Angeles, for respondents.
DRAPEAU, Justice.
Some thirty years ago Natale Castiglia was married in Colorado. Natale had been married before. His first wife died. One daughter was born of that marriage. The daughter also married and had one son. This boy, the only grandson of Natale, was named Carmen Monarco. Carmen's mother passed away in 1918 while he was very young, and the boy was raised in Colorado. The evidence shows that Natale paid very little attention to Carmen until the last year of Natale's life.
Natale's second wife was Carmela. Carmela too had been married before, and she also had lost her first spouse by death. By her first marriage Carmela had three children: Rosie, John, and Christie. No children were born of the marriage between Natale and Carmela. Rosie, Carmela's daughter, subsequently married Nick Norcia.
Natale and Carmela were in their fifties when they were married. Shortly thereafter they disposed of their possessions in Colorado, and came to California. Natale had about $3,000 and Carmela about $1,000. Carmela's children were brought along, but John was never an active member of the family.
For working purposes, the family consisted of Natale, Carmela, Nick Norcia, the son-in-law, his wife, Rosie, and Christie, stepson of Natale and son of Carmela. Until Natale's death these people comprised a compact little unit, fronting a rough world. They worked together; at times they all lived together; and they prospered together.
As property was acquired, it was held in common tenancy among Nick and his wife, Rosie, as to an undivided one half, and Natale and Carmela as to the other half. Then Natale and Carmela held their half as joint tenants, so that upon the death of either the other would get all of the holdings of that branch of the family.
Christie's relationship to Natale and Carmela was more than a son. He was the working son; the one who kept the family together as the parents grew older. The family were good vineyardists. They all worked 'like horses.' Property near Cucamonga was purchased, and sold at a profit. Vineyards were leaded and operated successfully. A twenty-acre vineyard near La Canada was acquired and has since been kept. From work, and frugality, and savings, other properties were purchased, until, when Natale died, the family was wealthy, Natale's and Carmela's share being worth nearly $100,000.
For thirty years Christie participated in all these endeavors, without compensation. All he got was his board and room and spending money. He didn't go very far in grammar school; work kept him away from his classes; but Natale told him that that would be all right because when the old folks were through with it he would get all of their property. Sometimes when Christie worked for others for wages his earnings went into the family treasury. His stepfather's promise must have been often in his mind as he went from one row to another long row of grapes, cultivating and pruning the vines, and picking the crops.
An abundance of uncontradicted, clear and convincing testimony supports the proposition that it was orally agreed between Natale and Carmela that their property was to be held irrevocably in joint tenancy, and that, for his services, Christie was to get the old folks' property when they died. This agreement was implemented by vesting title in them in joint tenancy, and by wills made by each of them naming Christie as principal beneficiary, with remembrances for Rosie and John.
Then Natale died. The day after the funeral a bomshell was exploded in the family, for Carmen, the grandson, appeared and informed them that the old gentleman shortly before he died had terminated the joint tenancies, and by his last will had left to him, Carmen, his one half of all of the property theretofore in joint tenancy.
It is idle to speculate as to the motives which may have impelled Natale to do this. Perhaps it was some memory of his longdead first wife and daughter. Perhaps he thought that after all he should leave something to his grandson, his only descendant of flesh and blood. Or, perhaps it was because of some squabble with Christie and Christie's mother. The testimony indicates that this may have occurred.
In any event, Natale had the legal right to terminate the joint tenancies and to make a new will, unless bound by agreement with Carmela not to do so. No question is raised as to his mental capacity.
After probate proceedings and decree of distribution, issues as to the agreement and its effect were framed, and tried. The court found that there was a binding agreement between Natale and Carmela not to terminate the joint estate, and enforced its finding by judgments declaring Carmela to be the owner of the joint tenancy property distributed to Carmen in the probate proceedings. From these judgments appeals were perfected.
Two actions were consolidated and tried together. As identical questions are involved and the evidence is the same in each case, they will be considered and disposed of together. After the cases came to this court Carmela died; but for purposes of this opinion she will be referred to as 'Carmela,' and reference will not be made to her personal representatives substituted in her place.
For a long time in California equity enforced specific performance of contracts to will property to persons rendering services to decedents. It was said that when services of extraordinary and exceptional character continued over a long period of years and could not be compensated for with money, equity, to promote justice, would grant relief, even to the extent of following property disposed of by will contrary to the asserted agreement. Owens v. McNally, 113 Cal. 444, 45 P. 710, 33 L.R.A. 369; Rogers v. Schlotterback, 167 Cal. 35, 138 P. 728. In 1905 subdivision 6 of section 1624 of the Civil Code and in 1907 subdivision 6 of section 1973 of the Code of Civil Procedure were amended, so that our Statutes of Frauds now declares such agreements to be invalid unless evidenced by a memorandum in writing subscribed by the party to be charged.
With certain exceptions, our courts have enforced these amendments to these code sections since their enactment. O'Brien v. O'Brien, 197 Cal. 577, 241 P. 861.
Among these exceptions are cases in which courts of equity have held persons estopped to assert the bar of the Statute of Frauds. In Seymour v. Oelrichs, 156 Cal. 782, 794, 795, 106 P. 88, 94, 134 Am.St.Rep. 154, it is said:
'The right of courts of equity to hold a person estopped to assert the statute of frauds, where such assertion would amount to practicing a fraud, cannot be disputed. It is based upon the principle 'thoroughly established in equity, and applying in every transaction where the statute is invoked, that the statute of frauds, having been enacted for the purpose of preventing fraud, shall not be made the instrument of shielding, protecting or aiding the party who relies upon it in the perpetration of a fraud or in the consummation of a fraudulent scheme.' 2 Pomeroy's Equity Jurisprudence, § 921. It was said in Glass v. Hulbert, 102 Mass. 24, 35, 3 Am.Rep. 418: 'The fraud most commonly treated as taking an agreement out of the statute of frauds is that which consists in setting up the statute against its enforcement, after the other party has been induced to make expenditures, or a change of situation in regard to the subject-matter of the agreement, or upon the supposition that it was to be carried into execution and the assumption of rights thereby to be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injury and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the statute of frauds.''
Estoppel in these circumstances is not limited to any particular class of contracts included within the Statute of Frauds, providing always its essential elements are present. Notten v. Mensing, 3 Cal.2d 469, 45 P.2d 198.
In the instant case the trial court found all of the facts to estop Carmen Monarco as the sole beneficiary under the will of Natale Castiglia from taking the property devised and bequeathed to him by Natale. The evidence is clear and convincing and substantially supports the finding.
The judgments are affirmed.
WHITE, P. J., and DORAN, J., concur. --------------- * Subsequent opinion 220 P.2d 737.