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District Court of Appeal, Second District, Division 2, California.


Civ. 16870.

Decided: February 28, 1949

Edmond Gattone, of Los Angeles, for petitioner. George I. Devor, of Los Angeles, for real parties in interest, Abigail Parkhurst Simpson and E. Ross Simpson. No appearance for respondent Superior Court.

Prior to the filing of his petition herein petitioner instituted a proceeding in the court below to perpetuate the testimony of witnesses pursuant to the provisions of section 2084 of the Code of Civil Procedure. In his petition in that matter he made these allegations: He expects to be a party to an action in which Abigail Parkhurst Simpson and E. Ross Simpson will be adverse parties; the nature of the prospective action is one to determine the rights of the petitioner and others as beneficiaries of an alleged contract between Abigail Parkhurst Simpson and her former husband, George Stanley Brown, for the making of mutual wills; pursuant to such contract mutual wills were executed; thereafter George Stanley Brown died, his will was probated and his entire estate distributed to his widow; thereafter Abigail married E. Ross Simpson and has transferred substantially all her property, including that received from the estate of her former husband, to Simpson; the transfers were made without consideration and for the purpose of evading her obligations under the contract and defrauding the beneficiaries of property to which they would be entitled upon Abigail's death.

Upon the taking of the depositions the witnesses refused to answer certain of the questions propounded, whereupon petitioner made application to the court for an order compelling them to answer. The court having declined to make the order, petitioner filed the instant petition for a writ of mandate to compel the Superior Court to make an order directing the witnesses to complete their depositions and to answer the questions which they had theretofore refused to answer.

Respondent Superior Court did not appear. The real parties in interest, Abigail Parkhurst Simpson and E. Ross Simpson, filed a demurrer and an answer to the petition for a writ of mandate and petitioner demurred to the answer.

Petitioner asserts that a contract to make a testamentary disposition of property is valid and binding and will be enforced by the courts. He further asserts that while the promisee of the contract may not have his contractual rights adjudicated in probate court he may institute an independent action in equity for their enforcement. However, petitioner has not alleged that he is the promisee of any such contract. The cases cited are therefore not applicable. Petitioner alleges merely that Abigail Parkhurst Simpson and her former husband, George Stanley Brown, entered into a contract to execute mutual wills; that he is one of the beneficiaries of that contract; that pursuant to such contract mutual wills were executed.

A conjoint or mutual will may be revoked by the testator in the same manner as any other will, Prob.Code, sec. 23, and whoever executes a conjoint or mutual will does so with notice given by the statute that the will is subject to revocation. In re Estate of Rolls, 193 Cal. 594, 601, 226 P. 608; Rolls v. Allen, 204 Cal. 604, 607, 269 P. 450; Notten v. Mensing, 3 Cal.2d 469, 473, 45 P.2d 198; Lynch v. Lichtenthaler, 85 Cal.App.2d 437, 441, 193 P.2d 77. It may be conceded that where there is a valid agreement not to revoke, equity will make the parties who receive the estate constructive trustees for the intended beneficiaries under the revoked mutual will, in accordance with the terms of the contract. Notten v. Mensing, supra. Petitioner does not allege that the contract to make mutual wills contained any agreement not to revoke them. The will of George Stanley Brown recites that it “is made in consideration of a mutual will on the part of my wife, * of even date herewith and in pursuance to an agreement between myself and said wife, * for the making of these mutual Wills on the part of each of us *.” There is nothing in the language of the will indicating an agreement not to revoke and none may be implied.

Petitioner further contends that the surviving spouse who takes possession of property embraced by an agreement to make mutual wills is estopped from making any disposition of the property different from that provided in the agreement. The cases cited by petitioner in support of this contention involve contracts in which there is an agreement not to revoke and they are therefore not in point. Since the will of the husband devised his estate absolutely to his wife, and not upon condition or trust, she may dispose of it at will. In the absence of a valid contract not to revoke, petitioner has no cause of action against Abigail or her present husband to impose a constructive trust against the property distributed to her in the estate of her former husband.

Petitioner urges that the witnesses should be compelled to answer because the order of the Superior Court authorizing their examination has never been vacated, annulled or set aside. The perpetuation of testimony under section 2084 of the Code of Civil Procedure is not different from the taking of any other deposition and any question asked is subject to objection upon legal grounds. The witness may refuse to answer until the court rules that the questions are proper and should be answered as provided in section 1991 of the Code of Civil Procedure.

The demurrer to the petition for a writ of mandate is sustained. Petitioner's demurrer to the answer is overruled. The petition for a peremptory writ of mandate is denied and the alternative writ is discharged.

WILSON, Justice.

MOORE, P.J., and McCOMB, J., concur.