HALLDIN v. May L. Erickson, Raymond Halldin, Dexter Halldin and Ruth Halldin, Respondents.

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District Court of Appeal, Second District, Division 3, California.

T. A. HALLDIN, Plaintiff and Appellant, v. William A. USHER, Mrs. William A. Usher, also known as Jane Doe Usher, Raymond Halldin, Gladys Halldin, Ruth Halldin, Dexter Halldin and May L. Erickson, Defendants, May L. Erickson, Raymond Halldin, Dexter Halldin and Ruth Halldin, Respondents.

Civ. 22158.

Decided: September 19, 1957

Mcbeth & Ford and Patrick H. Ford, Los Angeles, for appellant. Nicolas Ferrara, Los Angeles for respondents.

Appeal by plaintiff from an adverse judgment in a suit for declaratory relief. Plaintiff seeks a declaration that an alleged contract is valid and imposes a trust on certain realty and the proceeds of the sale of other realty.

Plaintiff is the son of defendant May L. Erickson and of K. Henry Halldin, deceased, and the brother of defendants Raymond and Dexter Halldin and of Ruth Halldin Law. In July 1945 K. Henry Halldin and Mrs. Erickson were husband and wife. On July 5 Mr. and Mrs. Halldin (Mrs. Erickson) executed this instrument:

‘July 5–1945

‘K. Henry Halldin and wife May L. Halldin herewith agree that in case of death the on that survive shall have whole controll of our property.

‘We also state that when both of us are gone.

‘The property 1041–1043–1043–1/2 at Magnolia ave Los Angeles shall in equal parts go to our children.

‘But property 1236 Ritos Vitas are Los Angeles and the lot in San Clemente go to our son T. A. Halldin as his special share beside his share in the Magnolia ave property.

‘K. Henry Halldin

‘May L. Halldin

‘Subscribed and sworn to before me this

5th day of July 1945

Harry Christensen

Notary Public in & for the Co. of Los Angeles State of Calif. * * *'

[Seal]

The document was in the handwriting of Mr. Halldin except for the signatures of ‘May L. Halldin’ and the notary and for the notarial stamp and seal. It was written on small letter-size stationery.

At the time of the execution of the instrument Mr. and Mrs. Halldin had four living children: plaintiff and defendants Raymond, Dexter, and Ruth. A daughter had died leaving a son who survived Mr. Halldin. Mr. Halldin died in July 1947. Mrs. Halldin remarried and is now Mrs. May L. Erickson.

On March 21, 1955, Mrs. Erickson sold the Magnolia Avenue property to defendants Usher. Plaintiff then brought this suit for declaratory relief claiming that the instrument of July 5, 1945, was a contract between his parents for the benefit of him, his brothers, and sister. The complaint alleges Dexter Halldin and Ruth Halldin were joined as necessary parties; that he claims no cause of action against them.

The court found: 1. Defendants Usher were bona fide purchasers for value of the Magnolia Avenue property. 2. The instrument of July 5, 1945, did not create or establish any trust in praesenti of any of the property described therein. 3. Plaintiff has no legal or equitable right, title, or interest in any of the property described therein nor any interest in or liens against the proceeds of the sale of the Magnolia Avenue property. 4. Mr. and Mrs. Halldin did not intend to transfer a present title and interest in their property to anyone but were endeavoring to arrange a disposition of their property which should take effect on their death, such disposition being in effect testamentary. The conclusions of law substantially reiterate the findings and in addition state that the instrument of July 5, 1945, ‘is not a valid enforceable contract.’

Judgment was for defendants. Plaintiff appeals only from that part of the judgment in favor of defendants May L. Erickson, Raymond and Dexter Halldin, and Ruth Halldin Law. He contends the instrument of July 5, 1945, is a valid contract and not testamentary in effect, that he is a third party beneficiary with the right to enforce it, and that he is entitled to relief so declaring.

We think it evident the instrument is a contract and that it is not testamentary in effect. A contract is an agreement to do or not to do a certain thing. Civ. Code, § 1549. Mr. and Mrs. Halldin ‘herewith agree.’ They ‘agree’ that on the death of either, the survivor ‘shall have whole controll of our property.’ They continued, ‘We also state that when both of us are gone’ the Magnolia Avenue property ‘shall in equal parts go to our children,’ and the other two items of realty ‘to our son,’ plaintiff, as his special share besides his share in the Magnolia Avenue property. Mr. and Mrs. Halldin subscribed the instrument and swore thereto before a notary public, the manager of their bank. The instrument contains all the essential elements of a contract: it is an agreement by competent parties, it evidences their consent, it has a lawful object. Civ. Code, § 1550. The agreement created contractual obligations. See In re Estate of Howe, 31 Cal.2d 395, 397–400, 189 P.2d 5, 1 A.L.R.2d 1171. Being in writing, it is presumed there was a good and sufficient consideration. Code Civ.Proc. § 1963(39). ‘An agreement or promise to make a will is not testamentary simply because the party executing or making it undertakes at some time in the future to make a specified devise or bequest, and it is not, therefore, essential to its validity that it be executed with the formalities of a will.’ 57 Am.Jur. 149, § 167. Either a husband or wife may enter into a contract with the other respecting property. Civ. Code, § 158.

Whether an instrument is ambiguous or uncertain is a question of law, and the lower court's finding on that issue is not binding on a reviewing court. Brant v. California Dairies, Inc., 4 Cal.2d 128, 133, 48 P.2d 13; Wagner v. Shapona, 123 Cal.App.2d 451, 460, 267 P.2d 378. The language of the instrument is clear, unambiguous, and explicit that Mr. and Mrs. Halldin intended it to be a contract between them pertaining to the disposition of their realty. Civ. Code, § 1638.

A person may contract to make a particular disposition of his property by will. Brown v. Superior Court, 34 Cal.2d 559, 563–565, 212 P.2d 878; Daniels v. Bridges, 123 Cal.App.2d 585, 589, 267 P.2d 343; Sonnicksen v. Sonnicksen, 45 Cal.App.2d 46, 52, 113 P.2d 495; O'Neil v. Ross, 98 Cal.App. 306, 315, 277 P. 123. The right to enforce such a contract is not restricted to the promisee. A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it. Civ.Code, § 1559; Garratt v. Baker, 5 Cal.2d 745, 748, 56 P.2d 225. A child can enforce the provisions of his parents' contract made for his benefit in the same manner as could a party to the agreement. Walsh v. Walsh, 42 Cal.App.2d 282, 285–286, 108 P.2d 760; Reliance Life Ins. Co. v. Jaffe, 121 Cal.App.2d 241, 244, 263 P.2d 82; Waxman v. Citizens Nat. Trust & Sav. Bk., 123 Cal.App.2d 145, 148–149, 266 P.2d 48. Intended legatees and devisees are entitled to enforce their rights under the contract. Daniels v. Bridges, supra, 123 Cal.App.2d at page 590, 267 P.2d 343; O'Neil v. Ross, supra, 98 Cal.App. 315–316, 277 P. 123.

Speaking of the rights of an intended devisee under a contract such as we have here, the Supreme Court has declared:

‘It seems clear that he [the intended devisee] would at least be entitled to bring an action to obtain a declaration of his rights under the alleged agreement. Code Civ.Proc., § 1060. He may also be entitled to other relief. It is well settled that a person may contract to make a particular disposition of his property by will, and in case of a breach the promisee has several available remedies. He may bring an action at law for damages. See O'Brien v. O'Brien, 197 Cal. 577, 588–589, 241 P. 861; Roy v. Pos, 183 Cal. 359, 366–367, 191 P. 542; Morrison v. Land, 169 Cal. 580, 590, 147 P. 259; 4 Page on Wills (Lifetime Ed.) §§ 1733, 1744. Equitable relief in the form of ‘quasi specific performance’ of the contract may be obtained where the remedy at law is inadequate and the promisor has failed to make the promised disposition of his will. Jones v. Clark, 19 Cal.2d 156, 119 P.2d 731; Bank of California v. Superior Court, 16 Cal.2d 516, 524, 106 P.2d 879; Wolf v. Donahue, 206 Cal. 213, 273 P. 547. It has also been recognized that the promisees of such a contract need not wait until the death of the promisor but may seek equitable relief against inter-vivos conveyances made by him in fraud of their rights. Osborn v. Hoyt, 181 Cal. 336, 184 P. 854; Rogers v. Schlotterback, 167 Cal. 35, 48, 138 P. 728; see note, 108 A.L.R. 867; 4 Page on Wills (Lifetime Ed.) §§ 1727, 1729, 1744.

‘The right to enforce such a contract to make a particular disposition of property on death is not restricted to the promisee. Where two parties agree to make mutual wills, each promising to dispose of his property to the other or, if the other be dead, to certain third persons, and one of the parties performs by leaving his property to the other, the intended devisees and legatees are entitled to enforce their rights as beneficiaries under the agreement. The contracting party who survives becomes estopped from making any other or different disposition of the property, and his obligations under the agreement become absolutely irrevocable and enforceable against him, at least where he avails himself of the provisions of decedent's will in his favor and accepts substantial benefits thereunder. Notten v. Mensing, 3 Cal.2d 469, 473, 45 P.2d 198; Sonnicksen v. Sonnicksen, 45 Cal.App.2d 46, 52–55, 113 P.2d 465; see Rolls v. Allen, 204 Cal. 604, 609, 269 P. 450. * * * The rights of the parties depend upon the contract, and the revocation of the will or other breach of the contract does not prevent the intended devisee or legatee from enforcing the contractual obligations.’ Brown v. Superior Court, 34 Cal.2d 559, 563–565, 212 P.2d 878, 881. Cf. Riley v. Turpin, 47 Cal.2d 152, 301 P.2d 834.

In Sonnicksen v. Sonnicksen, 45 Cal.App.2d 46, 113 P.2d 495, cited with approval in Brown v. Superior Court, supra, the plaintiffs' parents, Else and Andrew, executed an agreement containing this provision (45 Cal.App.2d at page 49, 113 P.2d at page 497): “Each of said parties hereby agrees that in consideration of the premises that upon the death of the first of them that all of the property of either or both of them will go to the survivor, and upon the death of such survivor will go to the four children of these parties, share and share alike, or in the event of the death of any of them prior to the death of such survivor, to the heirs at law of such deceased children, and both of said parties agree to make a will which will carry out the above provision * * *.” Neither party complied with the contract. When Else died a will she had made before the execution of the agreement devising all her interest in the property to the plaintiffs was admitted to probate. In a suit by Andrew against Else's executor, the judgment decreed that Andrew was the sole owner of the property described in the agreement. This judgment became final. Later Andrew married the defendant who had knowledge of the agreement. Andrew then executed a will devising to the defendant ‘such part of my estate as I may be legally or lawfully entitled to bequeath or devise to her.’ Andrew died and his will was admitted to probate. The plaintiffs, children of Else and Andrew, commenced suit to quiet title to the property covered in the agreement. Judgment was for the plaintiffs, adjudging they were the owners in fee simple of the realty. The reviewing court stated (45 Cal.2d at page 52, 113 P.2d at page 499):

‘The separation agreement * * * was a valid contract specially authorized by section 159 of the Civil Code. It was in writing and made a complete disposition of the property interests of the husband and wife so far as they themselves were concerned. It was not rescinded, cancelled or modified and was in full force and effect at the time of the death of the wife. * * * It was a contract made for the benefit of the surviving children of the contracting parties and thus one which they had the right to enforce. Sec. 1559, Civ.Code. Hence, both husband and wife each became a trustee one for the other and both for the heirs named as beneficiaries in the contract. Sec. 369, Code Civ.Proc. When Else died, Andrew took all the property named in the contract as survivor, but also as trustee for the beneficiaries named in the contract, and when Andrew died his legal representatives succeeded to the trusteeship. Now when a condition of this kind arises the usual procedure is a suit in equity to establish the trust, whether voluntary or involuntary, resulting or constructive, and to have it adjudged that the party holding as such trustee should deliver both title and possession to the beneficiaries, and should be foreclosed and enjoined from asserting any title adverse to the beneficiaries. When the contract as here is an agreement to make mutual wills which cannot be specifically enforced, because in the lifetime of a party all testamentary papers are in their nature revocable and after his death it is no longer possible for him to make a will, courts of equity have adopted a remedy equivalent to a specific performance by compelling those on whom the legal title has descended to convey to the beneficiaries under the contract upon the ground that they hold as trustees for the beneficiaries. Burdine v. Burdine's Executor, 98 Va. 515, 36 S.E. 992, 993, 81 Am.St.Rep. 741. This practice has developed what is termed ‘the quasi-specific performance’ theory. It was approved in Notten v. Mensing, 3 Cal.2d 469, 473, 45 P.2d 198, 200.'

The court further said (45 Cal.2d at page 55, 113 P.2d at page 500):

‘[T]he written agreement of March 31, 1930, was a valid contract for the disposition of the respective interests of the husband and wife in the property therein described, and that following the death of the wife, the husband having taken possession of all the property therein described, enjoyed all the benefits of the contract, and denied to the estate of the wife any claim or interest in the property adverse to him, he thereupon became estopped from making any other or different disposition of the property from that contemplated by the agreement. It follows as well that he could not avoid this estoppel either by a subsequent marriage or a will disregarding the terms of his contract since there was no rescission or cancellation of the contract during the life of the former wife. When, therefore, the appellant [the defendant] entered into possession of the property as executrix of his estate, she took no interest greater than that of the decedent. Under the rule of the cases cited she then became a trustee for the benefit of the respondents.’

In this case, with respect to the instrument of July 5, 1945: It was a valid contract. It was not modified or rescinded and was in force at the death of Mr. Halldin. It was a contract for the benefit of the children of the contracting parties and one they could enforce. Mr. and Mrs. Halldin each became a trustee—one for the other, and both for their children. When Mr. Halldin died Mrs. Halldin took the property described in the contract as survivor, and also as trustee for the children. She now holds title to the two items of realty in trust for plaintiff, and the proceeds of the Magnolia Avenue property in trust for the children.

The absence of an express covenant to make wills does not affect the validity of the contract or prevent its enforcement. Such a covenant is necessarily implied if it is essential to pass the property as agreed on the death of Mrs. Halldin. Civ.Code, § 1655; Patterson v. Chapman, 179 Cal. 203, 205–206, 176 P. 37, 2 A.L.R. 1467; 12 Cal.Jur.2d 345, § 133. Every contract calls for the highest degree of good faith and honest dealing between the parties thereto. Nelson v. Abraham, 29 Cal.2d 745, 750, 177 P.2d 931.

The court permitted Mrs. Halldin to testify as to her intent in making the contract. Reception of the evidence was error. There is no ambiguity or uncertainty in the contract. So far as an agreement is intended to pass a right, it is the exclusive evidence of the contract and the parties thereto are concluded by its terms. Where there is nothing ambiguous or uncertain in the terms of a contract it speaks for itself and inquiry should be limited to what the words of the contract express without regard to any intention independent of those words. The intention of the parties to a contract is to be gathered if possible from the language itself and is determined by a proper construction of the language used rather than by resorting to extrinsic evidence. Parol evidence is not admissible to add to, detract from, or vary the terms of a plain, certain, and unambiguous contract. The operation of a contract cannot be defeated by parol evidence of an intention on the part of the maker that it should have an effect different from that apparent on its face. Pinsky v. Sloat, 130 Cal.App.2d 579, 588, 279 P.2d 584. Any secret intent Mrs. Halldin might have had is immaterial and beside the point. The fact that the instrument is a contract determines the rights of plaintiff. Brant v. California Dairies, Inc., 4 Cal.2d 128, 132–134, 48 P.2d 13. See 6 Hastings L. Jour. 368.

The parol evidence rule is not a rule of evidence but is one of substantive law. As applied to contracts, the rule is that as a matter of substantive law the act of embodying the complete terms of an agreement in writing becomes the contract of the parties. As a matter of law, the writing is the agreement. Extrinsic evidence is excluded because it cannot serve to prove what the agreement was; this is determined as a matter of law by the writing itself. The rule is operative when there is a single and final memorial of the understanding of the parties. In re Estate of Gaines, 15 Cal.2d 255, 264–265, 100 P.2d 1055; Nourse v. Kovacevich, 42 Cal.App.2d 769, 771, 109 P.2d 999; O'Melia v. Adkins, 73 Cal.App.2d 143, 148, 166 P.2d 298; Lifton v. Harshman, 80 Cal.App.2d 422, 432, 182 P.2d 222. Parol evidence, though admitted without objection, must be ignored as of no legal import, and its incompetency to vary a written contract is a matter of law. Lifton v. Harshman, supra.

Mr. and Mrs. Halldin agreed that the survivor would have ‘whole controll’ of the property. The word ‘control’ is synonymous with management, authority to direct, superintend, restrict, regulate, govern, administer, or oversee. Black's Law Dict., 3d Ed.; Webster's New Inter. Dict., 2d Ed.; J. G. Speirs & Co. v. Underwriters at Lloyd's, 84 Cal.App.2d 603, 604, 191 P.2d 124; Pacific Emp. Ins. Co. v. Hartford Acc. & Ind. Co., 9 Cir., 228 F.2d 365, 368; Rose v. Union Gas & Oil Co., 6 Cir., 297 F. 16, 18. It does not imply any dispositive or proprietary power over or in the property under such superintendence. Madison Pictures v. Chesapeake Industries, Sup., 147 N.Y.S.2d 50, 55. See Neilson v. Schoellkopf, Tex.Civ.App., 122 S.W.2d 281, 283; Farmers' Bond & Mortgage Co. v. Walker, 207 Iowa 696, 223 N.W. 497, 498. In Myrick v. Williamson, 190 Ala. 485, 67 So. 273, 274, the testator by his will authorized his wife “to take full control' of his property.' The court held the wife was not given a beneficial interest in the estate, but merely full management. Quoting from Wolffe v. Loeb, 98 Ala. 426, 13 So. 744, the court stated (67 So. 274):

“‘Control’ means to check, restrain, govern, have under command, and authority over.'

‘And the opinion proceeds with the following language applicable to the instant case:

“The testator, we must presume, understood the meaning of the words ‘give, grant, devise or bestow,’ as well as he did that of ‘control,’ and, if he had desired to devise or bequeath his wife anything, he would have employed some apt word to effect that intent.”

Mrs. Erickson by the terms of the contract expressly agreed to have only ‘control’ of the property; she expressly agreed to have the limited power of management, to superintend, administer, and oversee the property; she expressly surrendered her right to sell any of the property.

The adjective ‘whole’ does not increase or enlarge the power given to Mrs. Erickson under her authority of having control of the property. The word means ‘total,’ ‘entire,’ and ‘undivided.’ Webster's New Inter. Dict., 2d Ed. Only Mrs. Erickson was given control, and not others; the control was not to be divided among her and the children; she was to have ‘entire’ control.

Balian v. Balian's Market, 48 Cal.App.2d 150, 119 P.2d 426, and Fritz v. Thompson, 125 Cal.App.2d 858, 271 P.2d 205, cited by defendants, are not analogous. Balian merely held the evidence was insufficient to established an oral trust. In sustaining a judgment for the defendant, Fritz held as to one count that a claimed promise of the decedent to give the plaintiff $5,000 was conditional and the conditions had not been performed; as to a second count, that a finding that the decedent did not, prior to his death, deliver to the defendant $5,000 in trust for the plaintiff was supported by the evidence; as to a third count, that a letter written by the defendant to the plaintiff did not create a trust because the letter did not indicate an intention of the defendant to relinquish her beneficial interest in the property in praesenti and to hold it for the benefit of another. That is not this case.

Mrs. Erickson received the property described in the contract as survivor and as trustee for the children, whom she and Mr. Halldin named as beneficiaries in the instrument; only she has control of the property; she has the limited power of management, to superintend, administer, and oversee the property. She did not and does not have the power to dispose of any of the property and is obligated to carry out the terms of the contract. Having sold the Magnolia Avenue property to bona fide purchasers for value, she now holds the proceeds in trust for the children. Plaintiff is entitled to a declaration of his rights under the contract. Code Civ.Proc. § 1060; Brown v. Superior Court, 34 Cal.2d 559, 563, 212 P.2d 878.

Reversed.

VALLEÉ, Justice.

PARKER WOOD, Acting P. J., concurs.