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District Court of Appeal, Second District, Division 1, California.

Marjorie LUDWICKI, Plaintiff and Appellant, v. Bruce GUERIN, as Executor of the Estate of Paul James Guerin, deceased; Bruce Guerin, as Administrator of the Estate of Eva Bonin Guerin Arbour, deceased; Bruce Guerin, as Administrator of the Estate of Alphonse J. Guerin, deceased; Bruce Guerin, also known as Bruce James Guerin, individually, Defendant and Respondent.*

Civ. 25283.

Decided: August 08, 1961

Everett F. Beesley and Maurice Gordon, Los Angeles, for appellant. Maury, Larsen & Hunt, Los Angeles, for respondent.

Plaintiff, the daughter of decedent Paul Guerin, instituted this action in September of 1959 to establish a constructive trust as to one-half of Paul's estate, to secure specific performance of a contract jointly executed by Paul and his wife Alma (plaintiff's mother) to will plaintiff one-half of his (or her) estate, and for declaratory relief. The answer having affirmatively pleaded that the action was barred by certain statutes of limitation (as well as by laches), the court proceeded to try such special defenses before the trial of any other issue (Code of Civil Procedure, § 597) and found thereon in defendant's favor. Judgment was entered accordingly, and plaintiff has appealed.

The protracted litigation involving Paul's estate has been subject of a previous appeal (Guerin v. Guerin, 152 Cal.App.2d 696, 313 P.2d 902,), reference to which will furnish much of the background of the present controversy. Plaintiff is the natural daughter of Paul and Alma Guerin; defendant Bruce is their adopted son, five years plaintiff's junior. In December, 1922, Paul and Alma executed a two-part agreement which is the subject of this litigation: the first part declared and settled their respective property rights; the second part consisted of an agreement by which each contracted to execute a will equally in favor of the present parties. Paul and Alma eventually became estranged and Paul died in March of 1952, approximately two weeks after the commencement of a separate maintenance suit against Alma. In January of 1953, as Paul's executor under a will dated two weeks prior to his death and which, the instant record reveals, Alma unsuccessfully contested, Bruce initiated action against Alma which terminated in a judgment awarding Paul's estate an undivided interest in a large number of properties held by Alma during Paul's lifetime, as well as a money judgment against Alma. The 1922 agreement furnished support in considerable measure for the trial court's findings of Paul's interest in the properties involved.

Upon appeal the judgment was affirmed as modified (152 Cal.App.2d 696, 712, 313 P.2d 902,) and a petition for hearing by the Supreme Court was denied on September 18, 1957. When the remittitur came down, as will be pointed out in a companion appeal (15 Cal.Rptr. 512), further probate and other proceedings were had in connection with Paul's estate; it is presently not unsubstantial and plaintiff is here seeking to secure her distributive share thereof through recourse to the remedies already mentioned. The exact nature of the remedies invoked becomes important in light of the finding that they are barred by certain statutes of limitation, specifically, Sections 337, subd. 1 and 338, subd. 4 of the Code of Civil Procedure.

Plaintiff's first cause of action was one to impress a trust as to her distributive share of the estate's assets; however, the declaration of such a trust would, in effect, be the equivalent of what is sought by the second cause of action, namely, specific performance of decedent's commitment with regard to testamentary disposition of his property. While an equity court cannot compel the making of a will during the promisor's lifetime, ‘the court will, in an action by the promisee, impose a constructive trust upon any particular property in the hands of the individual distributee’ (Bank of California, Nat. Ass'n v. Superior Court, 16 Cal.2d 516, 524, 106 P.2d 879, 884); as observed in the case just cited, the relief is sometimes called “quasi-specific performance', since it accomplishes the substantial result of enforcement of the contract.' The doctrine of quasi-specific performance is said to have ‘its statutory basis in the provision of the Civil Code that one who gains a thing by fraud, accident, mistake, undue influence, violation of a trust, or other wrongful act is, unless he has some other and better right, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.’ 54 Cal.Jur.2d Wills, Section 528. The present action having been brought on the theory of a constructive trust, the 3-year limitation declared in Section 338, Subd. 4, Code of Civil Procedure, is applicable (Schaefer v. Berinstein, 180 Cal.App.2d 107, 131, 4 Cal.Rptr. 236)1 ; sebdivision 4 further provides that the cause of action shall not be deemed to have accrued ‘until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.’

By appropriate pleading, plaintiff brought herself within the quoted portion of the subdivision which suspends the operation of the statute. She alleged that she did not know of the existence of the contract in suit or have any knowledge of its terms until September 21, 1957; that she had resided in the State of Michigan, except for brief periods, since January of 1948, and nothing was said to her by anyone concerning the contract during the intervening years. After alleging, on information and belief, that the defendant was at all times since his appointment as Paul's executor aware of the existence of the contract in suit, plaintiff further alleged that defendant ‘fraudulently and in violation of his duties and obligations as an officer of the Court and with the intent and purpose of defrauding the plaintiff herein, concealed from and failed to disclose to the Court charged with the administration of said estate, or to the plaintiff, the existence and contents of said Contract for Will.’ The circumstances surrounding her discovery of the contract were pleaded as follows: ‘On September 18, 1957, plaintiff with her husband and son visited plaintiff's mother in Phoenix, Arizona. On or about September 21, 1957, while plaintiff * * * visited her mother at her home the latter showed plaintiff a letter from an attorney, whose name plaintiff does not now remember, relating to the aforementioned action Number 605 6582 , which letter contained a reference to said Property Settlement and Contract for Will. That said letter was the first knowledge plaintiff had of the said Contract For Will * * *’

The trial court found that ‘it is not true that defendant Bruce Guerin, either individually or as Executor or Admininstrator, deliberately or fraudulently or in violation of his duties as an officer of the Court, or with the intent or purpose of defrauding the plaintiff, or otherwise, or at all, concealed from or failed to disclose to the Court charged with the administration of said estate of Paul J. Guerin, deceased, or to the plaintiff herein, the existence of said * * * or any, contract for will.’ There was a further finding that ‘patent means of knowledge of the existence of said contract and of its terms were readily available to plaintiff, and that she failed to exercise due diligence and vigilance to discover the same’; in this latter respect it was found that ‘plaintiff has resided part of the time in the State of Michigan since January, 1948, and * * * that she made frequent trips to the City of Los Angeles * * * that she was in the City of Los Angeles during the months of November and December, 1952, during the trial of the Will Contest in the Matter of the Estate of Paul J. Guerin, deceased, and was a witness therein for the contestant, Alma P. Guerin * * * that the trial of Action No. 608,568 was held in the County of Los Angeles * * * during the month of March, 1955 * * * that a certified copy of said Property Settlement and Contract for Will was received in evidence during said trial * * * as Plaintiff's Exhibit 1, and was used as a basis and a principal item of evidence throughout the course of said trial * * * that Plaintiff visited her Mother, Alma P. Guerin, throughout the period from March of 1952 to September of 1959, and that said Alma P. Guerin was a party to said Property Settlement Agreement and Contract for Will and was well aware of the existence of same at all times.’

It appears that the existence of the contract in suit first came to light following the institution by Bruce of Action No. 608,568 against Alma. Bruce's wife, acting on his attorney's instructions, proceeded to make a search of the official records pertaining to property transactions; she did so ‘looking toward trial preparation of the suit in the Superior Court.’ A certified copy of the instrument, bearing certification date of June 11, 1954, was secured; the witness testified that she discovered the document ‘a few days' prior thereto.

Assuming that defendant, as executor,3 fraudulently concealed the discovery of the contract, the principle was recently restated that ‘no hard and fast rule can be laid down as to when a party, as a reasonable man, should discover a fraud. * * * rather each case must be determined on its own facts and circumstances.’ Wilbur v. Wilson, 179 Cal.App.2d 314, 316, 3 Cal.Rptr. 770, 772. Furthermore, ‘When the facts are susceptible to opposing inferences, whether a party had notice of circumstances sufficient to put a prudent man on inquiry as to a particular fact, and whether by prosecuting such inquiry he might have learned such fact, are questions of fact to be determined by the trial court (citations)’ (Tognazzini v. Tognazzini, 125 Cal.App.2d 679, 687, 271 P.2d 77, 82.) Counsel for plaintiff insists that the testimony of their client was uncontradicted and entirely probable and therefore should have been accepted by the trier of fact; such argument, however, ignores what ‘has so often been said, when opposing inferences may reasonably be drawn from the facts in a case, the findings of the trial court will not be set aside.’ McIntyre v. Doe & Roe, 125 Cal.App.2d 285, 287, 270 P.2d 21, 23. Stated otherwise, ‘On appeal, the reviewing court will uphold the judgment if any inferences support it, even though they may not be the more probable ones.’ Witken, California Evidence, p. 144.

The history of the entire Guerin litigation, particularly as reflected by the prior opinion (supra, 152 Cal.App.2d 696, 313 P.2d 902), indicates that plaintiff and Alma, a cosigntory of the contract in question, were closer to each other than plaintiff would have us believe—certainly the relationship was closer, and in the latter (and crucial) years much more friendly, than that which obtained between defendant and his adoptive mother. She was a witness for her mother in the latter's contest against Paul's 1952 will. She was a participant, following the attainment of majority, in certain property transactions involving her parents; she claims that she never read these deeds, two or three in number and involving parcels of land described in the contract, because she ‘believe(d) they pertained to what we always called the ranch.’ Plaintiff, it appears, is not an uneducated person; she testified that before she left Los Angeles she was employed as a school teacher in the Los Angeles school system. Her counsel have cited our decision in Gross v. Needham, 184 Cal.App.2d 446, 7 Cal.Rptr. 664; but plaintiff Gross, many years younger than her brother (the defendant), never completed the eighth grade and was much more vulnerable to the fraud there and then imposed. It is very significant, also, that Alma was never called as a witness for the plaintiff and the record does not reveal that plaintiff ever explained her mother's unavailability. Plaintiff, of course, was under no duty to produce Alma; but in failing to do so, she took the risk that the trier of the fact would infer, and properly so, that Alma's testimony, had it been produced, would have been adverse. Breland v. Traylor Eng. & Mfg. Co., 52 Cal.App.2d 415, 426, 126 P.2d 455. Her father, the other cosignatory, being deceased, at the trial she could and did tell of her total ignorance of the existence of the instrument; he would not be present to deny or explain. “Oral evidence, of which there is no satisfactory * * * corroboration, is the weakest kind of evidence known to the law * * *' (citation).' Estate of Zlaket, 180 Cal.App.2d 553, 560, 4Cal.Rptr. 450, 454.

Other than to assert that her testimony is more worthy of belief than that produced by defendant, plaintiff has not made any extensive attack on the sufficiency of the evidence to support the findings from which we quoted earlier; she does, however, challenge at some length a portion of Finding No. 8 to the effect that ‘plaintiff had constructive notice of the existence and terms of said Property Settlement Agreement and Contract for Will at all times from and after July 16, 1923 (the date of recordation), from and after the 29th day of March, 1952 (the date of Paul's death), from and after the 3rd day of July, 1954 (the date of its filing in Action No. 608, 568), and from and after the month of March, 1955 (when said action was tried).’ Citing the earlier Schaefer decision (Schaefer v. Berinstein, 140 Cal.App.2d 278, 295 P.2d 113), she properly contends that, ‘Where fraud is involved public records are not constructive notice of the true facts to the defrauded party’ (140 Cal.App.2d at page 296, 295 P.2d at page 116). That case, and others referred to in the opinion, involved situations where the defendant himself had made affirmative representations calculated to lull the plaintiff into a sense of security and state of inaction; for example, the rule is rationalized in Seeger v. Odell, 18 Cal.2d 409, 415, 115 P.2d 977, 136 A.L.R. 1291, as follows: ‘The purpose of the recording acts is to afford protection not to those who make fraudulent misrepresentations, but to bona fide purchasers for value.’ Here, of course, the recordation was accomplished by Paul or Alma—not by the defendant; no representations were thereafter made by defendant to his sister—as matter of fact, plaintiff testified that the parties were for all practical purposes estranged even before their father's death, and any representations by defendant would scarcely have been fruitful. Unquestionably there is authority for the broad proposition that fraudulent concealment of the facts at the time of the transaction and thereafter will toll the running of the statute (South v. Wishard, 146 Cal.App.2d 276, 286–287, 303 P.2d 805); but the critical word is ‘thereafter.’ Other portions of Finding No. 8 make reference to certain matters, next to be discussed, which take much of the force from plaintiff's argument; they tend to sustain the general declaration in that finding that ‘the defendant * * * did not fraudulently, or with intent to defraud, or deliberately, or otherwise, conceal said agreement from plaintiff * * *’

It was further found (Finding No. 8) ‘that said Property Settlement Agreement and Contract for Will was filed on or about July 3, 1954, in the proceedings, records and files of action No. 608, 568 of the Superior Court of the State of California, in and for the County of Los Angeles, and that said action was a plenary action by the defendant Bruce Guerin, as Executor of the Estate of Paul J. Guerin, deceased, against Alma P. Guerin and others4 for the recovery of property which is now a part of the estate of Paul J. Guerin, deceased; finds that said document was filed in said proceedings on or about the 3rd day of July, 1954 * * * and was later received in evidence during the trial of said action in March of 1955 * * *’ This is not the ‘fraudulent concealment,’ it seems to us, which is contemplated by the decisions. It has been observed that ‘whether the acts, representations, or conduct lulled a party into a sense of security preventing him from instituting proceedings before the running of the statute, and whether the party relied thereon to his prejudice—is a question of fact.’ Mills v. Mills, 147 Cal.App.2d 107, 120, 305 P.2d 61, 70. Upon the trial, plaintiff's counsel argued with a good deal of vigor that the defendant's attorneys should have also advised the probate department, where Paul's estate was being administered, of the existence of the contract, although it is not made to appear wherein such action would have been helpful to plaintiff's cause—if she had requested special notice (Probate Code, § 1202), the suit against Alma was not one of the matters mentioned in Section 1200, Probate Code. Too, “it has long been held that the superior court in a particular county is a single entity and its division into departments is simply for the convenience and expedition of business.' (citations)'. People v. Yates, 165 Cal.App.2d 489, 493, 332 P.2d 314, 316.

In light of the circumstances here appearing, we conclude that there is substantial support for the trial court's determination that the governing statute (Code of Civil Procedure, § 338, subd. 4) was not tolled as a result of any fraud on the part of the defendant, and that plaintiff, more than three years before the filing of her complaint, had notice of facts sufficient to put a prudent person on inquiry as to the existence of the contract sued upon. Furthermore, there is authority for defendant's claim that a cause of action upon a contract, which is to be performed upon the death of the promisor, will accrue when that event occurs. Lubin v. Lubin, 144 Cal.App.2d 781, 789–790, 302 P.2d 49. Plaintiff brought the instant action 7 1/2 years after Paul's death, almost 7 years after the will contest, 5 years and 2 months after the contract was first filed in court, and 4 1/2 years after the trial of Alma's case; under any statute of limitations, otherwise possibly applicable, plicable, her action is barred.

Plaintiff, upon the trial and before this court, has placed great reliance on Brazil v. Silva, 181 Cal. 490, 185 P. 174, and Blair v. Mahon, 104 Cal.App.2d 44, 230 P.2d 832. In the first place, neither of those two cases had been tried on the merits;5 the same is true, also, of other of plaintiff's authorities such as the first Schaefer case (Schaefer v. Berinstein, supra, 140 Cal.App.2d 278, 295 P.2d 113,) and Ramey v. General Petroleum Corp., 173 Cal.App.2d 386, 396, 343 P.2d 787. In Brazil v. Silva, supra, the suit was against the individual distributee after distribution of the estate; the fraud assertedly involved defendant's failure to destroy a will which the deceased had wanted to revoke. Surely that case does not hold, as plaintiff seems to suggest, that a party in her position can wait until the estate has been distributed before prosecuting her claim—some estates are in the process of administration for several years, and it would be very convenient for persons to procrastinate deliberately while the memories of witnesses grow dim (see footnote 5) before instituting proceedings. Furthermore, it is held in Silva that an action of this type can be maintained against the personal representative at any time after his appointment becomes final—in this case, the fall of 1953. Blair v. Mahon, supra, likewise involved the interpretation of pleadings; allegations included the averment that the defendant had committed affirmative acts of fraud and the court concluded that the alleged facts were sufficient to amount to fraudulent concealment. In the present case, of course, the proof has superseded the pleadings.

Other and subsidiary assignments of error have been examined, and we find them to be without merit.

For the foregoing reasons, the judgment is affirmed.


1.  In Potter v. Bland, 136 Cal.App.2d 125, 288 P.2d 569, it was held, citing Keefe v. Keefe, 19 Cal.App. 310, 125 P. 929, that an action to enforce an oral contract to will property may be brought within four years; the court concluded that the property involved was impressed with the qualities of a resulting trust. In neither case, we note, was a hearing by the Supreme Court sought.

2.  The subject of the appeal in Guerin v. Guerin, supra, 152 Cal.App.2d 696, 313 P.2d 902.

3.  It is of interest that plaintiff's counsel, upon the commencement of the trial, advised the court that ‘the plaintiff objects to any proceeding, any participation by Bruce Guerin as executor in any of these proceedings in connection with the constructive trust case * * *.’ Counsel doubtless had in mind the recognized rule that the action is essentially one against the individual distributee, and hence the personal representative is ordinarily not a proper party defendant (54 Cal.Jur.2d Wills, Sec. 528, pp. 41–42).

4.  Plaintiff was named as a defendant; however, she was never served and the action as to her was dismissed upon the commencement of the trial.

5.  In the Brazil v. Silva, case, supra, 181 Cal. at page 498, 185 P. 174 at page 178, incidentally, the following observation is peculiarly here pertinent: ‘In this connection, since the cause must go back for trial, it may not be amiss to call attention to the rule that, because of the very nature of these cases, the fraud or other wrong relied on must be proven clearly and satisfactorily. The relief asked for is so extraordinary, and the opportunity for false testimony so great, since the evidence in most cases must be largely parol, that it is only where it is fairly certain that the circumstances calling for the relief actually exist that the extending of it may be justified.’

LILLIE, Justice.

WOOD, P. J., and FOURT, J., concur.