DOUILLARD ET AL v. WOODD (1941)

From a judgment in favor of plaintiffs after trial before the court without a jury in an action to enforce a contract for the distribution of property of an estate, defendant appeals.

The evidence being viewed in the light most favorable to plaintiffs (respondents), the essential facts are:

August 23, 1937, Emily S. Donahue died leaving surviving her three children, Melanie D. Woodd (defendant) and Emile Douillard and Frank Douillard (plaintiffs), and two grandchildren. Raymond F. Puissegur and Juliette Evans (plaintiffs). Decedent left a will by which she bequeathed to defendant $10,000 and after making certain other small bequests left the residue of her estate as follows:

“1/4 to Melanie D. Woodd, Emile A. Douillard and Frank T. Douillard; 1/8, each, to Raymond F. Puissegur and Juliette Evans.”

July 10 and 11, 1937, defendant had a conversation with plaintiffs herein, in which she promised them that, if they would not contest the will and permitted it to be administered, as soon as she received her legacy of $10,000 and the estate was settled, she would divide the legacy among the plaintiffs in the same proportions that they were to receive the residue of decedent's estate. Plaintiffs did not contest the will of decedent and on May 5, 1938, the following agreement was signed by plaintiffs and defendant:

“MEMORANDUM OF AGREEMENT

“Defendant's Exhibit A

“The undersigned, legatees of Emily S. Donahue, deceased, hereby agree:

“That the property to be distributed to us as residuary legatees shall be divided among us as follows:

“Emile Douillard shall receive the property at 2025 1/2 W. 28th St. subject to sale agreement at net amount due April 30, 1938. Money to equalize his one fourth.

“Frank Douillard shall receive the two beach properties at $5500. Money to equalize his one fourth.

“Melanie D. Woodd shall receive the building at 1824 S. Vermont at $15600.00 and will pay to the Estate the difference to equalize her share. She will buy the flats at 1732 S. Vermont at $500.00 paying the estate net $375.00 and waiving any participation.

“Raymond Puissegur shall receive Louis Douillard's property subject to the sale contract he holds at value 4/30. The buoy property subject to sale contract at value April 30. San Luis Obispo 3 lots at net $150.00 Improvement bonds at $452.24. Balance in cash to equalize his share.

“Juliette Evans shall receive

“The Harry Stadelmann note at balance due April 30, 1938.

“The Frances Stadelmann note at balance due April 30, 1938.

“Balance in cash to equalize her share.

“A complete agreement shall be drawn and signed by us in accordance with the foregoing.

“Dated May 5, 1938.

“(Signed) EMILE A. DOUILLARD

FRANK T. DOUILLARD

JULIET S. EVANS

RAYMOND FRANK PUISSEGUR

MELANIE D. WOODD”

October 19, 1938, plaintiff Juliette Evans signed the following receipt:

“In the Matter of the Estate of Emily S. Donahue, Deceased No. 170205

“Legatee's Receipt for Distributive Share on Mutual Partition and Division of Estate Properties

“Pursuant to the provisions of the will duly admitted to probate the undersigned Residuary Legatee, pursuant to agreement with all other residuary Legatees, agrees to partition as follows:

“Receipt of cash in the sum of $1815.59 and transfer of H. H. Stadelmann deed of trust note and deed to Lot 46 Tract 4499 subject to contract of sale, to Frances Stadelmann are hereby acknowledged and accepted, in full settlement, payment and release of all claims against said estate as legatee or otherwise, and against the executrix save and except the right to receive any unused part of the $25.00 tax reserve, which is to be returned to me as soon as the collector of Internal Revenue has released the property of the Estate from further tax claim.

“Dated October 19––1938

“(Signed) Juliet Evans”

On September 27, 1938, an order was made settling the final account and for distribution of the estate according to the terms of the will.

Defendant relies upon the following propositions for reversal of the judgment:

First: There is no substantial evidence to sustain the trial court's finding that

(a) Defendant agreed to divide her special legacy of $10,000 among the heirs of decedent, in the same proportion as the residue of decedent's estate was directed to be distributed by the residuary clause of decedent's will;

(b) There was sufficient consideration to support the agreement just mentioned.

Second: The agreements of May 5, 1938, and October 19, 1938, supra, constituted a novation of the prior agreement which the court found defendant had entered into with plaintiffs.

Third: The court committed prejudicial error in sustaining objections to certain evidence offered by defendant which defendant alleges would have tended to prove a novation.

Defendant's first proposition is untenable. An examination of the record discloses substantial evidence taken in connection with the inferences which the trial judge may have properly drawn therefrom to sustain the findings of fact and the facts set forth above. For example, plaintiff Puissegur testified that on July 10, 1937, he had a conversation with defendant, at which time defendant said that decedent had made a will and had given her a special legacy of $10,000, to which Mr. Puissegur replied that both he and his sister Mrs. Evans would contest the will unless there was a division made of the special legacy of $10,000. Defendant then said that she would divide the extra $10,000 which she received as a special legacy among the heirs if none of them contested the will. Further discussion of the evidence is unnecessary (see In re Estate of Winzeler, 42 Cal.App.2d 246, 248, 108 P.2d 720).

Defendant's second proposition is likewise untenable. The agreements which defendant urges constituted a novation referred solely to the residuary clause of decedent's will and merely tended to put into effect the original agreement of defendant with plaintiffs, whereby they agreed to permit decedent's will to be probated without contest, providing defendant would agree to divide her special legacy among them.

Defendant's final proposition is likewise without merit. The questions to which the trial court sustained objections pertained to discussions relative to the division of the residue of the estate and had no bearing upon either the issue of whether an agreement had been made between defendant and plaintiffs or as to whether there was a novation which affected the alleged agreement.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concurred.