SETHMANN v. BULKLEY (1936)

Charles J. Sethmann brought this action to impress a trust on property conveyed by his mother prior to her death to his two sisters, Alvina F. Bulkley and Louise M. Broad. The trial court found that the conveyances were made by Mrs. Sethmann without consideration and in reliance upon the oral promise of defendants that they would pay to the plaintiff $500 on her death and $25 a month for 160 months or until his death or the death of his wife, and in the last event, to pay to the plaintiff in a lump sum the entire balance of the 160 monthly payments. Judgment was entered for the plaintiff in the sum of $1,150, being the $500 due him on the death of his mother and the first 26 payments of $25, for the sum of $25 on the minth day of each succeeding month for 134 months or the entire unpaid balance in the event of the death of the plaintiff's wife and providing that upon the plaintiff's death all liability for payments should terminate. It was further decreed that the property transferred by Mrs. Sethmann to the defendants should be impressed with a trust for the purpose of securing the payment of these sums from the rents, issues and profits thereof. From this judgment the defendants have taken an appeal, their principal contention being that the evidence does not sustain the findings of a promise and the making of the conveyances in reliance thereon and without other consideration.

On February 18, 1926, Mrs. Sethmann conveyed a parcel of real property in San Francisco separately to each of the defendants, her daughters Alvina F. Bulkley and Louise M. Broad. She also transferred to them jointly during the period between February, 1926, and October, 1931, other real property and various trust deeds and mortgages. Mrs. Sethmann executed a will on January 10, 1927, making her daughters residuary legatees. The sole bequest was made to her son, the plaintiff, and was contained in the fourth clause, which is as follows: ‘I give and bequeath to my said son, Charles J. Sethmann, the sum of $500.00 on my death, and thereafter the sum of $25.00 monthly for a period of 160 months. In the event of the death of Nellie F. Sethmann, the present wife of my said son, before said monthly payments have all been paid my said son, then my said son shall forthwith be paid in a lump sum the balance remaining unpaid hereunder. Should my said son either predecease me or predecease his said wife, then all payments to be made him hereunder shall forthwith cease and the provisions therefor shall be null and void and of no force or effect. This gift and bequest to my said son is also made in accordance with the terms of that certain letter dated San Francisco, February 18th, 1926, directed to my said son and signed by me as his loving mother, Cathrina Sethmann, which said gift and bequest and said letter in no sense provide for separate payments, but constitute solely one and the same payment, said gift and bequest being limited by the terms hereof and of said letter.’ The daughters were made executrices of the will. On the same day the deceased executed a deed in joint tenancy to the two sisters covering all the property she then had.

After the death of Mrs. Sethmann, on April 9, 1932, the will was found in the safety deposit box held jointly by herself and Mrs. Bulkley. With it was found the following letter, dated February 18, 1926, and signed by the decedent:

‘I have arranged with your sisters Alvina and Louise to have them pay you the sum of Five Hundred Dollars ($500.00) immediately after my death, and thereafter the sum of Twenty-Five Dollars ($25.00) monthly for a period of One Hundred and Sixty (160) months. Should you pass away before such time, all payments are to cease.

‘Should your present wife die before said monthly payments have all been paid you, they will pay you immediately in a lump sum the balance remaining.’

It appears from the evidence that Henry Sethmann, the husband of decedent, left home in 1898 and the plaintiff in 1907; that neither contributed to the support of Mrs. Sethmann after his departure; that the daughters worked from an early age, contributing from their earnings to the support of their mother and to the payment of taxes, interest, costs of improvement, and even the acquisition of the properties transferred to them; and that Mrs. Bulkley had had the sole handling of her mother's affairs for a long period. The trial court found the existence of a fiduciary relationship between the mother and the daughters.

The only evidence in the record which supports a promise on the part of the sisters to make such payments to the brother consists of the fourth provision in the will, the letter, and a claimed agreement by Mrs. Bulkley, entered into after the death of the mother and the reading of the will and letter, to make the payment specified in the will. Respondent himself admits he knew nothing of any such promise until after his mother's death, the defendants deny the making of the promise, and the attorney who drew the will, which refers to the letter, testified that he asked the testatrix at that time whether any such arrangement had been made with her daughters and that she said none had been.

There were no funds in the estate with which to pay the bequest to the son. The recital in the will is no evidence of an extraneous contract between the testatrix and third person. Rowe v. Hibernia Savings & Loan Society, 134 Cal. 403, 407, 66 P. 569; Potter v. Smith, 48 Cal.App. 162, 169, 191 P. 1023; In re Estate of McCarthy, 127 Cal.App. 80, 86, 15 P.(2d) 223; In re Estate of Fritz, 130 Cal.App. 725, 730, 20 P.(2d) 361.

Nor is the letter itself admissible under any exception to the rule against hearsay evidence which has been called to our attention by the respondent. The mere death of the declarant does not allow the admission of a declaration which is not against interest (Poorman v. Miller, 44 Cal. 269; Rulofson v. Billings, 140 Cal. 452, 74 P. 35; Steinberger v. Young, 175 Cal. 81, 165 P. 432; Johnson v. Davidson, 54 Cal.App. 251, 202 P. 159), or otherwise within the recognized exceptions to the hearsay rule (Jones, Commentaries on Evidence, vol. 2, § 297, p. 634) or the provisions of sections 1870 and 1946 of the Code of Civil Procedure. It cannot be seriously contended that the letter was a part of the res gestae, since the statements therein were not disclosed to anyone until long after the conveyances were made, nor were they made in such a manner as to exclude the element of deliberation or calculation and are in no sense a part of those transactions. In truth they purport only to give the effect of past events.

As to the agreement prepared by the attorney for the executrix Bulkley and signed by her but refused by the plaintiff, but which he now relies upon, it is therein recited that it was given for the purpose of carrying out the will and ‘it is understood that this agreement will follow and be governed by the terms of the will of said Catherina Sethmann.’ Mrs. Bulkley was therefore bound to no more than her already existing duties as executrix and it is not even suggested that Mrs. Broad was ever asked to join in it.

If follows that there is no competent evidence in the record to sustain the finding upon which the trial court based its declaration of a trust in favor of the plaintiff or the personal judgment for money, and that the case must be reversed. It is so ordered.

THOMPSON, Justice.

We concur: WASTE, C. J.; CURTIS, J.; LANGDON, J.; SEAWELL, J.