Douillard v. Woodd

EDMONDS, J.

Following the administration of the estate of Emily S. Donahue, the respondents, who were legatees under her will, sued the appellant, the principal beneficiary of it, upon an asserted oral contract by which Mrs. Woodd agreed to divide her legacy with them. The appeal is from a judgment rendered in accordance with the respondents’ complaint.

All of the parties are heirs of Mrs. Donahue, who bequeathed $10,000 to her daughter, Mrs. Woodd, “in appreciation of her devotion and service to me in many ways for many years.” After directing that each grandchild and great-grandchild be paid $50 from her estate, Mrs. Donahue devised the residue of her estate to Mrs. Woodd and the respondents in stated shares. The probate court decreed distribution accordingly.

According to the complaint, Mrs. Woodd orally agreed with the respondents that if they would not contest the will, she would divide her legacy of $10,000 between herself and them in the same proportions designated by Mrs. Donahue for the division of the residue of her estate. By way of answer, Mrs. Woodd denied that she made that agreement. She also pleaded three affirmative defenses: (1) That before distribution of the estate, all of the legatees entered into a written novation

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of all prior agreements, and that under such novation, they are not entitled to the relief sought in their complaint; (2) that the alleged contract violated section 1973 (1) of the Code of Civil Procedure, requiring an agreement to be in writing where, by its terms, it is not to be ^performed within a year from the making thereof; and (3) that the legatees, by the terms of the written receipts of their distributive shares of the estate, waived any right to enforce the asserted agreement.

The trial court found that Mrs. Woodd made the contract alleged by the respondents in consideration of their forebearing to contest the will of Mrs. Donahue, and that these legatees had performed their part of the agreement by permitting the estate to be administered, without contest, in accordance with the terms of the will. Upon the issues raised by the affirmative defenses of Mrs. Woodd, the court found that there was no novation or waiver of any rights under the oral contract and that the contract does not violate the statute of frauds. Judgment was entered accordingly.