De Mattos v. McGovern

NOURSE, P. J.

The plaintiff by this action sought to invoke the equitable jurisdiction of the trial court by praying a specific performance of an alleged oral contract wherein James Frazer, now deceased, promised to bequeath to plaintiff in his will one-third of his estate in compensation for services rendered, and to be rendered, to him by the plaintiff as an employee. It is also alleged that at some time during the employment, the deceased informed plaintiff that he had actually executed a will in accordance with the foregoing promise. A demurrer to the complaint was sustained without leave to amend, and plaintiff has appealed from the judgment which followed that order.

The complaint alleges that James Frazer died on September 10,1934, leaving an estate in excess of the sum of $485,000. For many years next immediately preceding his death, the deceased had been engaged in the ownership and control of

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a mercantile business in the city of Palo Alto, this state, and plaintiff was actively employed by the deceased in the conduct of that business. It is alleged that for the purpose of inducing plaintiff to continue in his said employment, the deceased promised him that he would bequeath to him by will an amount equal to one-third of all his property, and that he had actually executed a will to that purpose. It is alleged that the compensation paid to the plaintiff for his services was grossly inadequate, and that he remained in the employ of the deceased because of and in reliance upon said promise and representation above noted. Allegations followed covering the proceeding in probate, the appointment of an administrator, the absence of a will, the appearance of all those claiming as heirs at law of the deceased, and the proceedings seeking distribution of the entire estate to those claiming heirship. Upon these allegations the plaintiff joined as parties defendant, the administrator and all those claiming heirship, and prayed that the court determine that he was entitled to distribution of one-third of the estate, that a trust be impressed upon the property of the deceased to that extent, and for general equitable relief. It is not alleged that plaintiff filed a claim against the estate at any time.

On this appeal appellant states as questions involved: whether an executed oral agreement to will a certain portion of an estate is enforceable in equity notwithstanding the provisions of section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure; whether the complaint in the instant case states facts sufficient to confer upon the court jurisdiction to grant equitable relief by way of specific performance of the agreement pleaded; and whether in such a proceeding it is a necessary prerequisite that a claim be filed against an estate within the time required by law. The first and second questions are answered in the negative with the observation that we disregard the word “executed” added to the first question because of the settled rule that this proceeding does not involve an ‘ ‘ executed ’ ’ oral agreement. The third question is answered in the affirmative upon the authority of