Kopasz v. Wymer

[120]

McCOMB, J.

From a judgment in favor of defendant predicated upon the sustaining of her demurrer to plaintiff’s fourth amended complaint in an action to recover damages for breach of contract, plaintiff appeals.

The gist of the attempted cause of action alleged in the pleading is that by the last will of Lee Canfield, deceased, he left his entire estate, one-third to his wife, Alice F. Canfield, one-third to his daughter, Marvel, and one-third to his daughter, Dorothy. After his death various disputes had arisen between the plaintiff’s testatrix, Marvel I. Kopasz, and Lee Canfield’s widow, Alice, respecting the ownership of certain property, as to whether it was the separate property of Alice Canfield or whether it was the property belonging to the estate of Lee Canfield. In settlement of such dispute the parties entered into an agreement reading as follows:

“It is hereby agreed by and between Alice F. Canfield and Marvel I. Kopasz, both of the City of Pasadena, County of Los Angeles, State of California, that in the distribution of the Estate of Lee Canfield, deceased, Marvel I. Kopasz shall receive an amount equal to one-third (%) of the net estate (wherever situate) available for distribution, together with one-third (%) of the property listed as the separate property of Alice F. Canfield, and one-sixth (1/6) of the net sums recovered by Alice F. Canfield predicated upon the theory of gifts of community funds by the deceased.

“Alice F. Canfield agrees to pay Marvel I. Kopasz one-sixth (1/6) of the net sums recovered by her, immediately upon reeipt of same, and upon distribution or partial distribution in the estate proceedings to pay Marvel I. Kopasz a sum in an amount, which together with the sum distributed to Marvel I. Kopasz, equals (%) of the total estate distributed.

"The purpose of this agreement is to eliminate any possible conflict of interest which might arise concerning assets of the estate, or assets transferred by the decedent during his lifetime by reason of the fact that Alice F. Canfield is the widow of decedent and Marvel I. Kopasz is a daughter of decedent.

“Dated at Pasadena, California, this 13th day of September, 1949.”

The complaint also states that during the lifetime of Alice F. Canfield plaintiff made demand on her for delivery of the one-third of the property referred to in the aforementioned agreement but that she refused to deliver said property to plaintiff to his damage in the sum of $43,833; that Alice F.