Kendrick v. Barrow

WOOD, J.

The petitioner, Minnie W. Barrow, widow of Thomas M. Barrow, deceased, filed in the probate court a petition for a family allowance and for cancellation of a property settlement agreement made by petitioner and Thomas M. Barrow during his lifetime. The petition was opposed by the executor of the will of Thomas M. Barrow and by Frank E. Barrow, a son by a previous marriage. The executor and the son have appealed from the orders granting the petition.

In the property settlement agreement petitioner waived various rights, among them the right to a family allowance. The trial court found that decedent induced petitioner to make the agreement by falsely and fraudulently promising and representing to petitioner that he would make a will leaving all his property in equal shares to Frank E. Barrow, the son of decedent, and to Jean Barrow Way, the daughter of petitioner and decedent; that petitioner believed said promise and relied upon it and was thereby induced to execute the agreement; that decedent did not have any intention at the time the promise was made of performing it; that the promise was made with the intent and for the purpose of deceiving and defrauding petitioner. Appellants now contend that these findings are without support in the evidence.

Petitioner and decedent were married in 1905, at which time each owned separate property and decedent earned a salary from his employment in the postal service. Decedent managed the property of both parties until 1919, when petitioner assumed the management of her own property. Thereafter each party acquired certain additional properties and together accumulated certain community property. Decedent

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became ill with tuberculosis which caused his retirement from the postal service with a pension of $60 a month. Negotiations were conducted for a formal property settlement and on August 15,1934, a discussion took place between the parties and their daughter Jean. Petitioner asked decedent to pay her the sum of $5,000 but decedent offered the sum of $3,500 in settlement. What took place is related by the daughter: “Well, I came home from school—it was one day during the week—and, so, the' subject of the property settlement came up—my father was very, oh, despondent about these people downstairs moving, and he says, ‘I am going to board up the house, I want peace and quiet around here, and I would like to be left entirely alone;’ and he says, ‘I wish you folks would get out.’ And mother said, ‘Well, I will if you will give me what I have asked for.’ He says, ‘Well, what do you want?’ She said, ‘I would like to have $5,000;’ and he said, ‘Oh, hell;’ he says ‘I haven’t got it;’ and I said to my father, ‘I should think you would be only too glad to give mother what she asks for, all the things she has done for you, you wouldn’t be here now if you had not had help.’ He said, ‘Jean, you remember this agreement is only between your mother and me.’ So then I spoke up to my father, and I said, ‘Well, what about other things you have besides this house?’ I says, ‘You have your savings account, you have the rent from the house downstairs and your garage and your pension.’ And so, he said, ‘Well, I don’t know how long I am going to live or how much my expenses will be; I may have to have nurses and doctors,’ but he says, ‘If I have anything left I am going to divide it between Prank and you. ’ He said, ‘I don’t want to show any partiality.’ Then mother spoke up and she said, ‘That is fair; if you don’t like that I will be willing to split the difference with you and take $3,750.’ My father said ‘All right.’ So that ended that conversation.” Petitioner presented a witness who testified decedent had told her that he had concealed certain property from petitioner and that she would not have signed the agreement if she had known of the concealed property.