Morgenstern v. Bailey

NOURSE, P. J.

This is an appeal by plaintiff on a bill of exceptions from a judgment in favor of defendant in an action to have a certain stipulation vacated and declared null and void. James W. Bailey, as administrator with will annexed of the Estate of Alfred Morgenstern, deceased, and also as executor of the Estate of Emily Morgenstern, deceased, is substituted as party respondent in place of Emily Morgenstern, individually and as executrix of the Estate of Alfred Morgenstern.

By contract of July 31, 1930, Alfred Morgenstern, son of appellant, in return for a $12,000 asset, agreed to pay appellant $50 a month as long as she lived and charged “his estate with the obligation of continuing the payments herein specified during the life time” of appellant. Alfred Morgenstern made the payments pursuant to the contract until his death, July 7, 1934. At his death he left a will providing:

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“I hereby direct that my wife Emily Morgenstern, pay to my said Mother, the sum of Fifty Dollars ($50.00) per month, during the period of life of said Helena Morgenstern; said payments to be made out of the property and estate received by my said wife, Emily Morgenstern, from my estate. ’ ’

On November 1, 1934, appellant presented a creditor’s claim based upon the contract against Alfred Morgenstern’s estate and upon rejection of said claim, appellant instituted an action. Upon commencement of the action, Emily Morgenstern stopped payments on the ■ contract, and about two months thereafter appellant executed the stipulation in question. Appellant agreed among other things to waive her rights to share in her son’s estate in consideration of the payment by Emily of the sum of $50 per month pending the adjudication of the action upon the contract. Emily again resumed payments. On August 23, 1935, the action on the rejected claim proceeded to final judgment in favor of appellant. The appellant now brings this action to vacate the stipulation, claiming $100 a month, $50 a month upon the contract, and $50 a month under the will.

On appeal appellant contends that the judgment should be reversed on the following grounds: The stipulation is null and void as a contract (1) for want of consideration; (2) undue influence exercised over appellant; (3) lack of knowledge of contents of the stipulation; (4) not signed by Emily Morgenstern; (5) the stipulation being void, rescission not necessary; (6) a claim against an estate cannot be compromised without sanction of probate court under Probate Code, section 718.5.