Di Salvo v. Bank of America

California Court of Appeal Jun 26, 1969 No. Civ. 25332Published

Before: Brown (H. C.)

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Holding. The court held that the plaintiff's complaint sufficiently alleged the elements of estoppel to prevent the defendants from asserting the statute of frauds as a defense to an oral contract to make a will. Consequently, the trial court erred in sustaining a demurrer to the complaint.

Issues

Whether an oral agreement to make a will is enforceable under the doctrine of estoppel to prevent unconscionable injury and unjust enrichment.
Whether the plaintiff's complaint sufficiently alleged facts to survive a demurrer regarding the statute of frauds.

Disposition. reversed

Quotations verified verbatim against the opinion

“The doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent the manifest injustice which would result from the refusal to enforce oral contracts”

“The trial court erred in sustaining the demurrer to plaintiff’s complaint.”

BROWN (H. C.), J.

This is an appeal from a judgment of dismissal with prejudice following the sustaining of a demurrer to the first amended complaint without leave to amend. The demurrer was sustained on the basis that the complaint alleged an oral contract to "make a will and thus was not enforceable under the provisions of Civil Code section 1624, subdivision 6.

Plaintiff contends that under the facts stated in the complaint defendants are estopped to assert as a defense the statute of frauds.

Plaintiff, Sandra Smith Di Salvo, is the daughter of A. T. Smith, Jr., and Ethel Smith, and the granddaughter of A. T. Smith, Sr., and Alma Smith. A. T. Smith, Jr., plaintiff’s father, died on or about March 9, 1967, leaving a will which is being probated in Santa Clara County. In this action plaintiff seeks to-impose a constructive trust in her favor on one-half of the property in A. T. Smith, Jr.’s estate. As the basis for her action, plaintiff alleges that A. T. Smith, Jr., by making the will in question, breached an oral agreement with his father A. T. Smith, Sr., and his mother, Alma Smith, in which he promised to leave one-half of his property to plaintiff.

The allegations of the first amended complaint which the trial court found to be vulnerable to attack by demurrer may be summarized as follows: For several years prior to his death A. T. Smith, Sr., lived with a woman named Josephine Smith and held her out as his legal wife, despite the fact that he was married to Alma Smith. At some time subsequent to August 1, 1941, A. T. Smith, Sr., Alma Smith, A. T. Smith, Jr., and his wife, Ethel, met and discussed the disposition to be made of the property of A. T. Smith, Sr. Alma Smith agreed to allow A. T. Smith, Sr., to dispose of all their community property by will. In consideration for this agreement, A. T. Smith, Sr., agreed that he would see that Alma, his wife, and Sandra, who was at that time their only grandchild, were provided for. He further agreed that A. T. Smith, Jr., was to. receive a substantial portion of the community property. At this meeting A. T. Smith, Jr., agreed to take care of his mother for the remainder of her life, to take care of Sandra’s support and education and to leave Sandra one-half of whatever property he owned at the time of his death.

A. T. Smith, Sr., died in 1942. His will left his property to

[354]

Di Salvo v. Bank of America

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BROWN (H. C.), J.

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