Deming v. Drachmann

SHOEMAKER, J.

Plaintiffs Norman Richard Deming and John Monroe Deming, only grandchildren of John and Lillian Griffin, appeal from a judgment entered upon the sustaining of a demurrer without leave to amend their complaint to enforce a constructive trust on certain property, to compel a conveyance thereof, and to obtain a decree that defendant Casia Drachmann has no interest in the property in question.

The allegations of the complaint are to the effect that plaintiffs were beneficiaries under mutual reciprocal wills executed by John and Lillian Griffin, husband and wife, pursuant to an oral agreement to the effect that upon the death of either, all of their property should go to the survivor and, upon the

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death of the survivor, to plaintiffs; that after the execution of the wills and before they were revoked, the wife died; that the husband accepted in full the benefits of the wife’s will; that after the death of his wife, he revoked his will and executed a new will, leaving substantially all of his property to defendant

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that this new will has been offered for probate.

Defendant demurred to the complaint, both generally and specially. As grounds for general demurrer, defendant alleged (1) that the action was prematurely brought; and (2) that the action was based upon an oral contract barred by the statute of frauds. The grounds raised by way of special demurrer were (1) that a will contest then pending in probate would dispose of all the issues raised by the complaint; (2) that there was a defect of parties in that defendant had not received title to any of the assets of the decedent’s estate; and (3) that several causes of action were improperly united and not separately stated. The trial court sustained the demurrer without leave to amend on the ground that the action was premature because the complaint failed to allege that the last will of John Griffin had been admitted to probate and the property in question distributed to the defendant.

With respect to specification 2 of the general demurrer, respondent concedes that this ground is not well taken and that an action will lie in equity to establish a constructive trust based upon an oral agreement such as that pleaded in the instant case. (See