Henderson v. Fisher

CHRISTIAN, J.

—In a previous appeal in the same action

{Henderson

v.

Fisher

(1965) 236 Cal.App.2d 468 [46 Cal. Rptr. 173]) it was determined that a piece of real property which had been owned by defendant administratrix ’ decedent was subject to a constructive trust for “quasi-specific performance” of a contract. Under the contract plaintiffs undertook to care for decedent for the rest of his life in consideration of decedent’s promise to convey his house and furniture to plaintiffs, reserving a life estate. Holding that the contract would have been specifically enforceable during decedent’s lifetime, the Court of Appeal reversed the judgment of the trial court which had allowed money damages on a

quantum, meruit

theory, and directed the trial court to amend its findings of fact and conclusions of law and decree specific performance of the contract.

In the present appeal defendant administratrix contends that the new judgment which was entered pursuant to the directions of the Court of Appeal errs in failing to provide that the property in question is held by the administratrix in trust for conveyance to plaintiffs

subject to costs of administration

in decedent’s estate. The administratrix relies upon

Ludwicki

v.

Guerin

(1961) 57 Cal.2d 127, where the court declared (p. 132 [17 Cal.Rptr. 823, 367 P.2d 415]):

1 ‘ The action to impose the trust does not interfere with the proceedings in probate. It does not set forth a claim against the estate, or against the executor, or against his right to possession for the purposes of administration. The action is in effect a suit between a claimant under the contract and claimants under the will or by intestacy as to who is entitled to all or part of the estate, and it does not purport to interfere with the administration by the executor, who, with respect to the proceeding, is in the position of a stakeholder. ’ ’

But the

Ludwicki