Scherb v. Nelson

[185]

SHINN, P. J.

The mother of plaintiffs, Josephine, married Charles A. Bromfield in 1917. She was then a widow and the owner of several parcels of real property. She died in 1944 leaving a will which was admitted to probate on the petition of Charles, who was named as sole beneficiary and who took distribution of the entire estate. Charles died in 1953. He left a will which gave a third cousin, defendant Dorothy L. Nelson, the greater part of his estate and left plaintiffs nothing. His estate is now in course of administration and Dorothy is acting as executrix.

The purpose of the present action is to have a trust impressed upon the property which Charles took by distribution of Josephine’s estate and which was owned by him at the time of his death. The material allegations of the complaint are that at the time J osephine made her will, she and Charles, with the knowledge and consent of plaintiffs, made an oral agreement that each would make a will naming the other as sole beneficiary and providing that if the latter should not be living plaintiffs would be the sole beneficiaries. It was further agreed that the respective wills would at all times be and remain in full force and effect. At the request of Josephine and Charles wills were prepared by Lawrence Scherb. J osephine kept her promise; Charles made a will, as agreed, but in 1950 made another will, as mentioned above, without the knowledge or consent of plaintiffs. The court found the allegations of the complaint to be true and rendered judgment impressing a trust upon the property. Dorothy L. Nelson, individually and as executrix, appeals.

The grounds of appeal are (1) insufficiency of the evidence; (2) error in the admission of testimony given by Lawrence Scherb, and (3) that judgment should not have been rendered against Nelson as executrix.

Lawrence Scherb is an attorney; Robert is a physician; their uncle, David J. Crikelair, is a brother of Josephine. All three testified on the subject of the oral agreement. Both Lawrence and Robert testified that their mother, in the presence of Charles, stated that she and Charles had agreed to make mutual wills which would name the other as beneficiary and that by the wills all the property of the survivor would go to the plaintiffs and that Charles stated that they had made this agreement. David Crikelair testified that after the death of Josephine, in conversations with Charles, the latter stated to him that he had made an agreement with Josephine that he would leave his estate by will to the plaintiffs. The