Baker v. Bouchard

JENNINGS, J.

Appellant instituted her action in the superior court seeking to enforce an alleged trust in a certain parcel of land belonging to the estate of Robert Price, deceased. Respondent Ella Bouchard is the administratrix of said estate. Respondent Lois Price is the daughter and sole heir at law of decedent Robert Price.

The trust sought to be enforced is maintained to have arisen by virtue of an alleged oral contract between the decedent and appellant whereby decedent agreed, in consideration of appellant taking up her residence in decedent’s j home and furnishing to him necessary food and care during his declining years, that he would make a will devising to her the real property in question. It is contended that appellant fully performed on her part the agreement thus made. It appears that decedent attempted to make a will in which he devised the property to appellant, but that the will is invalid since it fails to comply with the statutory provisions requiring that it be subscribed by witnesses and as it is not entirely in the handwriting of the testator it cannot be upheld as an holographic will. In connection with this instrument, it is to be observed that it contains no reference to the alleged oral agreement.

Appellant complains of two findings of fact made by the trial court. By the first of these findings the court found that it was not true that the deceased agreed to will the property to appellant in consideration of appellant’s agreement to provide and care for decedent for the remainder of his life and by the second that it was not true that appellant relying upon the good faith of decedent provided necessary food, care and attention for him up to the time of his death.

Section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure expressly provide that an agreement to devise or bequeath property or to make provision for any person by will is invalid unless the contract or some

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note or memorandum thereof is in writing and subscribed by the party charged or by his agent. It is not contended that there was any written memorandum of the alleged agreement other than the invalid will. This instrument contained a simple devise of the real property in question to appellant without reference to any agreement in respect thereto. It does not, therefore, constitute a sufficient memorandum of the alleged oral agreement to comply with the requirement of the above-mentioned statutes