Parsons v. Cashman

LENNON, P. J.

The plaintiff in this action prayed for a decree declaring him to be the owner of and entitled to all of the property of which one Jemima Parsons died possessed, and that the defendants, as devisees and distributees under the will of "the decedent, held said property in trust for the plaintiff.

The plaintiffs’ cause of action was founded upon a contract alleged to have been entered into between the plaintiff and the deceased, Jemima Parsons, whereby she agreed that at her death she would by will .bequeath to plaintiff all of the property of which she might die possessed.

The defendants’ demurrer to plaintiff’s second amended complaint was sustained upon the ground primarily that the complaint did not state a cause of action. Thereupon judgment was rendered and entered for the defendants, from which plaintiff has appealed upon the judgment-roll.

The demurrer was well taken and rightfully sustained.

With reference to the material matter of the making of the contract in suit the allegations of the second amended complaint are as follows: “ . . . Plaintiff is the natural son of a deceased brother of said decedent, and was born in the year 1849 in England; that at the time of the birth of plaintiff said decedent resided in the city and county of San Francisco, state of California; that in the year 1874, when plaintiff was of the age of twenty-four years, he came from England to the said city and county of San Francisco, and thére made

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himself known to the said decedent; that said decedent thereupon caused investigations to be made to determine the relationship of plaintiff to her, and upon the conclusion of the said investigations, to wit, about three months subsequent to the arrival of plaintiff in California, acknowledged the said plaintiff as the natural son of her brother, William Parsons, and as her nephew; that a short time thereafter, at the urgent request of said decedent, the said decedent and plaintiff entered into an agreement whereby plaintiff agreed to become an inmate of the home of said decedent, to assume the duties and obligations of a son to said decedent, to assist her in all of her business and domestic affairs, as would her own son, and to give to said decedent the affection, support, confidence, and society that a son should give a mother; that at said time the said decedent was a single woman, and thereafter and until her death remained single and unmarried; that in consideration of the said agreement on the part of the plaintiff, hereinbefore set out, the said decedent agreed to perform the part of a mother to the plaintiff, and upon her death to leave to the said plaintiff the property of which she might then be possessed, as though the said plaintiff were in fact the son of the said decedent; that in accordance with the said agreement plaintiff did thereupon enter the household of said decedent, and did perform toward the said decedent all of the conditions of the said agreement, and did, so long as the said decedent remained at liberty to accept the society, affection, support and confidence of the said plaintiff, render the same at all times and without measure, with all the kindness, consideration, respect and devotion that a son of the said decedent could have given, and the said decedent continually thereafter promised and agreed to leave to the said plaintiff her property as hereinbefore set forth upon her death.”