Keefe v. Keefe

KERRIGAN, J.

This is an appeal from a judgment entered upon an order of nonsuit in an action to enforce specific performance of an agreement alleged to have been made between plaintiff and his mother, Susan Keefe, deceased, where she promised to make a certain provision for him in her will.

Michael Keefe, the plaintiff’s father, died intestate, leaving at the time of his death two parcels of valuable real estate in the city and county of San Francisco, which estate was community property. One-half of his property was given his widow, Susan Keefe, and the other one-half descended to the five children of Michael and Susan Keefe. As one of such

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children plaintiff’s interest in the estate was therefore one-tenth.

At the time of the death of Michael Keefe, the plaintiff was in military service to the United States, and stationed in the Philippine Islands. With a view to looking after his interest in the estate he secured his discharge from the army, went to San Francisco, called upon his mother, the administratrix of the estate, and demanded his share of the property left by his father. The property was still in probate, undistributed, and this request of course could not be complied with. The next day, at the request of Susan Keefe, she and the plaintiff met at the office of her attorney. There were also present her attorney, and her daughters, with whom she was at the time-living and who are the principal beneficiaries under her will. After considerable conversation the plaintiff was ultimately persuaded to make a transfer of his interest in his father’s estate to his mother for her better maintenance and protection during her life, with the understanding that upon his mother’s death his share in his father’s estate would be returned to him.

Susan Keefe died in San Francisco March 12, 1909, leaving a last will and testament, according to the terms of which she in effect failed to carry out her contract with the plaintiff. Her will was subsequently, to wit, April 6, 1909, admitted to probate, and on April 14, 1911, this action was commenced.

Upon the trial thereof, as before stated, a judgment of non-suit was entered against the plaintiff. The motion for nonsuit was made upon the following grounds: 1. That the cause of action asserted by the complaint on the contract alleged and sought to be established and specifically enforced is barred by section 339 of the Code of Civil Procedure; 2. That the contract sought to be established and specifically enforced is within subdivision 7 of section 1973' of the Code of Civil Procedure; 3. That the contract alleged is not specifically enforceable.