Wickersham v. Wickersham

The facts are stated in the opinion of the court.

Francis J. Heney, Cowan & Juillard, and C. A. S. Frost, for Contestants, Appellants in No. 3037, and Respondents in Cross-Appeal No. 3157.

No estoppel is pleaded against Frank Wickersham on account of his contract to forego his expectancy in his mother’s estate; but if it was pleaded, the burden of proof would be on those claiming under it to show affirmatively that the contract was fair and just in all of its parts, and founded upon an adequate consideration. (Civ. Code, secs. 700, 1045, 3391; Bruck v. Tucker, 42 Cal. 352; Cooper v. Pena, 21 Cal. 403; Windsor v. Miner, 124 Cal. 492; Newman v. Freitas, 129 Cal. 283; Bacon v. Bonham, 33 N. J. Eq. 614; In re Garcelon, 104 Cal. 570;1 1 Story’s Equity Practice, sec. 336; Brownley v. Smith, 26 Beav. 644; Hale v. Hallen, 90 Tex. 427;2 Mastin v. Marlow, 65 N. C. 695; McClure v. Raben, 125 Ind. 139; McClure v. Raben, 133 Ind. 507; 3 Gowland v. de Faria, 17 Ves. Jr. 20 [1810]. The contract and conveyance of Frank Wickersham, as heir apparent of his mother’s estate in expectancy, were illegal and void, as being against public policy. (Civ. Code, secs. 1667, 1668; Bishop on Contracts, secs. 476, 478; Watt’s Admr. v. Hampton, 98 Ky. 166;1 Richardson v. Crandall, 48 N. Y. 348; Atcheson v. Mallon, 43 N. Y. 147;2 Drexler v. Tyrell, 15 Nev. 114; Elkhart County Lodge v. Crary, 98 Ind. 238.3) The interest of the widow in the community property vested in her immediately upon her husband’s death. (In re Burdick, 112 Cal. 387; Estate of Parker, 129 Cal. 396.) No election by the widow was necessary under a will like that of J. G. Wickersham. (Beard v. Knox, 5 Cal. 252;4 In re Silvey’s Estate, 42 Cal. 210; In re Gilmore, 81 Cal. 240; In re Gwin, 77 Cal. 313; In re Smith, 108 Cal. 119.) The election having been made under a mistake or misapprehension of her rights, there was no effective waiver of her rights in the community property. (1 Pomeroy’s Equity Jurisprudence, 2d ed., sec. 512; Hoxie v. Home Ins. Co., 32 Conn. 40;5 Shaw v. Spencer, 100 Mass. 395;6 Holdsworth v. Tucker, 143 Mass. 374; State v. Churchill, 48 Ark. 445; Ripley v. Ætna Ins. Co., 30 N. Y. 164;7 Montague v. Massey, 76 Va. 314.) The order granting a new trial should be affirmed. An offer to restore is not necessary where the claimants of rescission are entitled to a greater amount than the consideration paid under the contract. (Watts v. White, 13 Cal. 324; Allerton v. Allerton, 50 N. Y. 670; Judge of Probate v. Stone, 44 N. H. 593.)

Lippitt & Lippitt, Campbell, Metson & Campbell, J. C. Campbell, and Thomas H. Breeze, for Respondents in No. 3037, and Appellants in No. 3157.

Conceding that a conveyance of an expectancy does not pass the legal title, the contract, if made bona fide and for a valuable consideration, is enforceable in equity after the death of the ancestor. (In re Garcelon, 104 Cal. 570;8 Eissler v. Hoppel, (Ind.) 62 N. E. Rep. 692; Jenkins v. Stetson, 9 Allen, 128; Fitch v. Fitch, 8 Pick. 479; McClure v. Raben, 125 Ind. 139; McDonald v. McDonald, 5 Jones Eq. 211;9 Mastin v. Marlow, 65 N. C. 695; Fitzgerald v. Vestal, 4 Sneed, 258; Havens v. Thompson, 26 N. J. Eq. 383; Barham v. McKneely, 89 Ga. 812; Stover v. Eycleshimer, 4 Abb. Dec. 309; Carleton v. Leighton, 3 Mer. 667; Lyde v. Mynn, 1 Mylne & K. 683; Kuhn’s Appeal, 163 Pa. St. 438; Walker v. Walker, 67 Pa. St. 185; Power’s Appeal, 63 Pa. St. 443; Baylor v. Commonwealth, 40 Pa. St. 37;1 Wilson's Estate, 2 Pa. St. 325; Clendenning v. Wyatt, 54 Kan. 523; Parsons v. Ely, 45 Ill. 232.) The mother having been a party to the contract, it should prevent the heirs of Frank Wickersham from representing her estate upon this distribution. (In re Garcelon, 104 Cal. 570;2 Crim v. Sawyer, 132 Ill. 443.) The order granting a new trial was erroneous. This is a probate proceeding in which the doctrine of such a suit in equity as More v. More, 133 Cal. 493, has no application. (Estate of Davis, 136 Cal. 590.) This is not a proceeding in equity to rescind a contract, but is a probate proceeding contesting distribution in direct violation of a contract.