Ludwicki v. Guerin

GIBSON, C. J. Plaintiff, Marjorie Ludwicki, the daughter of decedent Paul Guerin and his wife, Alma, brought this action on September 4, 1959, against Bruce Guerin individually, as executor of Paul’s estate, and as administrator of the estates of Paul’s brother and mother, asking that the court (1) impress a trust upon one-half of the property in Paul’s estate on the basis of a contract executed by Paul and Alma in which they agreed to make wills leaving one-half of their property to plaintiff, (2) direct Bruce, as executor, to deliver to plaintiff one-half of the property in Paul’s estate remaining after administration, (3) enjoin Bruce, as executor, from making any other disposition of such property, and (4) make a declaration of plaintiff’s rights with respect to the agreement. Defendant Bruce is the adopted son of Paul and Alma.

The court held that the action was barred by the provisions of section 337, subdivision 1, and section 338, subdivision 4, of the Code of Civil Procedure.1 Judgment was entered for defendant, and plaintiff has appealed.

[130]The contract between Paul and Alma was executed in December 1922, and, after declaring that the parties desired a complete division and settlement of all their property interests, it provided, among other things, that each agreed to make a will by which all property subject to testamentary disposition would be left equally to plaintiff and Bruce. The document was recorded in Los Angeles County in 1923. Paul died in March 1952, and his will, which made no reference to plaintiff, provided that 45 per cent of his estate should go to his brother, 10 per cent to his mother, and 45 per cent to Bruce. Both the brother and the mother died prior to the commencement of this action. No petition for distribution has been filed in Paul’s estate.

This action was commenced more than seven years after Paul's death. If the action accrued at his death, it obviously was not brought within the four-year period specified in subdivision 1 of section 337 of the Code of Civil Procedure, supra, or within the similar period prescribed in section 343 for an action for relief “not hereinbefore provided for.” We shall first determine when plaintiff’s cause of action accrued insofar as concerns these provisions.

An action of the type involved here has been called one for quasi-specific performance of the contract to make a will. (See Bank of California v. Superior Court, 16 Cal.2d 516, 524 [106 P.2d 879].) Since the making of a will cannot be compelled, there can be no specific performance of such a contract in the strict sense, but under certain circumstances equity will give relief equivalent to specific performance by impressing a constructive trust upon the property which decedent had promised to leave to plaintiff. (Bank of California v. Superior Court, 16 Cal.2d 516, 524 [106 P.2d 879] ; Notten v. Mensing, 3 Cal.2d 469, 473 [45 P.2d 198] ; Rogers v. Schlotterback, 167 Cal. 35, 45 [138 P. 728].) The jurisdiction over such actions rests in equity and not in probate. (Brown v. Superior Court, 34 Cal.2d 559, 565 [212 P.2d 878].) A contract to make a will is breached only if it has not been complied with at the time of the promisor’s death, and for this reason the cause of action for the breach does not ordinarily accrue or the period of limitation commence to run until the promisor dies. (Brewer v. Simpson, 53 Cal.2d 567, 593 [349 P.2d 289] ; see 57 Am.Jur. 160, 54 C.J.S. 48.)2 Plain