Nealis v. Guidotti

SCHOTTKY, J. pro tem. Appellants are the children of Carl H. Nealis who died testate on May 6, 1946. Being dissatisfied with the provision made for them in their father’s will, appellants filed two separate actions, containing substantially the same allegations, which may be summarized as follows: That the respective plaintiffs were the only children of Carl H. Nealis, deceased; that under the terms of the will of said deceased $20,000 was bequeathed to Charles Henry Nealis, $10,000 to Margaret Nealis Benstein, and the remainder of decedent’s property was given to defendant Janet A. Guidotti; that grounds of contest of the will existed and were known to plaintiffs; that plaintiffs agreed orally with defendant not to contest the will in consideration of which she agreed to pay plaintiff Charles H. Nealis $150,000, and plaintiff Margaret Nealis Benstein $100,000; that defendant and the executor of decedent’s will purchased cashier’s checks payable to the respective plaintiffs in said amounts; that plaintiffs refrained from contesting the will and have lost their right to do so; that defendant failed to deliver the cash[11]ier’s checks to the respective payees; that there is due from defendant to plaintiff Charles H. Nealis $150,000, and to plaintiff Margaret Nealis Benstein $100,000.

The two actions were consolidated for trial and tried together, and on March 22, 1949, judgment in each case was entered in favor of defendant, the respondent here.

Thereafter, on May 7, 1949, appellants filed the complaint in the present action, which alleges the same kinship of appellants and deceased; the same provisions of decedent’s will; the same oral agreement not to contest the will; the same' purchase by respondent of the cashier’s checks; the same performance by appellants of their covenant not to contest; the same loss of their right to do so; the same failure of respondent to pay to appellants, respectively, the sums of $150,000 and $100,000, and the same prayer for relief. The complaint alleged further that respondent appointed the executor of decedent’s will as her agent and that in such capacity said executor delivered the checks to appellants subject only to the condition that the money represented by the checks was to be used to pay decedent’s income taxes, if required for that purpose. It is alleged further that, without notice to or consent of appellants, respondent and her said agent surrendered the checks to the bank and caused them to be cancelled notwithstanding that the money represented by them was not required for the payment of decedent’s income taxes.