Levis v. HANMOND

Hays, J.-

I respectfully dissent from Division II and the affirmance.

Division I of the majority opinion concedes that appellant has established an oral agreement to make mutual wills, with him as the ultimate beneficiary, and that such wills were duly executed in 1939 by Dave and Maud Flum. I agree.

Division II denies the relief of specific performance on a theory of balanced equities between appellant and the Hammonds. My difference with the majority opinion is based upon a factual, rather than a legal one.

The majority opinion, while conceding the existence of a valid agreement to make the wills, sustains the making of the new will by Dave Flum, after the death of his wife, on the *578 ground that Dave took nothing under Maud’s will. I think that the record shows otherwise, at least in a court of equity. The Flums were married in 1901 and started as tenant farmers. They were frugal and in 1911 they acquired the farm upon which they had been tenants for a consideration of $12,000. They placed a $5000 mortgage thereon. In 1914 or 1915 Mrs. Flum inherited some $1700 and shortly thereafter the mortgage was reduced by $1500. During their entire married life of 44 years she, in addition to being a housewife, assisted with the chores, helped in the field husking corn and annually raised some three to four hundred chickens. She never had a bank account so it is a fair inference that the proceeds therefrom went into Dave’s account. At the time the wills were executed, Mrs. Flum stated she owned an interest in the farm because of the use of her inheritance, which statement was made in the presence of Mr. Flum and he made no denial. This led to the making of the mutual wills. After her death, Dave Flum qualified as executor of her will. An inventory was prepared and signed by Dave in which he listed his wife as having at least an interest in the farm and the livestock. While I do not claim that this inventory makes any change in the legal ownership of the property, which was in the name of Dave Flum, and was clearly incorrect to that extent, it does, it seems to me, show an admission upon the part of Dave Flum that his deceased wife had an interest in the property. I think she had an equitable interest therein which passed to him under the will. I think he took value under that will and, under the authorities cited in the majority opinion, his will then became irrevocable.

But the majority opinion states that this being an action for specific performance, the equities are with the Hammonds and denies specific performance. True, Dave Flum lived in the Hammond home the last twelve years of his life, but during this time, except for some two months, he was up and about and able to take care of himself. During this time the Hammonds furnished him with a home", food and laundry. At about the time of Maud’s death he cleared the farm of the balance of the mortgage. What property he had at that time does not appear in the record. At the time of his death he had the farm and other assets to the value of $2486.24. For one who was sup *579 posedly receiving his board and room without charge, it makes one wonder what became of the normal returns from the farm during the twelve years. There is no competent evidence in the record that the Hammonds were not paid for what they furnished to him. The Hammonds base their claim upon an alleged agreement to leave his property to them if they would care for him. The will so states but it does not represent that Flum owned any particular property or would have upon his death. If he had nothing, they would receive nothing.

As is stressed in the majority opinion, this is a court of equity and equity follows the law. Only in cases where a contract is established will specific performance be denied, where to enforce it would be clearly unjust and shock the conscience of the chancellor. Appellant has established his contractual right and, under this record, his equities appear to me to be at least equal to that of the Hammonds.

I find nothing therein shocking to the conscience and would reverse the case and grant the relief prayed for by appellant.

Larson, C. J., and Peterson, J., join in this dissent.