Scrimsher v. Scrimsher

SHEPARD, Justice. This is an appeal from a decision of the trial court in favor of the defendant-respondent in an action by plaintiffs-appellants which in effect sought to impose a trust on certain real property, decree that defendant-respondent had only a life estate in said property, and require respondent to comply with the terms of an alleged oral agreement, and by will devise certain real property to appellants. We affirm. Leda and Corey Scrimsher were married approximately 25 years prior to his death in 1971. Corey Scrimsher had been previously married and had four children of that first marriage. Those children are plaintiffs-appellants in the instant action. The testimony of Leda Scrimsher reveals the following circumstances and events. At the time of his marriage to Leda, Corey Scrimsher owned a ranch in the Idaho Falls area. For approximately ten years Corey and Leda Scrimsher farmed that ranch and bought other very substantial parcels of ranch property which they also farmed. Following the marriage they purchased an implement dealership in Idaho Falls and a home in Idaho Falls. During all of that period of time there was a warm and loving relationship between the children and their father and stepmother. During part of those years the children would spend part — 275 — or substantially all of their time at the ranch with their father and stepmother. In 1957, due to adverse economic conditions, Corey and Leda sold all of their properties in the Idaho Falls area and moved to the Culdesac area where they purchased four farm properties, the Davis, the Goodall, the Gray, and the Norberg (the home place). There, as at Idaho Falls, Leda Scrimsher participated actively in the ranching activities. At different times Leda and Corey Scrimsher attempted to give Roger, and then Bill, the Goodall place, but evidentally neither of them were sufficiently interested. In 1965 Corey Scrimsher suffered a heart attack and could not work the farms, so all the properties except the Norberg place were sold, along with their herd of cattle. At some time during the 1960’s, with all of the children raised and away from home, Leda Scrimsher, with the acquiescence of Corey, returned to college and began a career in teaching, ultimately becoming a college professor. Since the Norberg farm had been purchased on contract, Leda, along with her teaching career, participated actively not only in working the farm, but in paying off the indebtedness and making improvements thereto. There is substantial evidence that the real property at issue here was the community property of Leda and Corey Scrimsher.1 There is likewise no question but that Leda Scrimsher considered all of the four children to be her own children, as well as those of her husband, and that prior to this lawsuit she intended the four children to be her heirs. Corey Scrimsher shared the wish of Leda Scrimsher. However, at one time he evidently changed his mind and corresponded with his lawyer, directing the preparation of a will bequeathing all of the property to Leda Scrimsher. That will evidently was never executed. All of the above evidence was uncontradicted. Following the death of Corey Scrimsher in 1971, Leda Scrimsher and the four children met at a lawyer’s office. They were then informed that Corey Scrimsher had not executed a will but had in fact died intestate. Therefore, they were told that since the property in question, i.e., the Nor-berg place, was community property, that it would pass to Leda Scrimsher. The testimony is somewhat conflicting regarding precisely what was then stated by the parties. All parties, however, were surprised at the non-existence of a will. Leda Scrimsher evidently believed that Corey had executed a will leaving everything to her, and the children evidently were surprised that Corey had not executed a will in some way bequeathing some interest in the Norberg property to them. In fact, the children thereafter went to the Norberg property and conducted a search for a will. No will was, nor has been, ever found. It is asserted by the children that at the meeting following the death of Corey Scrimsher, Leda Scrimsher unequivocally agreed to execute an irrevocable will bequeathing the Norberg place to the children in return for their agreement not to contest the probate proceedings of their father’s estate. On the other hand, Leda Scrimsher asserted that at said meeting she stated that the Norberg place was hers to do with as she wished, and if there was anything left at her death it would be bequeathed to the children. The estate of Corey Scrimsher was probated. All of the property contained on the inventory was denominated as community property including the Norberg place. Distribution of the estate was made to Leda Scrimsher. Following the death of Corey Scrimsher, Leda Scrimsher made substantial improvements to the Norberg place and continued to make payments on the balance of the contract to purchase which was approximately $43,000.00. By then she was no longer living on the Norberg place, and — 276 — it was causing her very substantial economic problems, together with the problems of finding someone to work the land. She, at different times, offered to sell the place to two of the children, but they refused. There is no indication that any of the children performed any work or rendered any service on the Norberg place, or to Leda Scrimsher following the death of Corey Scrimsher. In 1981 she determined that the place was too much of an economic and personal burden upon her. Since none of the children desired to purchase it, she listed the property for sale. That action precipitated the instant lawsuit. Trial was held and voluminous testimony of all the parties was taken. The testimony was substantially without conflict except that portion relating to the alleged oral agreement made by Leda Scrimsher immediately following the death of Corey Scrimsher. Following trial the court made extensive findings and conclusions which can be summarized as follows: the court found that the evidence as to the oral agreement of Leda Scrimsher was not shown by a preponderance of the evidence, to say nothing of the standard which requires clear and convincing evidence; that the evidence indicated a lack of reliance by the children on whatever agreement Leda Scrimsher may have made; that the exchange of letters between attorneys was not sufficient in specificity to satisfy the statute of frauds as a defense to an alleged oral agreement. The court concluded that the plaintiff children had not proven “the existence of any express contract, contract implied in fact nor quasi-contract, nor is this a case where the defendant should be equitably estopped. If any agreement did exist between the parties, its enforcement would be barred by the statute of frauds.” The trial court held in favor of Leda Scrimsher and against all claims of the children, and the children appeal. On appeal it is asserted that the trial court erred in ruling that the correspondence of the attorneys failed to satisfy the statute of frauds, in failing to enforce the alleged agreement under the doctrine of part performance, in failing to find that an agreement was entered into between the parties, and in failing to find that Leda Scrimsher was estopped to deny the existence of the agreement. We note first that the trial court specifically found that the oral agreement, as contended for by the plaintiff children, did not exist. Hence, if that finding is sustained by the evidence presented at trial, we need not treat the question of whether that agreement was sufficiently evidenced by the writings of the attorneys, nor whether that alleged agreement was partially performed. We view the evidence most favorably toward the respondent, and in support of the trial court’s finding and decision. Rueth v. State, 103 Idaho 74, 644 P.2d 1333 (1982); see also Fischer v. Fischer, 92 Idaho 379, 443 P.2d 463 (1968). Under that standard the trial court may well have accepted the testimony of Leda Scrimsher and rejected the testimony of the children as to the conversations of the parties during and immediately following the meeting at the attorney’s office following the death of Corey Scrimsher. The Scrimsher children assert that at said meeting Leda Scrimsher agreed to make an “irrevocable” will bequeathing the Norberg property to the children. That assertion is denied by Leda Scrimsher. She states that she agreed to make a will devising the Norberg property if anything of it was left at the time of her death. It is not disputed but that Leda Scrimsher did make a will naming the Scrimsher children as her heirs. However, upon the filing of the instant lawsuit that will was revoked by her. As noted by the trial judge, even considering the correspondence between the attorneys, nothing is mentioned concerning the irrevocability of such a will. Nor is anything mentioned concerning Leda Scrimsher holding only a life estate in the property. To that extent such correspondence is equivocal. The trial court also held that the evidence revealed a lack of reliance by the Scrimsher children on any alleged promise — 277 — of Leda Scrimsher. Again, there is conflicting evidence between the testimony of the Scrimsher children and Leda Scrimsher concerning whether or not there was reliance by the children as shown by their later failure to actually engage in a contest of the Corey Scrimsher probate proceedings. According to the testimony of Leda Scrimsher, three of the children withdrew their participation in the proposed probate contest because of the friction and ill feelings it was causing in the family. The remaining son indicated that in any event he did not trust or believe whatever promise Leda Scrimsher may or may not have made. The ruling of the trial court that Leda Scrimsher was not equitably estopped to deny her alleged agreement is, we hold, equally sustained by the evidence. The property in question was acquired nearly 30 years ago by Corey and Leda Scrimsher during the course of their marriage. It is undisputed that until Corey Scrimsher’s death in 1971 he and Leda worked and paid for the farm, and made substantial improvements thereon. It is undisputed that for the ensuing ten years, 1971-1981, Leda Scrimsher worked and paid for the farm by herself. There is no showing that the property was anything but the community property of Corey and Leda Scrimsher. There is nothing whatsoever in the record to indicate any attempt at tracing any separate property of Corey Scrimsher to indicate a separate property interest. Hence, there does not appear to have been any basis for the alleged or attempted contest to the probate of the estate of Corey Scrimsher. As noted above, there is no evidence of any performance of work, or the rendition of any service, relating to the Norberg property, or for the benefit of Leda Scrimsher. In this respect the instant case is clearly distinguishable from cases such as McMahon v. Auger, 83 Idaho 27, 357 P.2d 374 (1960), wherein the claimant, under an asserted agreement to make a will, had spent many years in service to the decedent. We note further that the Court, in McMahon v. Auger, supra, stated, “In the instant case there are no innocent heirs or next of kin who will be affected by the specific performance of the agreement involved.” There were no other heirs, and the estate would otherwise escheat to the State of Idaho. The settled rule in this state is “[w]here an oral agreement of this nature [to make a will] rests on parol evidence, it must be established by clear, satisfactory and convincing evidence. Such a contract is to be looked upon with suspicion and can only be sustained when established by the clearest and strongest evidence, and such evidence must be so clear and forcible as to leave no reasonable doubt of its terms or character.” Johnson v. Flatness, 70 Idaho 37, 46, 211 P.2d 769, 774 (1949). This rule was followed in McMahon, supra, wherein the Court stated, “that in order for an oral contract, such as is here involved, [to make a will] to be specifically enforced, it must be established by clear, convincing and satisfactory evidence and must be complete, definite and certain.” McMahon also indicates that both the existence of such a contract and its terms, and the clearness and convincing force of the evidence thereof, “is a question primarily for the trial court” and will not be disturbed on appeal. In short, we hold that the record supports the ruling of the trial court that an agreement to make an irrevocable will was not established by clear and convincing evidence. We further hold that the record supports the ruling of the trial court that the facts are not sufficient to equitably estop Leda Scrimsher from denying the existence of the alleged agreement as contended for by the Scrimsher children. The decision of the trial court is affirmed. Costs to respondent. DONALDSON, C.J., and BAKES, J., concur. Footnotes [1] Even Roger Scrimsher testified: Q. "Mr. Scrimsher, you’re not saying, are you, that your father ever treated his property here in Nez Perce County other than as community property? A. No, he didn’t. Q. He always treated it as community property? A. That's right.’’