37 Wn.2d 879, EDMOND L. JANSEN et al., Respondents, v. RUTH CAMPBELL, as Executrix, Appellant
[No. 31433. Department One. Supreme Court January 20, 1951.]
EDMOND L. JANSEN et al., Respondents, v. RUTH CAMPBELL,
as Executrix, Appellant.«1»

[1] WILLS - SPECIFIC PERFORMANCE - ORAL CONTRACTS TO DEVISE - EVIDENCE TO ESTABLISH. An action seeking specific performance of an oral contract to devise in return for services to be rendered, is looked upon with suspicion by the courts, and to establish such a contract the person asserting it must show by evidence that is conclusive, definite, certain, and beyond all legitimate controversy that a contract as alleged was entered into between the deceased and the plaintiff, that the services contemplated as consideration for the contract have been actually performed, and that they were performed in reliance upon the agreement; and such a contract cannot be established by the acts of one party alone.

[2] SAME. In an action for specific performance of an oral contract to devise, held that the evidence supports the conclusions of the trial court that the contract as alleged was actually entered into that the services contemplated as consideration therefor were actually performed, and that they were performed in reliance upon the contract.

Appeal from a judgment of the superior court for King county, Findley, J., entered March 16, 1950, in favor of the plaintiffs, in an action for specific performance of a contract to devise, tried to the court. Affirmed.

P. R. McIntosh and W. S. Lewis, for appellant.

J. Duane Vance and Bassett & Geisness, for respondents.

SCHWELLENBACH, C. J. -

This is an appeal from a decree ordering that, upon the settlement of the estate of Donald Campbell, deceased, defendant Ruth Campbell deliver to plaintiffs Edmond and Carolyn Jansen, all of the properties and assets of the Donald Campbell estate.

Carolyn Jansen, of San Francisco, California, called "Babe," is a sister of Elizabeth Campbell, deceased, who was the wife of Donald Campbell, deceased. Elizabeth died March 6, 1947, and Donald died April 29, 1948. Ruth Campbell married the Campbells' son in 1922. He died in 1925.

The complaint alleged that, at the time of the death of

«1» Reported in 227 P. (2d) 175.

[1] See 7 A. L. R. (2d) 1171; 57 Am. Jur. 168.

880 JANSEN v. CAMPBELL. [37 Wn. (2d)

the parents of Elizabeth and Carolyn, the latter paid all of the funeral expenses; that at that time Elizabeth and Donald orally agreed with each other and with Carolyn that if Carolyn would not demand of them any contribution toward the funeral expenses, Elizabeth and Donald would leave all of their estates and properties to Carolyn and would execute wills to that effect; that, pursuant to said agreement, Carolyn did refrain from demanding any contribution toward said funeral expenses.

The complaint further alleged that, at the time of the death of his wife and continuously thereafter and until his death, Donald was suffering from cancer of the throat which was incurable, which he well knew; that, because of his physical condition, Donald was in need of assistance and care, both as to his physical well being and as to managing his own affairs; that, in order to secure the assistance of plaintiffs in the management of his affairs and the care of himself personally, he agreed to leave unrevoked the will he had theretofore executed; that, pursuant to said agreement, plaintiffs did render assistance in a great number of instances (enumerating them); that, contrary to the terms of said agreements, Donald revoked the aforementioned will and executed a new one leaving all of his property to Ruth. These allegations were denied by defendant.

The testimony showed that the mother of Elizabeth and Carolyn died in 1930 and the father in 1933. The father had not worked for twenty-five years and left no estate. Carolyn had supported them for ten years prior to the father's death and she paid their funeral expenses.

November 14, 1946, Donald and Elizabeth executed their wills, leaving their property to each other. The wills also provided that, in the event either would predecease the other, their property was devised and bequeathed to Carolyn.

March 6, 1947, two days prior to Elizabeth's death, she and Donald deeded certain real property in Seattle to Carolyn.

Jan. 1951] JANSEN v. CAMPBELL. 881

Prior to Elizabeth's death she and Donald had a joint account in the Canadian Bank of Commerce in Seattle. August 21, 1947, this was changed to a joint account between Donald and Carolyn.

After Elizabeth's death Donald spent considerable time with the Jansens. He would visit them in San Francisco and they would visit him in Seattle. While in Seattle, they usually would go up to Vancouver, B. C., with him to visit some relatives of his. During 1947 and 1948, four checks on the Bank of America of San Francisco, totaling $810.70, were issued by Edmond L. Jansen to the order of Donald Campbell, and endorsed by him. March 13, 1948, Donald issued a check to C. Jansen in the amount of $550. March 12, 1948, Donald was taken to the University of California Hospital. This was about six weeks before his death in Seattle. Three checks were issued by Edmond Jansen on the Bank of America to the regents of the University of California: March 12, 1948, $180; April 5, 1948, $200; April 12, 1948, $9. These were all endorsed by the regents and by the University of California Hospital.