The plaintiff and respondent filed an original complaint in two counts. The first count is an action in the usual form to quiet title; the second count is in unlawful detainer or ejectment. The defendant and appellant filed an answer denying the allegations in both causes of action and as affirmative defenses and counterclaims set out in six counts matters of family history and ownership of the property in question before the death of defendant's father, conveyance to his mother, the execution of a so-called irrevocable will, his occupation and use of the home and farm lands in question at Willard City, Box Elder County, Utah, for a period of about 12 or 13 years, with some oral understanding between himself and his mother as to the terms and conditions upon which defendant proceeded.
The first question raised by appellant arises out of the filing of an amended complaint in the nature of an answer to the counterclaim and to conform with the proof. The ground upon which the ruling of the court is assailed is that the amended pleading constitutes a departure from the original complaint.
Pursuant to the allegations of the six counterclaims, among other things, defendant asked for specific performance of the alleged contract or will (to be discussed later) or, if specific performance were unavailing, he asked for a reasonable value for his services with an equitable lien upon the property. Plaintiff filed a reply alleging facts which she claimed sufficient to defeat defendant's asserted right to specific performance. Amendments were made and stipulations agreed to as the trial proceeded. During the introduction of the evidence, at a time when defendant had asked leave to amend, counsel for plaintiff stated at the time defendant amended his pleadings, that counsel for plaintiff desired that if it appeared necessary to amend later that *Page 266 such permission would be granted; that at that time it was agreed to. The record bears out the alleged understanding.
When the cause came on for argument the court indicated some doubt as to whether the relief asked for in the nature of rescission could be granted under the pleadings. Amendment was proposed and permitted. Appellant complains of this ruling on the ground of departure as indicated. We think appellant is not in position to urge the point successfully. In appellant's first affirmative defense and counterclaim, it is alleged "that the said plaintiff, by demanding the immediate possession of said premises and the institution of this action, has elected to rescind said partly executed family agreement." Equitable defenses are pleaded.
The trial court proceeded with the trial and both parties offered evidence in support of and in opposition to the issues as so accepted and presented without objection. In fact, all the matter relating to the whole situation was aired to the court and the court so considered the proposition. The appellant does not nor could he well contend that he was 1 prejudiced, surprised or otherwise put to any disadvantage. The battle ground was of his own choosing. Whether the amendment was necessary may be doubted. The plaintiff was put in the position of pleading the pertinent facts by way of reply to defendant's counterclaim. In addition to that, the evidence was all before the court. Skola v. Merrill, 91 Utah 253,64 P.2d 185; Straw v. Temple, 48 Utah 258, 159 P. 44. In any event, defendant was not prejudiced, the whole matter being before the court as it was, it was proper for the court to dispose of the issues presented under the circumstances. UtahLead Co. v. Piute County, 92 Utah 1, 65 P.2d 1190.
The facts in the Utah Lead Case just cited are different from the instant case, but where an action is brought and equitable defenses and counterclaims are pleaded and the issues are tried as thus formed, although "technically, an *Page 267 allegation in a reply is to make issue with an answer or counterclaim and cannot initiate in whole or in part 2 a cause of action" [page 1194] when the issues thus formed are tried there seems no way reasonably to dispose of the matter except for the court to completely dispose of the issues where there is no surprise, prejudice or error affecting substantial rights. Appellant's claim to an interest in the property in question arises, if at all, out of the terms of the will made at his request, if not actual dictation, by his mother, the respondent, now deceased, and for whom her personal representative has been substituted. The will, its provisions, the operation of the farm under an oral agreement, the alleged changed conditions, compensation and other items were injected by defendant in his answer and counterclaims. After the preliminary provisions and paragraphs of the will, the following provisions are found therein:
"IV. This will is made immediately after the death of my beloved husband, Joseph W. Ward, and in view of the fact that it is my desire, as well as the desire of my family, that my son J.H. Ward shall have all real estate, including the home, together with all personal property such as farm implements, machinery, cattle and horses, and all other personal property used in connection with said farm upon my death, and it being the desire of all of the family that he shall immediately return to Willard and take over the farm and manage the same for me during my lifetime and shall pay to the girls, or their issue, upon my death, a definite sum of money hereinafter set forth, which said sum has been agreed upon by all members of the family and is considered by all to be just and equitable in the premises.
"Now therefore, in consideration of my son J.H. Ward's return to Willard to operate the farm for me during my lifetime, I hereby give, devise and bequeath to my son J.H. Ward all of my real estate of which I may die possessed, as well as all personal property used in connection therewith, for the management of said farm, being everything excepting household goods, which will be hereinafter disposed of; provided however, that my son J.H. Ward shall pay to each of my daughters, Eliza E. Dial, Hazel Budge, Ada Dern and Eva Nelson, or to their issue, if either of said daughters are deceased, the sum of One Thousand Dollars ($1,000.00), which said payments shall be made to each at the rate of One Hundred Twenty-five Dollars ($125.00) per *Page 268 year to each daughter, and there shall be no interest on said deferred payments until maturity. If the payments are not made at maturity, then thereafter they shall draw interest at the rate of eight per cent per annum; provided, however, that my son J.H. Ward shall have the right to pay as much more, or all of the same at any shorter time that he may so desire.
"It is my intention and desire that the above bequest to my said son J.H. Ward shall be dependent upon his payment of the above sums to each of my daughters in the manner and form aforesaid and each of my daughters shall be given a lien upon said real estate for the amount she is entitled to, and in the event of the failure of my son to make said payments, then and in that event each of my daughters, or their heirs, shall have the right to foreclose their lien to the extent of their interest in said property.
"Should my son J.H. Ward desire not to accept the provisions under this will, then it is my desire that upon my death all of my property shall be divided equally between my children or their issue, in the event of the death of any of my said children. In the event of the death of my son J.H. Ward before me, then and in that event I desire that his issue shall take, under the terms of this will, the same as though he were still alive, and shall be governed by the same provisions hereinbefore made.
"V. In view of the fact that this will is being made in consideration of my son's caring for said property during my lifetime, I hereby declare this will to be and the same is irrevocable."
There is no other written document relating to the matter. All of the other evidence lies in parol. After hearing the evidence, the trial court construed and treated the will as an option contract, and determined: That the document gave the defendant (the son) no present interest in the property nor any by reason of the management thereof; that, under the oral agreement, he had been fully paid for service rendered; that, at most, it could not be more than an option for purchase after the death of the mother; and that, although by declaration nonrevocable, there was nothing binding upon the son, since, having assumed no obligation to exercise the alleged option, he could terminate his management arrangement at will.
Appellant submits a number of cases and argues that there was created an irrevocable trust. The cases submitted *Page 269 support the conclusions reached in each of the cases in finding a trust. Most of them were based upon either a conveyance constituting a part of the res or a continuing service not otherwise compensated for, sometimes associated with possession or part performance sufficient to take the cases out of the statute of frauds. As indicated in appellant's brief, the case ofTorgerson v. Hauge, 34 N.D. 646, 159 N.W. 6, 3 A.L.R. 164, is in many respects similar in its facts to the instant case. In that case Torgerson entered into an oral agreement with his parents to the effect that he should reside with and care for them during their lives and at their deaths he should receive their property. They executed and delivered to him their joint will constituting him their sole devisee. Torgerson lived with and cared for his parents until his death. His wife and children and administrator offered to continue to care for and support and maintain them as previously. Other family influence persuaded the parents to make a new will. This was contested by the wife and children of Torgerson. It was held there that a will executed under such an agreement was both testamentary and contractual and could not be revoked without the consent of the beneficiaries. Many of the cases relating to such contractual wills or trusts so created or resulting therefrom are cited and considered. Most of such cases depend upon the facts of each case.
It will be observed that defendant (the son) in the instant case was to "take over the farm and manage the same for" his mother during her lifetime, and then to pay the other members of the family a specified sum. The evidence discloses that the son and mother entered into an oral agreement after the will was made whereby the farm was to be operated upon a share basis. He did not operate it for his mother. He operated it for himself as any other tenant, lessee, or share-cropper would.
We have carefully read the record and are of the opinion that the findings made by the court are supported by the *Page 270 evidence, and, considering the opportunity the trial court had of observing the witnesses, their attitudes, candor or want of it, and the presence of the parties, in determining the weight in matters of apparent conflict, it cannot be said that the findings are not supported by a preponderance of the evidence. The evidence is fairly summarized in the court's findings: The court found that at the time of the filing of the action, plaintiff was and still is the owner and entitled to the possession of the described property; that the defendant had no claim nor interest therein; and, we quote:
"4. The court further finds that Joseph W. Ward, husband of plaintiff and father of defendant, and plaintiff's immediate predecessor in interest to the premises herein described, died on or about the 4th day of May, 1922; that defendant is the only son of plaintiff and, while plaintiff was overcome by grief and in a highly nervous condition and easily imposed upon, defendant solicited plaintiff to permit him to remove his family from Idaho and return to Willard and operate the farm; that defendant stated that he, being the only son, considered it his right to purchase all of plaintiff's property upon her death; that, because of the relationship which existed between plaintiff and defendant, plaintiff imposed the greatest confidence in the defendant, and, believing defendant would deal justly with plaintiff, if she would make some kind of provision for defendant to acquire said property after her death, plaintiff permitted defendant to consult an attorney with respect to the preparation of a will; that thereafter defendant did consult an attorney and requested the attorney to prepare a will for plaintiff; that thereupon and at the request of defendant the said attorney drew a document purporting to be the last will and testament of plaintiff; that each and all of the provisions contained therein were dictated by defendant and not by plaintiff; that after the said will was prepared, defendant brought plaintiff to the office of said attorney and the said instrument was then read to plaintiff and thereupon plaintiff signed the will; that a copy thereof is attached to plaintiff's amended complaint, marked Exhibit `A', and is by reference made a part of these findings; that immediately upon the execution of said will same was delivered to the defendant who ever since said time had had the exclusive possession thereof; that defendant has refused to permit plaintiff to see said will since that time and that plaintiff has never seen said document or any copy thereof until the same was introduced by defendant as an exhibit during the trial of this action. *Page 271
"5. That thereafter, during the month of September, 1922, defendant moved his family from Idaho into a portion of plaintiff's home; that up to this time no definite arrangements had been made between plaintiff and defendant with respect to the operation of said farm and that shortly thereafter defendant and plaintiff orally agreed that defendant might rent said farm during plaintiff's lifetime upon the following terms, to-wit:
"That each would pay one-half (1/2) the cost of planting said land; one-half (1/2) of the taxes and one-half (1/2) of the cost of any extra labor if someone outside the family had to be occasionally hired and that they would divide the balance of said crops or the proceeds thereof one-third (1/3) to plaintiff and two-thirds (2/3) to the defendant; that pursuant to said oral lease, the defendant went into possession of the farm in the spring of 1923; that at the time defendant solicited plaintiff to permit him to return to Willard and purchase said property upon the death of his mother and also at the time of making of said oral lease and as a part of their general understanding and agreement, defendant covenanted and agreed that he would devote all his time, as well as the time and attention of his family, to the proper operation of said farm; that he would cultivate said premises in a good and husbandlike manner, keep all buildings and implements in a good state of repair; that he would plant portions of said lands to orchards and otherwise improve said farm with a view of making it highly productive; that he would harvest said crop in the proper season and would not hire any help except occasionally when he and members of his family were unable to keep up with the work.
"Defendant further agreed that he would at all times be a dutiful and loving son; that he and his family would move into a portion of plaintiff's home and that they would make life agreeable to plaintiff during her declining years and that they would bestow upon plaintiff that degree of affection that she had a right to assume would be bestowed upon her by her only son and his family.
"6. That relying upon said promises, plaintiff executed said will and later permitted defendant and his family to move into said home and thereafter entered into an oral lease as aforesaid. The court further finds that the defendant failed to devote his time to farming said premises but, on the contrary, he has accepted employment elsewhere; that while he has spent some time in the early mornings and evenings, before and after his regular work, in the management and over-seeing of said farm, that the major portion of the work has been performed by his boys of immature age; that defendant has failed to keep up the buildings, fences and improvements upon said premises. The court, however, finds that defendant, with the assistance of his boys, has farmed said premises in a reasonably efficient manner and that they *Page 272 have produced upon said property crops commensurate in value with those produced by other people in that vicinity. The court further finds, however, that, during the last few years plaintiff and defendant have had frequent difficulties growing out of the attempt by the plaintiff and defendant and his family to live in one home; that, while the court does not attempt to place the responsibility on either side, yet the court recognizes the utter impossibility of plaintiff and defendant and his family to continue to live in one home; that said difficulties have lead to a family estrangement and, as a result thereof, defendant and his family do not treat the plaintiff with the consideration that one might expect; that plaintiff has become ill in body and highly nervous and that it is impossible for the plaintiff and the defendant and his family to live any longer in the same house.
"The court further finds that the defendant has failed to divide the crops or the proceeds thereof in accordance with the terms and provisions of said oral lease; that the defendant has a large family and that, before dividing said crops, he has used a large amount of the produce grown or produced upon said farm, such as butter, milk, eggs, vegetables, fruits, etc., and has divided only what is left instead of giving plaintiff one-third (1/3) of the net proceeds after deducting only cost of said taxes and extra labor; that plaintiff has pleaded with defendant to change his course of conduct and to live up to his agreement but the defendant has shown a disposition to be inattentive, cold in his attitude and somewhat disrespectful in his treatment of plaintiff; that during the winter of 1935-6 the defendant would go for weeks without speaking and finally, on the 20th day of March, 1936, plaintiff served a written notice upon defendant demanding that he surrender possession of said premises but, notwithstanding such demand, defendant refused to vacate said premises or to move out of said home and he has continued to reside therein and to farm said premises during the season of 1936 and that he has now harvested all crops grown or produced upon said premises during the season of 1936. The court further finds that the said agreement permitting defendant to occupy said home and rent said premises is void and unenforcible because said agreement is not in writing as required by the provisions of Chapter 5, title 33 of the Revised Statutes of Utah, 1933, Sections 33-5-1 to 33-5-4. The court further finds that the said will, if treated as a contract, does not give the defendant a present interest in the property by reason of his management and control thereof during the lifetime of his mother but that there is a condition precedent to his acquiring an interest in the property as provided in the last paragraph of page 2 of said will which provides for the payment to his sisters of one thousand dollars ($1,000) each in annual installments and the last paragraph of paragraph 4 of the will makes it *Page 273 optional with the defendant as to whether or not, even though he may have managed the farm to the date of the death of his mother, he elects to purchase said property from his sisters. Because of these facts, the court is of the opinion that it was not contemplated by the parties that defendant should acquire anything more than the right to purchase the property at the fixed price without interest if he managed it for his mother but that the will did not give to the defendant any present interest in said property."
The foregoing findings fairly reflect the preponderance of the evidence.
Under some circumstances, a will may constitute a contract that may be irrevocable; under other circumstances it may constitute a contract only, and a breach thereof might be measured in damages; or in other cases the will is revocable, ambulatory and may be amended or changed to meet the mind of the maker at any time. When the will is sought 3-6 to be maintained also as a contract, there must be sufficient to satisfy the statute of frauds if the will itself does not do so. In the instant case, at the time of the commencement of the action and during the trial, plaintiff was alive and there appears nothing in the record which negatives her right to the property. The will recites that it is the desire of the mother that her son shall have the property after her death upon complying with the conditions in the will. Under the terms of the will, it was in consideration of his operating the farm "for his mother" during her lifetime that he was to have the privilege of purchasing it after her death. This he did not do. The will did not provide for the son to move into the property or to rent it during the mother's lifetime, nor to receive any of the rents, issues or profits therefrom. The operation of the farm, the occupation of it and terms under which it was to be operated, cultivated or used were separate from anything in the will. The court took the view that the defendant had been paid for all the services he had rendered. We cannot say the court was in error in so finding and concluding. Andrews v. Aikens,44 Idaho 797, *Page 274 260 P. 423, 69 A.L.R. 8. There is nothing in the oral contract or in the will itself as to the operation of the farm requiring appellant to render aid or assistance in case of sickness, or to remain upon the farm, which he did not do. There is nothing appearing in the record that could warrant the conclusion that, even had he done so, the service could not be compensated for. Ordinarily equitable relief in the form of specific performance of a contract-will, such as is presented herein to devise or bequeath property, will not be allowed unless the contract is clear and the evidence convincing. The legal remedy would furnish adequate relief. Zellner v. Wassman, 184 Cal. 80, 193 P. 84.
It is generally held that such contracts will be closely scrutinized and strictly construed. The situation as revealed by the will itself leaves some doubt as to what the son was to do. To operate the farm for his mother during her lifetime, does not appear sufficiently to specify his duties. True, an alleged oral agreement was aired out by testimony, 7-10 which, nevertheless, included differences as to understanding of its various terms. In order to entitle a party to specific relief, it must be made to appear that the contract is in all respects fair, just and reasonable, and that the compensations are mutual. It must be attended with all of the attributes of fairness and honesty as will appeal to the conscience of the chancellor. The terms may not be pieced out of oral testimony, often uncertain and contradictory. The court, sitting as a chancellor, had the opportunity of measuring all of these factors; and, since it decided against the defendant's claims, we may not disturb its findings and judgment in the premises. Kurtz v. De Johnson, 42 Cal.App. 221, 183 P. 588;Halloran-Judge Trust Co. v. Heath, 70 Utah 124, 258 P. 342, 64 A.L.R. 368.
The defendant signed nothing, agreed to nothing, unless certain recitals in the will itself were binding upon him — which they do not appear to be. Plaintiff could not compel the defendant to perform anything pursuant to the terms of the will alone, and he might terminate the lease or abandon *Page 275 the whole situation at his pleasure. The oral agreements or understandings as to the occupation and use of the property were made after the will, and seem to have been fully compensated for. He could move off at any time, or even refuse to go forward with the purchase option provided for in the will after the death of his mother.
A careful examination of the record convinces us that the trial court correctly disposed of the matter. Finding no error, the judgment is affirmed, respondent to recover costs.