I dissent. In my opinion, the record discloses ample evidence to sustain the trial court's finding that the deceased, Tonjum, had entered into a verbal contract with respondent, Jennings, by the terms of which the latter was to receive Tonjum's real and personal property upon the contingency of Tonjum's death.
In the recent case of Blodgett v. Lowe, 24 Wn.2d 931, 938,167 P.2d 997, this court laid down the rule of evidence with reference to the requirements for establishment of an oral contract to convey property after death. It is expressed in this language:
"In order to establish a contract such as here alleged to have been made, it is necessary that the person asserting it show, by evidence that is conclusive, definite, certain, and beyond legitimate controversy (1) that a contract as alleged was entered into between the deceased and the person asserting the contract; (2) that the services contemplated as consideration for such agreement have been actually performed; and (3) that such services were performed in reliance upon the agreement."
At what may be considered undue length, excerpts from the record, showing the testimony of various witnesses relating to the existence of an oral contract between Tonjum *Page 726 and Jennings to convey the property of the former, upon his death, to the latter, are set forth.
Testimony of John H. Ellison:
"Later in November the same year, when I came back from Alaska, in the meantime Mr. Tonjum had been injured, and at that time he stated that Mr. Jennings wanted — or he wanted Mr. Jennings to have everything he had because he absolutely could not get along without him because he was under medical attention, he couldn't wait on himself and he couldn't take care of himself, and he would be unable to do the work on that place, the grubbing of the stumps and the upkeep of the place. Q. Who was present at the time when you returned from Alaska and you discussed it with Tonjum? A. Mr. Jennings was present. . . . Q. Now, what was said at that time? A. At that time Mr. Tonjum told me that if Mr.Jennings would take care of his home, take care of the grounds,and wash his clothes, and take care of the property, and lookafter him while he was sick, that he wanted him to haveeverything that he owned, that he did not want his relatives tohave anything. On the settlement of his father and mother'sestate they got everything, and he did not want them to haveanything. With what they had, he and Mr. Jennings had accumulatedtogether, and for the welfare and the care that Mr. Jennings hadgiven him through the years, he wanted him to have all of hisproperty. He didn't state it once, but many times. . . . Q. Was there anything said by Mr. Jennings at that time in response to the statements by Mr. Tonjum? A. He said that he would lookafter him and take care of him like he had always done in all theyears they had been together. . . .
"Q. What was said at that time? A. At that time I asked Mr.Jennings to go to Canada with me on a government — or on a jobwhere he could make and clear himself a good sum of money, andMr. Tonjum refused and Mr. Jennings refused. He said that he hadgiven an agreement to Mr. Tonjum that he could not leave him, andMr. Tonjum said he could not get along without George Jennings. If he did leave he would not be able to hold down his job because his strength was not such that he could look after his home and hold down the job, and that the home and all that he had was tobe George's in case anything happened to him if he stayed andtook care of him as he had in the past under their formerarrangement. Q. And did you see Mr. Tonjum *Page 727 for any length of time then? A. I was in their home about two days at that time. . . .
"Q. You have mentioned two different times in which Mr. Tonjum had stated what his arrangement was with Mr. Jennings. Did he make statements concerning it at any other time? A. Many times during our acquaintance. Q. And what was the general substance of those statements? A. For the care and the work that Mr. Jenningsdid in taking care of his home and taking care of Mr. Tonjum overthose period of years, in case of Mr. Tonjum's death, Mr.Jennings was to have everything, the home and everything that Mr.Tonjum had, for his services. Q. Were you at the home enough to know how Mr. Jennings performed those services for Mr. Tonjum? A. Yes, sir. MR. McDONALD: I object to that. I think it is a leading question. You asked him for a conclusion. MR. GERE: Read the question. (Question read.) You may answer. THE COURT: Objection overruled. A. Yes. Q. How did he perform those services for Mr. Tonjum? A. The laundry was done under a handicap. He had no washing machine, just a small laundry tub, no built-in tub or no features whatever; only the very hardest, crudest way of doing laundry, that part of it. The home that he lived in had no bath. Mr. Tonjum had to be given a bath in an ordinary laundry tub. And part of the time water had to be heated on the stove, until they installed a hot-water tank. Q. Did Mr. Jennings do the work around the place? A. He did. He washed all clothes, washed all dishes. He did all the cooking. Mr. Tonjum could not cook. He did all the gardening. He took care of and raised chickens, sold eggs and sold chickens. The money from that went into the welfare of the home and for their food." (Italics mine.)
Testimony of George Cecil Vaughn:
"THE COURT: If he can't remember the exact words, he can state the substance. A. The words he said was, `If Mr. Jennings cooksfor me, takes care of me, does my housework and my washing andbathes me, when I die he will receive everything.' Q. Did he talk more than once in regard to it? A. Yes, sir. Q. Was Mr. Jennings present at any time? A. Yes, sir. Q. Where did the conversation take place? A. That conversation took place in my house, and took place in their house when I was over there." (Italics mine.)
Testimony of Jessie Marie Vaughn:
"MR. GERE: In regard to the conversation between you *Page 728 and Mr. Tonjum, in regard to Mr. Jennings? A. He was so sick there for a time he used to think he was going to go. He used tosay if he did, for all the work that George had done for him andeverything, he wanted him to have everything. Q. Do you know about when that was the first you heard him say that? A. I would say it was around about the first of the year of 1936. Q. That was right after his injury? A. Right after he was sick." (Italics mine.)
Testimony of Thomas Morris Wilson:
"Q. Was there anything said about how long George was to work for him and what he was to receive for the work? A. Shortlyafter he was hurt he really doubted he was going to live and hewanted George to take care of him at all times and if anythinghappened to him everything he had was George's anyway so itdidn't make any difference. Q. Do you know what his injury consisted of? A. Yes. He was kicked several times in that particular accident at the hospital, in front and side and everything before he could get on his feet and protect himself. Q. What was the effect upon his general health? A. He went down to nothing in a very short while." (Italics mine.)
Testimony of Glen Elmer Watkins:
"Q. (by Mr. Gere) Did you ever have any conversation with Mr. Tonjum? A. Yes, sir, whenever he was down we always saw him and talked, sometimes for three or four hours. Q. Did you ever have any conversation with him in regard to Mr. Jennings? A. No, not exactly. The closest we came to that was — MR. LIND: That is not responsive. MR. GERE: I think he has a right to explain what he meant. THE COURT: Yes, go ahead. MR. GERE: What were you going to say? A. John was paying on his place and I talked him into paying it all up. He only had a little bit left. He came down one evening and told us that he had received a deed. So we asked him, `where are you keeping it, John?' MR. LIND: That is hearsay. THE COURT: No, an admission against interest. A. (continued) John says, `I have a tin box that I keep it in.' My wife says, `you ought to have a safe deposit box,' she says, `my husband and I have one that we keep our papers in and a will in.' John says, `What, you got a will?' and we told him and we even made out a will — well, he says, `I never made out one,' or words to that effect. He says, `One thing I don't want my folks to have any of my property.' Well, I says to him, `You better make out a will then, John, or if you don't they will probably *Page 729 get it.' He says, `Well, I don't want them to have it' and hesays, `I guess I will have to make out a will then,' he says, `Iwant to leave all my stuff to Jennings' — `George' as he calledhim. And that was about the only conversation we ever had on that part of it." (Italics mine.)
Testimony of Clara Watkins:
"Q. Did you and Mr. Tonjum ever have any conversation relative to Mr. Jennings? A. Only when he told us that he wanted Mr. Jennings to have his estate. Q. When was that? A. Well, it was when he got the deed for his place, and he came down and told us that he had finished paying for his place and he had got the deed. So I asked him if he had got a place to keep his deed. He said he kept it in a tin box underneath his bed. I told him I didn't think that was such a good place, it would be destroyed or lost. I says, `Why don't you get you a safe deposit box to keep your papers? That is what my husband and I have, a safety deposit box to keep our papers in, and we keep our wills in it. And he didn't seem to understand law forms and he says well, just as well go.' And he discussed a will with us and he says, `Well, I will make out a will.' Q. Did he say anything further about it? A. Yes, the last he talked to us he said he was going to make out the will. Q. Did he say to you whom he was going to will it? A.Yes, to George. When he discussed it with us he said he didn'twant his relatives to have anything because he said, `They neverdid anything for me here. He has taken care of me and all of mywork, and he is the one to have my estate.'" (Italics mine.)
Testimony of Jennie Partridge:
"Q. (By the court) What did he say, do you recall it? A. Yes, sir. Q. They were talking about an arrangement. What was it? A. I was talking about the time after he had been down to the Veterans' Bureau. THE COURT: Yes. A. And Mr. Tonjum said, `Well, I guess I'm not much good. I am a pretty sick man.' Q. (By the court) Did he say anything more than that? A. Yes, he did say if I can tell you it. Q. (By the court) Just, `I am not much good; I am a pretty sick man?' A. And he said, `I guess I am not much good.' So then I suggested that why didn't he be hospitalized. Q. (By the court) That he should go to the hospital? A. Yes, they might be able to do something for him. Q. (By the court) Did he answer you about that? A. Yes, sir, he did. Q. (By the court) What did he say? A. He was resting in his bed at that time. Q. (By the court) *Page 730 What did he say next, if anything? A. Yes, he did, sir. I am sorry. So I said `Well, —' he said, `No, I don't want to go toany hospital.' He says, `George is giving me the finest of care.'Q. (By the court) George was giving him the finest of care? A.And he said, `I am satisfied.' Q. (By the court) Was thereanything further? A. And he said, `Well,' he said, `I don't needto worry about it. If anything happens to me,' he says, `I willleave everything to George.'" (Italics mine.)
All of the foregoing witnesses were present in court and under observation of the trial judge except Ellison, who testified by deposition, and whose entire testimony has the ring of sincerity and credibility despite vigorous and extended cross-examination. Summary of the facts by the trial judge in his memorandum opinion is as follows:
"The facts developed at the trial reveal a rather unusual situation. The plaintiff and the deceased were both veterans of the first World War and for about twenty-five years lived together most of the time and particularly since 1927. The plaintiff, a man past middle life, suffered a nervous breakdown in the early 20s and appeared to be an effeminate and somewhat neurotic individual. At least his conduct indicates that he had withdrawn from the battle of life and was content to occupy his time painting pictures and doing gardening and household work. The deceased was employed most of the time in question as an orderly in the City Hospital. The two men first had a rooming house on Cherry Street and lost it during the depression. After that the deceased bought a tract of land known as Lot 3, Block 4, Hallberg's 1/4 acre tracts, 7314 32nd Avenue South, to which they moved in March of 1936. There was a very dilapidated house on this property. The plaintiff cleared the land, fixed up the house, and the parties lived there up to the time of decedent's death on August 14, 1944. His death occurred as the result of being struck by an automobile.
"On the 14th day of October, 1935 the deceased was kicked in the stomach by a patient in the City Hospital, where he was working, which resulted in serious injuries, and from that date until 1942 he was more or less bedridden. The plaintiff cared for him like a mother would a child. During part of the time he lost control of his functions, and the plaintiff nursed him, washing the bedclothes and cooking special diets. Outside of an occasional service *Page 731 on a coroner's jury, the deceased was unable to earn any money.
"In the summer of 1936 the plaintiff received approximately $600 as his soldier's bonus, all of which he put in the place. He grew a vegetable garden, some of the products of which he sold, raised chickens, sold eggs, and did some odd jobs. All of the money of both men seems to have gone into this property and for their support.
"In 1942 the deceased had apparently made some improvement and went to work as a guard in an industrial plant, at which place he met his death as a result of the accident above mentioned.
"I do not believe that any useful purpose would be served by a more detailed statement of the facts in the case."
As stated in the majority opinion, "Each case of the kind now before us must rest upon its own peculiar facts and circumstances." With this rule in mind, it seems fair to suggest that the conduct and relationship of the parties, though not in itself proof of the existence of a contract, lends strong corroboration to the testimony of the witnesses who quoted Mr. Tonjum to the effect that he had entered into an agreement with Mr. Jennings. The two men were close personal friends. They had each seen service in the American army during World War I. They and Ellison had met at an American Legion hall shortly after the end of that war. The friendship of Tonjum and Jennings was intimate and continued close through all of the intervening years to the date of Tonjum's death. During the years of Tonjum's illness and incapacity, Jennings cared for him as only a parent or brother would ordinarily care for another. He lived at the home, he operated the acre tract, he gave personal nursing and diet care to Tonjum through his sickness. When he received his bonus, Jennings expended it all in repairing the home and the tract of land upon which the two lived.
Factually and circumstantially, the record reveals the strongest reasons for Tonjum to make the contract which Jennings claimed he had made and which the witnesses credited Tonjum with stating he had made. That no formal written document was entered into is readily understandable. *Page 732 There is nothing in the record to indicate that these men were of the educated class or that they were versed in legal knowledge.
The fact, as pointed out in the majority opinion, that this court has passed upon thirty-seven cases involving the question of proof of an oral contract to devise property upon death, is strong indication that the average person who enters into such an oral contract is neither a ritualist in adherence to legal form nor a perfectionist in the choice of language used to express the terms of the agreement. It is for this reason that this court, and the courts of most of the other states, recognize the equitable doctrine that oral contracts to make a will or to devise property upon death have standing in the law.
It should likewise be observed that some persons purposely refrain from executing a will to devise their property where conditions of performance, such as care of the sick, maintenance of farm work, and so forth, are a part of the agreement. This is one means of insuring performance of the condition.
Granted the rule, stated by the majority, that cases of this kind are not favored when the promise rests in parol. Granted likewise the rule, stated by the majority, that the burden of proof is upon the proponent of the contract to prove it by evidence that is conclusive, definite, certain, and beyond all legitimate controversy, as was stated in Resor v. Schaefer,193 Wn. 91, 74 P.2d 917. It should be noted that further perusal of the opinion in that case indicates that it presents a striking parallel to the situation presented in the instant case.
"The contract made by Mr. Draper was not, under the existing circumstances, an unnatural one. He was old and infirm, with not many years, at most, to live. He had no children, nor did he have any relatives close by. He preferred his own home to a life among strangers or in a hospital. But, being almost blind and afflicted with diabetes and Bright's disease, manifestly he was unable to keep up his home or live there unattended. Respondents were his friends and were willing to give him the care and attention that he needed and desired. That they did fully minister *Page 733 to his wants and comforts in full compliance with the alleged agreement, is beyond any question.
"The terms of the contract, as testified to by the single witness, are in no sense vague, indefinite, or uncertain. They express in detail just what respondents were to do and what Mr. Draper was to do in return. If it were conceded that the contract was in fact made, there could be no doubt that it would be enforceable. The only question is whether the one witness told the truth when he testified as he did. On that score, the record before us carries its conviction. The trial judge, in his memorandum opinion, first stated the rule, above quoted, by which he was controlled, and then expressed himself to the effect that he believed that the witness was telling the truth. The trial court was, therefore, fully convinced that the evidence met the requirements of the rule, and we find no good reason for differing from that conclusion." (Italics mine.)
In the present case, in finding for respondent, the trial judge used the following language:
"It is only necessary that the plaintiff in this kind of a case establish his case with reasonable certainty."
On its face, this is a departure from the rule, as defined in our later cases, that an oral promise to make a will or an oral contract to devise or bequeath property must be established by evidence that is conclusive, definite, certain and beyond all legitimate controversy. Blodgett v. Lowe, 24 Wn.2d 931,167 P.2d 997; Resor v. Schaefer, supra. Concededly, this language of the trial court is loosely expressed, but a careful reading of the testimony of the several witnesses, pertinent excerpts from which have been set forth herein, renders it clear that the requirements of the correct rule are fully met, and that the trial judge had the true rule in mind when he reached a decision which upheld the establishment of the oral contract to devise. The trial judge was convinced, from that testimony and from the circumstances constituting the background and relationship of the parties, Tonjum and Jennings, that a contract did exist, and the witnesses' testimony going directly to the statements of Tonjum relating to the agreement, the testimony showing the performance by Jennings of the conditions constituting his part of the contract, *Page 734 and the testimony showing the intimate relationship over a period of years of the two parties, together with the circumstances constituting the background of their lives, certainly measures up to the requirement, expressed in the Resor case, supra, that such evidence must be conclusive, definite, certain, and beyond all legitimate controversy. Our duty is to measure the evidence by the true rule as it has been laid down by this court, not to seek technical error in the somewhat inapt language of the trial court.
In his memorandum opinion, the trial judge refers to Velikanjev. Dickman, 98 Wn. 584, 168 P. 465; In re Krause's Estate,173 Wn. 1, 21 P.2d 268; In re Fisher's Estate, 196 Wn. 41,81 P.2d 836; Luther v. National Bank of Commerce, 2 Wn.2d 470, 98 P.2d 667.
In the Velikanje case, supra, Judge Ellis said:
"The evidence of the existence of the exact agreement claimed was as clear and convincing as could ever be adduced where, as here, the lips of both parties are sealed, those of the one by death, of the other by the law. The evidence was certain as to the parties, the property and the services to be rendered, but was not so certain as to how the title was to pass. This last is not an essential. A promise to leave property in return for support or services need not specify how title is to pass. It is sufficient if an agreement is shown that the promisee shall receive the property, or that it shall be left to him at the decease of the promisor."
In Luther v. National Bank of Commerce, supra, Judge Steinert stated:
"It is well settled in this state that oral contracts to devise and bequeath real and personal property are enforceable if they are established by evidence that is conclusive, definite, and beyond all legitimate controversy, and if there has been sufficient performance to remove the bar of the statute of frauds. See In re Fisher's Estate, 196 Wn. 41,81 P.2d 836, and Osterhout v. Peterson, 198 Wn. 166, 87 P.2d 987, where the cases are assembled and discussed."
It can only be assumed that the trial judge, despite the looseness of his reference to the rule, was wholly familiar with its requirements, as expressed by this court. In any *Page 735 event, as stated, the evidence measures up to the strict requirements of the rule. It is clear, cogent, and convincing. It is beyond controversy. The witnesses who so testified, with one exception, were before the trial court, and their credibility, manner, and demeanor while testifying were for the trial judge to appraise. The deposition testimony of the witness Ellison was undoubtedly considered by the trial court in the light of the testimony of the six witnesses who did appear in court and who each corroborated the testimony of Ellison with reference to the statements of the deceased, Tonjum. It all dovetails. There is no conflict. The trial court was, therefore, in an excellent position to pass upon the credibility of the several witnesses, including Ellison, all of whom quoted Mr. Tonjum as stating that he had made an agreement with Mr. Jennings to leave all of his property to the latter in consideration of the care and nursing which he was performing for Mr. Tonjum, and the care, work, and maintenance which he was devoting to the acre tract upon which they made their home. At least, the trial judge could accept and believe with better grace the testimony of the witnesses, whom he had observed, than we, who have never seen them, can reject it. He believed them and declared the contract proven by their testimony, and likewise declared its terms to have been performed by the respondent Jennings.
A careful reading of the record, and our prior decisions upon the point, disclose no reason for disturbing his finding. I am, therefore, of the opinion that the judgment of the trial court should be affirmed.
MALLERY, J., concurs with CONNELLY, J. *Page 736