(dissenting) — I agree with the majority that there is an inescapable inference that the Ferrises accepted the offer made by the Witzigs in their letters, and that the trial court erred in its conclusion that no contract to devise ever existed or that the contract was too indefinite for specific performance.
The majority, proceeding upon a theory suggested by neither party and never considered by the trial court, concludes that, although there had been a contract to devise, the Ferrises had breached it or both parties to it, Anna Witzig and the Ferrises, had abandoned it. I cannot agree that the seven items, events, or circumstances which the majority says establish an abandonment of the contract have any such effect.
The first, and apparently regarded as the most important, is the fact that on June 3, 1949, Anna Witzig gave the Fer-rises a deed to her home. The witness Alford B. Riggs, who took Anna Witzig’s acknowledgment to that deed, testified that she said at that time that she was
“. . . giving them [the Ferrises] everything anyway and so this was — she was giving this to them at this time so they could, if necessary, get some money to make improvements.”
To me, that is a logical explanation — a definite modification for a definite purpose; and, far from evidencing an abandonment, it is in its essence a reaffirmance of the contract.
The second is that the Ferrises never requested Anna Witzig to make a will. It may be that they assumed she had already done so, as we are agreed that she had contracted so to do. If this circumstance has any wéight, it is minimal.
The third is that, subsequent to delivery of the deed, Mrs. Witzig paid the Ferrises for certain services — Mr. Ferris for redecorating her room, and Mrs. Ferris for giving her some hypodermic injections. These were not services which the Ferrises had contracted to perform, and, although we might think more highly of them had they performed the services gratuitously, their failure to do so was not a breach or abandonment of their contract.
*407The fourth is that during the lifetime of Anna Witzig the Ferrises made no inquiry concerning and exercised no dominion over any of her property except such as had been conveyed to them; in short, because they were not “nosey” and presumptuous in using what was Anna Witzig’s as long as she lived, they are presumed to have abandoned the contract. This is a definite non sequitur.
The fifth and sixth, the gift of five thousand dollars by Anna Witzig to the Blumhardts and the making of a will by Mrs. Witzig that was inconsistent with her contract, do show that she had abandoned the contract, but they certainly are not evidence of abandonment by the Ferrises. They are but part of the overwhelming evidence that Anna Witzig had reached a fixed conclusion that the Ferrises had been adequately compensated and would get no more of her property.
The seventh is that the Ferrises did not mention a contract when the will was read, but said something like “ ‘Well, that counts us out.’ ” Mrs. Blumhardt testified that the Fer-rises appeared to be disappointed, and, what is more important, she conceded that Anna Witzig had known they would he disappointed. I do not believe that a layman’s failure to assert his legal rights in such a case, before the funeral and before he has had an opportunity to consult counsel and find out what those rights are, proves very much of anything except that he did not know what to do under the circumstances.
Once the contract was established, the burden of proving that it was abandoned by the parties was on the respondents, and in my opinion they proved only that Mrs. Witzig had abandqned.it, which is conceded and is the reason for the lawsuit.
The breach of the contract by the Ferrises relied upon by the majority is predicated upon the fact that Mrs. Ferris attended business school beginning in December, 1951, and accepted employment outside the home in September, 1952, some seven months before Anna Witzig died; therefore, the *408majority states, Mrs. Ferris ceased to furnish companionship and care. ■ •
The majority is trying to conjure up some obligation to stay with Mrs. Witzig all the time, and to take care of her hour by hour. The evidence clearly supports the trial court’s finding:
“That Anna C. Witzig was an unusually active and vivacious woman until the time of her last illness which was of less than two weeks duration. She was active in both the Eastern Star and Daughters of the Nile, participating in both the meetings and the social functions of those organizations; that she seldom, if ever, missed a meeting or social function of these organizations except when she was away from her home; that she enjoyed traveling and did travel, not only in and about Seattle, but also frequently in and about the Pacific Northwest, and into Canada and California; that her travels and visiting kept her away from her home 'more than one-third of each year; . . . ”
Anna Witzig did not want to be waited on. There is no reference to one single instance of any inconvenience to her resulting from Mrs. Ferris’s employment. From the outset of the relationship she (to quote another finding by the trial court)
“. . . reserved one bedroom in her home for her exclusive use, and took complete care of this room herself. That the plaintiffs [appellants Ferris] and their daughter had the use of the rest of the seven room home and were free to entertain and use this home as they would their own. That Anna C. Witzig furnished her own food, did her own cooking separately from the plaintiffs’ family, and washed her own dishes. That Anna C. Witzig did at least a portion of her own laundry. That these arrangements continued until the death of the late Anna C. Witzig.”
Companionship does not mean constant association. Indeed, the trial court found that at all times while the Fer-rises and Anna Witzig were living together the Ferrises “were free to carry on their normal lives” and
“. . . to come and go as they saw fit and were free to take week-end excursions or vacations without giving any special consideration or making special provisions for the late Anna C. Witzig. In December of 1951, Evelyn B. Fer*409ris enrolled in a business school and attended said school regularly. That in September of 1952, Evelyn B. Ferris took a full time job and no special arrangements were required for the care of the late Anna C, Witzig.”
No special arrangements for her care were required, because the “unusually active and vivacious” Anna C. Witzig took care of herself and had done so from the very beginning of the relationship with the Ferrises. It is significant that the trial court attached no importance to that fact, because, in the holding that the Ferrises were entitled to $225 a month for their services, the court made no distinction as to the value of Mrs. Ferris’ services before and after she accepted employment outside the home.
The fact that Mrs. Ferris endeavored to help make ends meet by taking employment outside the home does not establish a breach of the contract, nor is it additional evidence of abandonment of the contract.
The majority arrives at a conclusion of abandonment and breach of contract by the Ferrises on what seems to me very flimsy and inconclusive evidence. I am unable to draw such conclusions from any findings of fact made by the trial court. Unless the majority is prepared to say that reasonable minds cannot differ on the issues of abandonment and breach of contract, we should remand the case, advising that the trial court erred in finding that no contract was established but that the issues of breach and abandonment by the Fer-rises are yet to be determined. If there was a breach or abandonment by the Ferrises, a judgment of dismissal as to the first cause of action should be entered; if there was no such breach or abandonment, then the Ferrises would prevail on the principal issue, their right to Anna Witzig’s estate. In that event the further issue of the validity of the gift of five thousand dollars by Anna Witzig to the Blumhardts must be decided.
That seems to me the proper disposition of the appeal if the issues of abandonment and breach are to be considered; but my own views are that the Ferrises proved a contract and performance by themselves under that contract, and *410that they are entitled to be placed in the position they would have been in if Anna Witzig had performed the contract. That would lead to an examination of the issue of the validity of Anna Witzig’s gift to the Blumhardts, an issue which neither the trial court nor the majority decided, the former because it held that there was no contract, the latter because it holds that the contract Was abandoned or breached.
The facts on this issue, as found by the trial court, are that Anna Witzig became afraid that she might not always have a place to live with the Ferrises, and came to believe that if she moved from the home she had conveyed to them she would not be allowed to return. (This deals with a state of mind, not with an actually existing state of facts.) The court further found:
“That prior to August, 1951, the Blumhardts were living in a one bedroom home in Longview, Washington. That Anna C. Witzig enjoyed the company of the Blumhardts, referred to them as her children, and felt that she was welcome in their home. That Anna C. Witzig wanted the Blumhardts to purchase a larger home so that she would have a room of her own in their home and a place to live should she be unable to continue to reside with the plaintiffs; that Anna C. Witzig looked at various houses in Longview, Washington which were for sale. At, on or about August 6,1951, Anna C. Witzig transferred $5,000.00 to the Blumhardts for the purpose of enabling them to purchase a home in Longview, Washington. That a home was purchased by the Blumhardts with the aid of this $5,000.00 and that this home was the choice of Anna C. Witzig. That Anna C. Witzig frequently went to this home and stayed there in what she referred to as ‘her room.’ That these visits to the Blumhardts were often of several weeks duration and that she spent approximately one-third of each year with the Blumhardts.”
The Blumhardts contend that, if there was a valid contract, the Ferrises were to receive only that property which remained at the death of the Witzigs (or, as Anna Witzig put it, “whoever is with us when we pass on gets what we have”); hence Anna Witzig could do what she wished with her money during her Iffetime. They cite no authority for *411that statement and I find none. The courts say that, where the contract to will property covers only such property as the promisor may leave at his death, he is not restricted in the use, control, and disposition of his property during his lifetime, and transfers or conveyances before his death are valid where there is no intent to defraud. Hatcher v. Sawyer (1952), 243 Iowa 858, 52 N. W. (2d) 490; 68 C. J. 586, Wills, § 204.
Dealing specifically with the question of gifts in such a situation, the rule is that a contract to make a will does not prevent the making of gifts which are reasonable, bona fide, and not testamentary in effect, and which are not made to circumvent the contract. Wagar v. Marshburn (1941), 241 Ala. 73, 1 So. (2d) 303; Bergmann v. Foreman State Trust & Sav. Bank (1934), 273 Ill. App. 408; Hatcher v. Sawyer, supra; Skinner v. Rasche (1915), 165 Ky. 108, 176 S. W. 942; Farmers Nat. Bank v. Young (1944), 297 Ky. 95, 179 S. W. (2d) 229; Eaton v. Eaton (1919), 233 Mass. 351, 124 N. E. 37, 5 A. L. R. 1426; Dickinson v. Seaman (1908), 193 N. Y. 18, 85 N. E. 818, 20 L. R. A. (N. S.) 1154; Bruce v. Moon (1900), 57 S. C. 60, 35 S. E. 415; Turner v. Theiss (1946), 129 W. Va. 23, 38 S. E. (2d) 369; 57 Am. Jur. 156, Wills, § 176; 68 C. J. 587, Wills, § 204. See, also, Swingley v. Daniels (1923), 123 Wash. 409, 212 Pac. 729; Sample v. Butler University (1937), 211 Ind. 122, 4 N. E. (2d) 545, 5 N. E. (2d) 888, 108 A. L. R. 857.
The annotation on “Gift as a fraud on contract to will property,” 20 L. R. A. (N. S.) 1154, points out that the case of Dickinson v. Seaman, supra, was the first in which the question involved was discussed from the viewpoint of the reasonableness of the gift in view of the entire property possessed by the promisor. The annotator points out that, prior to that time, the
“. . . decisions involving the validity of a gift made by a person under contract or covenant to will all his property to a certain person are practically uniform in holding that such an agreement does not prevent the making of absolute bona fide gifts during the lifetime of the contractor or covenantor. However, the gift must be absolute, and not *412in effect testamentary, and must not he made for the express purpose of defeating the contract or covenant.” (Italics mine.)
From the application of these principles of law to the trial court’s findings of fact on this issue, it might well be concluded that Anna Witzig thought the gift of five thousand dollars insured her a place to stay in the event of trouble with the Ferrises. However, as I have heretofore indicated, much additional evidence was introduced' by the Blumhardts themselves, to the effect that Anna Witzig had determined, prior to making the gift, that the Ferrises were to get no more of her property and she was going to give it all to the Blumhardts. Without marshaling all of that evidence, and conceding thé accuracy of the trial court’s findings on this issue, I am convinced that the predominant evidence is that Anna Witzig’s motive was not only to help the Blumhardts but to defeat and circumvent her contract with the Ferrises, and that, consequently, the five-thousand-dollar gift should be set aside and the Blumhardts directed to return the five thousand dollars to the estate of Anna C. Witzig, deceased.
My basic disagreement with the majority’s holdings is on the issues of abandonment and breach of contract. Procedurally, I question whether we should decide the case on issues not presented to, or passed upon by, the trial court.
Donworth and Weaver, JJ., concur with’Hnx, J.April 24, 1956. Petition for rehearing denied.