In re Estate of Wickersham (153 Cal. 603, 1908)

SHAW, J.

This is an appeal from a judgment declaring the appellants estopped from asserting any interest in the estate of the deceased, adjudging that they are not interested in said estate, and dismissing their petitions to revoke the probate of the will of said deceased.

Lydia C. Wickersham died on February 10, 1900, leaving as next of kin four children,—namely, Frank P. Wickersham, Frederick A. Wickersham, Lizzie C. Wickersham, and May L. Berg'evin. On March'27, 1900, the will of said deceased was duly admitted to probate by the superior court. Frank P. Wickersham died on March 14, 1900, leaving surviving as his sole heirs at law the appellants Cora L. Wickersham, his widow, and I. G. Wickersham, his minor son. Thereafter, petitions of the appellants to revoke said probate were filed, and the respondents filed answers thereto. The questions for decision upon this appeal arise out of the allegations of the paragraphs numbered one in the answers to the respective petitions of the appellants to revoke such probate, and upon the judgment of the court rendered upon the trial of the issues presented by said paragraphs.

The purport of the part of the answers in question is that the appellants are not persons interested in the estate of the deceased Lydia C. Wickersham, because of the fact alleged, that Frank P. Wickersham, prior to the death of his mother, executed to his mother, Lydia C. Wickersham and to his brother and sisters, the respondents herein, a contract whereby he conveyed to his said brother and sisters all his prospective right, title, interest, and estate as, heir, legatee, or devisee of Lydia C. Wickersham in and to all of the property of which she might die possessed, and agreed with all of said parties that he would not thereafter assert any right, title, or interest as heir or otherwise of the said Lydia C. Wiekersham to the estate owned or possessed by her at her death, nor in any manner or to any extent question, dispute, or contest any disposition of her property made by her deed, contract, or will. The due execution of this contract was admitted. The court found that it was valid and binding upon the appellants, an,d thereupon it adjudged that they were not persons interested in the estate of Lydia C. Wiekersham, deceased, and entered the judgment above mentioned, dismissing their petitions. \

The appellants demurred to this paragraph of the answer on the ground that it did not state facts sufficient to constitute a defense or to show that the appellants are not persons interested in said estate. The principal defect urged to the sufficiency of this part of the answer is that it does not appear therefrom that the consideration paid to said Frank P. Wickersham for the contract set forth therein was adequate. Their contention is that a contract of this kind, whereby an heir conveys his prospective interest in the estate of his ancestor, or agrees not to contest or question the disposition thereof made by the will, is invalid unless it is founded upon a full and adequate consideration, and is entered into fairly and freely by the party against whom it is asserted, and that a person who seeks to enforce such a contract against an heir or his successors, or to estop such heir or successors from claiming their share of the estate, or from contesting a disposition by will, must allege and prove that the consideration was full and adequate, and that the contract was fairly obtained. It must be conceded that this is the general rule applicable to ordinary cases where the heir conveys his expectancy to a third person, or agrees with the other heirs before the death of the ancestor not to contest a testamentary disposition. (2 Pomeroy’s Equity, sec. 953 ; 5 Am. & Eng. Ency. of Law, p. 769.) The leading case on the subject in this state is Estate of Garcelon, 104 Cal. 570, [43 Am. St. Rep. 134, 38 Pac. 414]. In that case the particular point of the inadequacy of the consideration was not raised, but in the discussion the necessity of an adequate consideration is fully recognized. We think, however, that upon a fair construction of the portion of the answer relating to this subject it will be found sufficient in that respect. It is often said that ■& pleading is to be construed most strongly against the pleader. This is the usual expression