Estate of Terry

Filed 6/21/06 Estate of Terry CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

The heirs of and claimants to the estate of Ida M. Terry reached a written settlement agreement that, among other things, provided that Cassandra M. Coleman could purchase the real property in the estate for $207,000. Coleman was to pay $107,000 to the estate; the estate was to carry a note secured by a second deed of trust against the property for the balance. Coleman had no payment schedule and did not have to pay interest on the loan. Shortly after the court approved the settlement agreement, Coleman created a trust and transferred her rights under the settlement agreement into the trust. Coleman's daughter was to receive the assets in the trust upon the death of Coleman, and Coleman's mother, Mavina Chess, was the successor trustee.

Two months after the settlement agreement was signed, Coleman died from breast cancer. Robbi Stovall, the administrator of Terry's estate, refused performance on the sale of the real property to Chess, Coleman's successor-in-interest. Chess petitioned the trial court to enforce the settlement and sued for specific performance on a breach of contract claim. The trial court ruled that Stovall was excused from performing based on Coleman's failure to inform the family members during the formation of the contract that she was suffering from breast cancer. The court also found that the settlement agreement was personal to Coleman and could not be assigned to her daughter. The court also found that the defense of frustration of purpose excused Stovall's performance.

Chess appealed. We affirm the judgment on the basis of the trial court's finding of fraud in the inducement during the formation of the settlement agreement.

BACKGROUND

Terry died on June 30, 1998. Terry's estate consisted of $200,000 in personal property and her house in Berkeley valued then at $200,000. At the time of her death, Terry had a living nephew, a living niece, and four great-nieces and nephews of a pre-deceased nephew. Terry had left unsigned copies of several different wills and one copy of a signed will. However, no one was able to find an original signed will.

Initially, Stovall and Coleman offered for probate an unsigned copy of Terry's will, but they withdrew the petition on February 19, 1999. Both Stovall and Coleman were great-nieces of Terry. Stovall's father, Terry's nephew, had predeceased Terry; Coleman's father, also Terry's nephew, was alive at the time of Terry's death.

Stovall filed a petition seeking an order that Terry had died intestate and requesting that she be appointed the administrator of Terry's estate. The court granted this order on May 10, 1999.

In the fall of 1999, the family reached a settlement agreement regarding the assets in Terry's estate. The settlement stated that the parties were entering into this agreement because there had been various conflicting claims regarding the distribution of the assets of Terry's estate â€