Day

Eva Greene Day brought this action on December 27, 1957, to impress a constructive trust upon one- seventh of the residual estate of her stepmother, Mary Greene, claiming that Mary had entered into an oral contract with Colonel Greene (Mary’s husband and Eva’s father) by which Mary agreed to leave her estate equally to Eva and the six children of Mary and Colonel Greene. The defendants include, among others, Mary’s six children and the executors of her estate. Judgment was entered in favor of plaintiff, and all defendants, except one of the children, have appealed.

It is contended that the trial court’s finding that there was an agreement to make a will as alleged is not supported by the evidence, that the alleged agreement is unenforceable by reason of the statute of frauds, that the action is barred by the statute of limitations, and that the evidence establishes as a matter of law the defense of accord and satisfaction.

Eva’s parents, Colonel Greene and Ella Roberts Moson Greene, were married in Arizona in 1884. The only other child of that marriage died at an early age. Ella had two children by a prior marriage, Virginia and Frank Moson. Eva was born January 6, 1890. At the…