Opinion
3 Div. 304.
January 24, 1918.
Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.
Ball Beckwith, of Montgomery, for appellant. Hill, Hill, Whiting Stern, of Montgomery, for appellee.
It is thoroughly well settled that any one who is sui juris "may, for a valuable consideration, renounce the absolute power to dispose of his estate at pleasure, and bind himself by contract to dispose of his property by will to a particular person, and that such contract may be enforced in the courts after his decease, either by an action for its breach against the personal representative, or, in a proper case, by bill in the nature of specific performance against his heirs, devisees, or personal representative." Bolman v. Overall, Ex'r, 80 Ala. 451, 455, 2 So. 624, 60 Am. Rep. 107; Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46; 40 Cyc. 1063.
It is settled also in this state that an oral agreement to make a will devising real estate, unaccompanied by payment of some valuable consideration and delivery of possession of the land to be devised, is void under the express provisions of our statute of frauds (Code, § 4289). Manning v. Pippen, 95 Ala. 537, 11 So. 56; Allen v. Bromberg, 163 Ala. 620, 50 So. 884.
In the present case the bill of complaint shows on its face that Cook's promise to devise his lands to complainant was not in writing; and, no facts being alleged to bring the agreement within the excepting clause of the statute, the demurrer on this ground was properly sustained. Other special grounds of demurrer are manifestly without merit and need not be considered.
The bill can be amended to meet this objection by eliminating all allegations and prayers relating to the real estate of the testator, Cook, or by showing a written contract in compliance with the statute of frauds. As the bill contains equity, and is amendable, we think the trial court erred in decreeing the dismissal of the bill without allowing an opportunity for amendment, and the decree will now be modified so as to allow complainant to do so within 30 days from this date.
On the general equity of the bill, it is contended by counsel for appellees that the contract here exhibited cannot, in any case, be enforced against Cook's widow, the respondent, Marie Boyd Cook. If she married J. H. Cook without knowledge of his agreement to devise and bequeath his property to complainant, it would seem, on the plainest principles of justice, that such an agreement would not be enforced against her, at least not without important limitations. Owens v. McNally, Adm'x, 113 Cal. 444, 45 P. 710, 33 L.R.A. 369. And, with respect to so much of the estate as is given to her by statute, including here all of the personalty (Code, § 3763), it seems perfectly clear that it cannot be subject to complainant's contract, as against the widow.
The bill, however, merely alleges that the property was given by will to the two respondents, jointly, as we interpret it. The bill is therefore not wanting in equity with respect to the subjection of that part of the personal estate bequeathed to Watts, if any, and relinquished by the widow by her acceptance of the provision made for her by the will.
If all the personalty was given to the widow, that fact can be made to appear by answer, and complainant's prayers for relief would be denied.
The decree sustaining the demurrer will be affirmed, but the decree dismissing the bill will be conditioned upon complainant's failure to appropriately amend the bill within 30 days.
Affirmed in part, and modified in part.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.