Opinion
14763.
FEBRUARY 10, 1944.
Levy and claim. Before Judge Porter. Floyd superior court. October 11, 1943.
James Maddox, for plaintiff in error. Alec Harris, contra.
1. In an action in equity for specific performance of an alleged parol contract, the agreement must be proved so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the contract.
2. The evidence was not sufficient to prove, with the degree of certainty required by the law, the alleged parol agreement by the administrator's intestate, that if the claimant and her husband would render described services to the intestate and her husband while in life, she would execute a will leaving all of her property to the claimant. Accordingly, the court did not err in granting a nonsuit.
No. 14763. FEBRUARY 10, 1944.
On two occasions certain realty and personal property were advertised for sale by the administrator of the estate of Mrs. Mollie O'Bryant Grace, and in each instance Mrs. Bessie Salmon filed a claim to the property. In aid of her claim she filed equitable petitions to compel specific performance of an alleged parol contract with Mrs. Grace to execute a will leaving to the claimant all of her property, in consideration of specified services by the claimant, which were alleged to have been fully performed. On the first trial the jury found in favor of the claimant. On review this court held that the evidence was insufficient to establish the alleged contract with that certainty required by the law, and reversed the judgment of the trial court overruling the administrator's motion for new trial. See McCrary v. Salmon, 192 Ga. 313 ( 15 S.E.2d 442). On the second trial a nonsuit was granted. This court, in Salmon v. McCrary, 194 Ga. 413 ( 21 S.E.2d 857), affirmed that judgment.
After the rendition of the last-mentioned judgment by this court, the administrator again advertised the property for sale. Mrs. Salmon interposed a claim, and in aid thereof filed an equitable petition alleging an oral contract between her and Mrs. Grace, as follows: "The claimant contracted and agreed with the deceased and Mr. Grace at said time that she and her husband, Fred Salmon, would assume the payment of the insurance premiums on said policy of insurance and pay the same until the death of Mr. Grace, and that upon his death petitioner was to be paid the sum of $1000 out of the proceeds of said insurance and the other $2000 to be paid to Mrs. Grace, if in life, otherwise to her estate, and at the same time it was contracted and agreed between the parties that the said Fred Salmon and petitioner were to look after the said deceased and her husband, nurse and help nurse them, and each of them, as long as they might live, and to help and assist them, and each of them, in the transaction of their business affairs and the conduct of their home, and that the deceased was to execute a will giving to petitioner all of her property, that is, of the deceased, Mr. Grace having no property, both real and personal, at the death of the deceased, unless deceased should die before her husband, in which event petitioner was to have the same after his death." It was alleged that the premiums were paid, and that after the death of Mr. Grace $1000 of the proceeds of the policy was paid to Mrs. Salmon and $2000 to Mrs. Grace; that the services agreed upon were fully performed; and that Mrs. Grace failed to make a will and died intestate.
Fred Salmon, husband of the claimant, testified: "Both Mr. and Mrs. Grace approached me and my wife in regard to this policy with the Royal Arcanum. The transaction between us was that we were to send this policy back to headquarters and have it changed and we did, and they changed the policy and made $1000 of it to my wife and $2000 of it to the estate, and I was to pay these premiums on the policy as long as he lived. I did that. I paid them. He died in 1930 and left no property except his insurance. The real property was all Mrs. Grace's. At the time my wife got the $1000, Mrs. Grace got $2000. At the same time that agreement was made, there was also an agreement or contract made between my wife and Mrs. Grace. It was agreed that I was to pay this insurance premium as long as he lived and that was carried through, and we were to look after them and see that they were looked after as long as they lived, and then we were to have this property, both real and personal, at their death. Something was said about nursing them. We were to help them from a physical standpoint, do anything that a son or daughter would do for them in their old age. Something was said about their business affairs. That was the agreement, that we were to do these things for them, anything they needed done, to include looking after their business affairs. Mrs. Salmon looked after their home all the time, and she was to do that under the agreement. That was the contract, anything that a son or daughter would do, or a sister, or any one in the family would do for her own mother. Mrs. Salmon did that as long as they lived. Mrs. Grace died in 1935. In consideration of that help and assistance on the part of my wife, Mrs. Grace was to execute a will and leave all that she had, everything personal and real, to my wife when she died. Mr. Grace died in 1930 and Mrs. Grace in 1935."
There was testimony by other witnesses as to the services rendered by the claimant and her husband. One of these, Mrs. Ivena Holsomback, testified, among other things: "She [Mrs. Grace] said she had already given what she had to Bessie and Fred [Mr. and Mrs. Salmon] because they had been so nice to look after her. . . I saw some diamond rings she had. I tried them on. She said she had given Bessie [Mrs. Salmon] the largest stone and Mrs. Henderson the second one, and I don't know about the third one."
Mrs. Dan Stevens testified as to services rendered by the claimant and her husband, and that Mrs. Grace told her "that when she left here she wanted Mr. and Mrs. Salmon to have what she had. She did say something to me about a contract or agreement she had with them."
After the introduction of evidence for the claimant the court, on motion of counsel for the administrator, granted a nonsuit, and the exception here is to that judgment, the plaintiff in error contending that there was sufficient evidence to require submission of the issues to a jury.
While counsel for the defendant in error argues that the evidence is substantially the same as that on the last trial of the case, the issue is not to be determined by such a consideration, but by deciding whether or not there was evidence which would support the contract as finally alleged, and whether or not the jury would be authorized to find that there was full performance by the claimant and her husband and a breach on the part of Mrs. Grace.
"Contracts under which one of the contracting parties agrees with the other, for a valuable consideration, that he will make a will giving to the other property, either real or personal, have been sustained and enforced in America from the earliest times, and the validity of such contracts seems now to be beyond all doubt. . . Where a party in whose favor the will is to be made has performed his part of the contract and the other party dies without making the will, or leaves a will in which there is no provision which can be construed as a compliance with the agreement, or leaves a will which in its terms complies with the contract but which is invalid for some reason, the disappointed party may apply to a court of equity for a specific performance of the contract, if it was one of such a nature that a court of equity could require specific performance." Banks v. Howard, 117 Ga. 94, 96 ( 43 S.E. 438), and cit. While an oral contract to devise lands calls within the statute of frauds, nevertheless where the party in whose favor the will is to be made has performed his part of the contract, and the other party dies without performing, the disappointed party may seek specific performance of the contract in a court of equity if it is one of such a nature as to justify the court in granting that relief. Gordon v. Spellman, 145 Ga. 682 ( 89 S.E. 749, Ann. Cas. 1918A, 852). As far back as Printup v. Mitchell, 17 Ga. 558 (16) (63 Am. D. 258), however, it was ruled that, "A parol contract for land, like the reformation of a deed by parol proof, should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement." In the opinion it was said: "It is a serious matter to substitute a parol sale of real estate for a deed." This rule has not been relaxed, but has been inflexibly applied in many decisions of this court in reviewing cases where specific performance of an alleged parol contract was sought to be enforced. See, among others, Dwight v. Jones, 115 Ga. 744 ( 42 S.E. 48); Redman v. Mays, 129 Ga. 435 ( 59 S.E. 212); Gordon v. Spellman, 148 Ga. 394 (2) ( 96 S.E. 1006); Lloyd v. Redford, 148 Ga. 575 ( 97 S.E. 523); Allen v. Allen, 151 Ga. 278 (5) ( 106 S.E. 81); Hattaway v. Dickens, 163 Ga. 755 ( 137 S.E. 57); Ellis v. Reagan, 172 Ga. 181 ( 157 S.E. 478); Wall v. Wood, 174 Ga. 508 ( 163 S.E. 153); Pattillo v. Mangum, 176 Ga. 51 ( 166 S.E. 641); Brogdon v. Hogan, 191 Ga. 647, 654 ( 13 S.E.2d 666). Proving the alleged contract by a preponderance of the evidence is not sufficient to satisfy the rigid test. It must be proved beyond a reasonable doubt, a burden quite as onerous as that imposed in criminal cases. Scott v. Williams, 167 Ga. 386 ( 145 S.E. 651); McDermott v. Lankenau, 170 Ga. 585 ( 154 S.E. 149). While the rule may be said to be a strict or harsh one, it is rightly so. Let it be remembered that one who seeks specific performance of an alleged oral contract as against the estate of a decedent is, in effect, asking that property which would otherwise descend by inheritance, as fixed by the law, or by will as determined by the owner, be decreed to be in him. The law quite properly favors the disposition of property through the channels it has prescribed, and requires strict proof to divert it from those channels. When one dies, and is thus no longer able to manage his own estate, the law undertakes to stand as guardian for it and to see that it is legally disposed of, either to his heirs at law or to his legatees under a will as the case requires. In such confidence we live and die, protected in the safeguards established by the law. In Lansdale v. Lansdale, 144 Ga. 571, 573 ( 87 S.E. 782), this court quoted approvingly from a Pennsylvania case as follows: "Claims of this nature against dead men's estates, resting entirely in parol. based largely upon loose declarations, presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done. We can not too often repeat the cautions we have so frequently uttered upon this subject, and we feel that the present occasion is one which demands both their repetition and their application." In Russell v. Switzer, 63 Ga. 711, 725, in referring to certain cases from other jurisdictions which dealt with the requisites of general law concerning the fact of contract and the fulness and certainty of the evidence by which it is sought to be established, this court. speaking through Judge Bleckley, said: "They inculcate a wholesome caution against building up imaginary contracts out of the expression of generous intentions towards persons who, having rendered service, prefer claims for compensation after those whom they served have been removed by death. And the caution is doubly necessary where the claim presented is not merely for just compensation on the basis of a quantum meruit, or to some specific article or articles of property, but goes to the entire estate, real and personal, which the decedent left behind him. Nor is it the less necessary because the heirs at law, if any there be, are remote rather than proximate kindred, or because they are foreigners."
For the application of the principles above stated, we have set forth in the statement of facts enough of the evidence on which to predicate the ruling which we now make, to wit, that the court did not err in granting a nonsuit, for the reason that the evidence was not sufficient to establish the alleged contract with the degree of certainty required by law. While counsel for the plaintiff in error argue that the testimony of the husband of the claimant definitely established the contract, shows full performance, and a breach by Mrs. Grace, it will be noted that it is in fact not entirely consistent. The witness stated, it is true, in one part of his testimony that the contract was that all of the property of Mrs. Grace was to be willed to his wife, Mrs. Salmon, but elsewhere he stated that "we were to look after them and see that they were looked after as long as they lived, and then we were to have this property, both real and personal, at their death" [Italics ours], a disposition entirely at variance with the allegation of the petition that "the deceased was to execute a will giving to petitioner all of her property." Even if this glaring discrepancy could reasonably be reconciled by a liberal interpretation, instead of a strict construction, as meaning merely that Salmon and his wife were, as husband and wife living together, to become possessed of the property, with title in the wife, we are confronted with the testimony of two other witnesses introduced by the claimant, which forbids any reasonable conclusion that the evidence established the alleged contract "so clearly, strongly and satisfactorily as to leave no reasonable doubt as to the agreement." Mrs. Ivena Holsomback testified that Mrs. Grace said to her that "she had already given what she had to Bessie and Fred [the claimant and her husband] because they had been so nice to look after her. . . I saw some diamond rings she had. I tried them on. She said she had given Bessie the largest stone and Mrs. Henderson the second one, and I don't know about the third one." Disposing of the property by gift during her lifetime to Mr. and Mrs. Salmon "because they had been so nice to look after her," does not comport with the theory that Mrs. Grace was to execute a will and leave her property to Mrs. Salmon. Giving to Mrs. Henderson the second largest of three diamond rings does not lend countenance to the claim that all the personal property, as well as the realty. was to be willed to Mrs. Salmon. Testimony of Mrs. Dan Stevens, that Mrs. Grace told her "that when she left here, she wanted Mr. and Mrs. Salmon to have what she had. She did say something to me about a contract or some agreement she had with them," does not tend to establish the parol contract as pleaded by Mrs. Salmon, that all the property was to be willed to her, but raises a serious and reasonable doubt as to such a provision.
The claimant comes into court with the burden of proving the alleged contract with such definiteness as meets the stern requirements of the law, hereinbefore pointed out. Any inconsistencies in testimony offered by her must be resolved against her. The evidence did not establish the alleged contract so as to entitle the claimant to specific performance, and the court did not err in granting a nonsuit.
No ruling is made in what is said above as too whether or not the pleadings were sufficient to justify a decree by a court of equity of specific performance of the alleged contract, no such question being presented by an assignment of error on the grant of a nonsuit. See Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17).
Judgment affirmed. All the Justices concur.