Opinion
No. 33618.
April 10, 1939.
1. CONTRACTS.
A contract whereby inmate in home for aged women agreed that, in event she remained in home until her death, home should be entitled to $10 per week for time inmate remained in home if she failed to leave all her property to home, was not unenforceable because contract was "unilateral," since, although contract was "unilateral" in its inception, it became "bilateral" because of performance on part of the home.
2. CONTRACTS.
Consideration for a promise may be an act other than a promise.
3. WILLS.
Under mortmain provisions of Constitution avoiding devise for charitable uses, contract by inmate in home for aged women to make will leaving all her property to home and providing that in event of her failure to do so home should be entitled to designated sum for time she remained in home, did not discharge indebtedness of inmate to home for her care because of inclusion of agreement to make void will (Const. 1890, sec. 269).
4. ASYLUMS.
A contract whereby inmate in home for aged women agreed that if she remained in home until her death home should be entitled to $10 per week was not unenforceable on ground that inmate did not continue as such until her death, where inmate entered home September 28, 1933, and remained there until removed to hospital on July 9, 1936, and she died July 30, 1936, since, while in hospital, inmate remained in fact an "inmate" of the home.
APPEAL from the chancery court of Marshall county; HON. L.A. SMITH, SR., Chancellor.
Lester G. Fant, Sr., Jr., of Holly Springs, for appellant.
In unilateral contracts the consideration is something other than a promise.
1 Restatement, Law of Contracts, par. 75, page 81.
In the case of House v. Callicott, 83 Miss. 506, Judge Calhoon in a very able opinion discusses the consideration for a unilateral contract, and we think clearly shows that there was absolutely no consideration for this contract. Nothing was to move from the Home; nothing was to move to Mrs. McClain. This contract was not a condition under which she moved into the Home as an inmate and was not executed until after she had been an inmate of the Home four months.
An agreement which seeks to bind only one of the parties thereto is unilateral, and until performance is binding on neither party.
Restatement, Law of Contracts, par. 12; Kolb v. Bennett Land Co., 74 Miss. 567; Jayne v. Drake, 41 So. 372; Rape v. M. O.R. Co., 136 Miss. 38; Hollister v. Frellsen, 148 Miss. 568; Stigler v. Jaap, 83 Miss. 351; Smith v. Cauthen, 98 Miss. 746.
The court will remember from the record that Mrs. McClain was removed from the Home on the 9th of July, about 21 days or 3 weeks before her death, and placed in a charity ward in the John Gaston Hospital of Memphis; and, consequently, was not an inmate of the Home at the time of her death. The contract to make the will, being entirely written by the Mary Galloway Home, is to be most strictly construed against the interests of the Mary Galloway Home for Aged Women. It was a printed contract, nothing written into it, simply signed by Mrs. McClain, the language all being arranged by the Mary Galloway Home, and since it voluntarily, at a time when Mrs. McClain could not help herself, excluded her from the comforts of the Home and placed her in a charity ward of the John Gaston Hospital, she did not remain an inmate of the Home until the time of her death. In fact, she was placed in the John Gaston Hospital, which is the charity hospital of the City of Memphis, where she had the same attention that any pauper would have, and no more. This fact alone, we contend, renders nugatory and void any contract to make a will to the people who in her last illness had treated her in this manner.
Rape v. Mobile O.R. Co., 136 Miss. 38; Smith v. Cauthen, 98 Miss. 746.
Had Mrs. McClain made the will, the failure which is the predicate upon which this large claim of over $1,000 is probated against her estate, under the Mississippi statute of Mortmain the Home would have gotten nothing. So as we see it, there was absolutely no consideration for the contract, and no damages resulted to the Home by reason of the alleged breach of the contract.
Sec. 3564, Code of 1930.
In Greely v. Houston, 148 Miss. 799, this section of the code has been thoroughly aired by our Supreme Court, leaving it beyond the cavil of a doubt that had Mrs. McClain attempted to will her land in Mississippi to the Mary Galloway Home for Aged Women, her heirs would have taken the property as though she had not attempted to make the will.
Mahorner v. Hooe, 9 S. M. 247, 48 Am. Dec. 706.
Our Supreme Court has universally held that where a transaction is one entire contract and it is usurious in part, it is illegal as a whole.
Brown v. Nevitt, 27 Miss. 801.
Where a contract is not separable and part of it is void as against public policy, the entire contract is void.
Bank of Newberry v. Stegall, 41 Miss. 142; Crawford v. Storms, 41 Miss. 540; Cotten v. McKenzie, 57 Miss. 418; Dixie Rubber Co. v. Catoe, 145 Miss. 342.
The Constitution, and the statute laws putting into force the Constitution of Mississippi, very specifically prohibited Mrs. McClain from doing what in her ignorance she promised to do. She could not directly do what she promised to do. Then surely she could not by indirection do what she was absolutely prohibited from doing directly. In other words, if this contract is to have the construction sought to be put upon it by the Mary Galloway Home, then while Mrs. McClain was specifically prohibited by law from leaving her real property, or money to be derived from the sale of her real property, for charitable purposes by making this contract she would make absolutely invalid the statute laws of the state of Mississippi and its constitutional law whereby indirection she would in fact will her real property to this Mary Galloway Home, when as a matter of fact she could not do it in any other way.
I do not charge that the Mary Galloway Home and Mrs. McClain entered into a conspiracy to avoid the statute laws and the constitutional law of the state of Mississippi, but if this contract is given the construction sought to be put upon it by the Mary Galloway Home that will avoid the provisions of the Constitution and statute laws — and if one can do it all can do it — then the statute of mortmain in the state of Mississippi will be absolutely put aside and held for naught; if by indirection and contract parties who are so disposed to do can make a contract similar to this and then have the court enforce that part of it which is nothing more or less than a penalty for the failure to make a will, then the state of Mississippi has lost its power to enforce its statutes of mortmain.
A contract to do an unlawful thing is a void contract in Mississippi. It is unlawful to will real estate to be used for charitable purposes, whether willed to an ecclesiastical institution or to a non-ecclesiastical institution.
The laws of the State of Mississippi and not the laws of the State of Tennessee should govern the court in determining whether or not this contract is void.
5 R.C.L. 1012; Jones v. McFarland, 178 Miss. 282.
Charles M. Crump, of Memphis, Tenn., for appellee.
In the absence of an intention to the contrary, the validity and construction of a contract are governed by the law of the place of making.
13 C.J. 248, sec. 19; Restatement of Conflict of Laws, sec. 332; Strumberg on Conflict of Laws, pages 212, 218; Moak v. Continental Cas. Co., 4 Tenn. App. 287; Yerger v. Rains, 27 Tenn. 259; Brown v. Nevitt, 27 Miss. 801; Partee v. Silliman, 44 Miss. 272; Couret v. Conner, 118 Miss. 374, 79 So. 230.
Under general rules of construction and the law of Tennessee, this is a valid contract for the payment for services to be rendered in furnishing board.
According to the accepted rules of construction, the facts surrounding the execution of the contract may be looked to in determining the true intention of the parties and the nature of the contract.
Pratt v. Canton Cotton Co., 51 Miss. 470; Newman v. Supreme Lodge, Knights of Pythias, 110 Miss. 371, 70 So. 241; Hardwick v. Can Co., 113 Tenn. 657, 88 S.W. 797; Railroad v. Bacon, 128 Tenn. 169, 159 S.W. 602.
A contract should be upheld, if possible, on the ground that the parties did not intend to impose conditions impossible of performance. If part of the contract is valid and part invalid, effect should be given that which is valid.
Memphis Furniture Mfg. Co. v. Wemyss Furniture Co., 2 F.2d 428; American Sugar Refining Co. v. Newman Grocery Co., 284 Fed. 835; Smithart v. Mutual Life Ins. Co., 167 Tenn. 513.
Where a contract may fairly be construed not to be violative of laws, the courts should incline to give it that construction, and thus maintain its validity.
Carolina Spruce Co. v. Black Mountain R. Co., 139 Tenn. 137, 201 S.W. 154, 248 U.S. 597, 39 Sup. Ct. 184, 63 L.Ed. 439; New Memphis Gaslight Co. cases, 105 Tenn. 268; Citizens Bank v. Frazier, 157 Miss. 298, 127 So. 716; Grandberry v. Mortgage Bond Trust Co., 159 Miss. 450, 132 So. 334.
Even though the agreement be construed as a contract to make a will, it is not void in Mississippi as to personal property.
The Home is not a religious or eccleiastical corporation or society or a religious denomination or association as is prohibited from receiving a devise or bequest of real or personal property under Sections 269 and 270 of the Constitution of Mississippi which are identical to Sections 3564 and 3565, respectively, of the Mississippi Code of 1930.
Since the Home is a non-religious charitable corporation, although it is conceded that it could not take a devise of land situated in Mississippi because of Section 3564, yet it could receive a bequest of money or personal property, for Section 3565 prohibits such bequests only to religious or ecclesiastical corporations or societies or to religious denominations or associations.
Blackburn v. Tucker, 72 Miss. 735, 17 So. 737; Hailey v. McLaurin's Estate, 112 Miss. 705, 73 So. 727; Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 505; Greely v. Houston, 148 Miss. 799, 114 So. 740; Anderson v. Gift, 156 Miss. 736, 126 So. 656.
Mrs. McClain could have made a valid will of money or personal property and it would be valid even in Mississippi where distribution is to take place.
The provision for compensation is one for liquidated damages and the Home having sustained actual damage this provision measures the amount provable against the estate.
1 Sutherland, Damages (4 Ed.), page 40; Sun Printing Publishing Ass'n. v. Moore, 183 U.S. 642, 46 L.Ed. 366; U.S. v. Bethlehem Steel Co., 205 U.S. 105, 51 L.Ed. 731; Wise v. U.S., 249 U.S. 361, 63 L.Ed. 647; Swift Co. v. Warehouse Co., 128 Tenn. 82, 158 S.W. 480; Varno v. Tindall, 164 Tenn. 642, 57 S.W.2d 552; City of Bristol v. Bostwick, 146 Tenn. 205, 240 S.W. 774; Vaulx v. Buntin, 127 Tenn. 118, 153 S.W. 481; Railroad v. Cabinet Co., 104 Tenn. 568, 58 S.W. 303; Tennessee Mfg. Co. v. James, 91 Tenn. 154, 18 S.W. 262, 68 C.J. 602.
Although a unilateral contract, this agreement, having been performed on one side by the Home, is not without consideration.
Restatement of Contracts, sec. 75, page 81; House v. Callicott, 83 Miss. 506, 35 So. 761; Evans v. Lauderdale, 78 Tenn. 73.
The fact that Mrs. McClain was removed to the hospital during her last illness does not defeat the contract.
Transfer Storage Co. v. Willis, 16 Tenn. App. 99, 66 S.W.2d 214; Tyus v. Duke, 178 Ga. 800, 174 S.E. 527; Penas v. Cherveny, 135 Minn. 427, 161 N.W. 150.
Invalidity of the agreement as requiring Mrs. McClain to devise Mississippi real estate does not affect validity of other provisions of the contract.
Crawford v. Storms, 41 Miss. 540; Cotton v. McKenzie, 57 Miss. 418; Bank of Newberry v. Stegall, 41 Miss. 142.
Argued orally by Lester G. Fant, Jr., for appellant and by Chas. M. Crump, for appellee.
This is an appeal by Wright, as administrator of the estate of Mrs. Eda J. McClain, from a decree of the chancery court of Marshall County holding to be valid a claim of the Mary Galloway Home For Aged Women probated against said estate.
There was no dispute about the material facts. They were embodied in a stipulation by counsel representing the parties, which follows, leaving off signatures:
"It is stipulated and agreed by and between counsel for C.H. Wright, Administrator, and for the Mary Galloway Home for Aged Women, Claimant, that the following facts are to be accepted as proved, and may be used as evidence by any of the parties to this law suit without the necessity of further proof of the same.
"The Mary Galloway Home for Aged Women is a non-religious charitable organization incorporated under the laws of the State of Tennessee, maintaining on the corner of Monroe Avenue and Manassas Street, Memphis, Tennessee, a two-story building which contains 29 single rooms for inmates, a sun parlor, a living room and dining room, and employing a matron and five additional persons for the purpose of furnishing to aged women room, board, laundry, practical nursing and entertainment. The revenue of the Home consists of voluntary contributions, an allotment from the Community Fund of Memphis, and such sums as are left by wills or all collected under agreements such as the one attached hereto, but the collections under these agreements are necessarily small as only women dependent on charity are admitted to the Home. The cost of providing for each inmate is greatly in excess of the $10.00 per month fee charged, and is more nearly consistent with the $10.00 per week directed to be paid out of the estate under the terms of the agreement signed by each inmate upon her admission to the Home, copy of which is attached hereto.
"Mrs. Eda J. McClain entered the Home on or about September 28, 1933, and remained an inmate therein until a very serious heart ailment, from which she suffered the entire time she was at the Home, necessitated her removal to the John Gaston Hospital of Memphis on July 9, 1936. She remained at the Hospital in a critical condition until her death on July 30, 1936.
"On February 21, 1934, Mrs. McClain executed an agreement, copy of which is attached hereto. Mrs. McClain paid to the Home $20.00 admission fee, and the sum of $460.00 toward her board expense. She was an inmate of the Home for 33 1/2 months, or a period of 145 weeks. On the basis of the $10.00 per month fee required to be paid toward board expense, at the time of her death she had a credit of $125.00.
"Her funeral bill amounted to $200.00, and is a preferred claim. In addition to her funeral expenses, Mrs. Lucy Matthews Jones probated a claim for $187.44; the Doctor for the last illness $12.00; Hamilton Harris $1.00; making a total of $400.44 indebtedness against the estate, exclusive of the cost of administering the estate.
"Her entire personal estate consisted of $145.55 deposited to her credit in the Bank of Holly Springs, a legacy of $250.00 left her by her cousin, Charles Oliver, and a claim for the above described credit with the Home of $125.00, making a total personal estate of $520.55. Exclusive of the expenses of administering the estate the indebtedness is $400.44, leaving a net personal estate of $120.11, which is more than enough to pay the costs of administration. There will remain an undetermined amount of intestate personal estate.
"The only other property that she had consisted of her one-half interest in the old homestead of her father, W.H. Jones. The other half belongs to the widow of her brother, Mrs. Lucy Matthews Jones."
The contract signed by Mrs. McClain after entering the Home follows: "Having been admitted as an inmate of the Mary Galloway Home for Aged Women of Memphis, Tenn., I, the undersigned, do hereby, in consideration of my admission to the said Home, agree to abide by all the rules, regulations and terms of admission, and to so conduct myself as not to interfere with the peace, harmony and good order of the Home, under penalty of dismission and the forfeiture of any sum of money which may have been paid for admission, all in the discretion of the Circle.
"Should I now own property of any kind, or should I at any time after my admission to the Home become possessed, by inheritance or otherwise, of any property of any kind, or of money or other securities, and still continue to be an inmate of the Home until my death, I hereby promise and agree to leave all such property or funds to the Home. Should I fail to do this the Home shall be entitled to the sum of $10.00 per week board for the entire time which I shall so remain in the Home, less the fee of $10.00 per month which I have paid, and this shall be a just claim against my estate." The contract was not signed by the Home, but by Mrs. McClain alone. It was also sworn to by her before a notary public, in addition to being attested by two subscribing witnesses. She died without making a will, and the Home probated its claim under the last clause of the contract, which provides that on her failure to make a will "the Home shall be entitled to the sum of $10.00 per week board for the entire time which I shall so remain in the Home, less the fee of $10.00 per month which I have paid, and this shall be a just claim against my estate".
It is argued on behalf of Mrs. Wright's estate that the contract was unilateral — that there was no reciprocal promise on the part of the Home, and, therefore, it had no binding force on her. It is true that the contract was unilateral in its inception. It became bilateral, however, because of its performance on the part of the Home. In other words, Mrs. McClain's promise was met by the Home with performance. Consideration for a promise may be "an act other than a promise". Rest. Law, Contracts, Sec. 75.
It is argued further for the administrator that the Home's claim against the estate is invalid because Mrs. McClain agreed to pay it by making a will devising and bequeathing to the Home all real and personal property which she might own at her death; that such a will as to real estate is violative of Sec. 269 of our Constitution (Sec. 3564, Code 1930) commonly known as Mortmain Provisions. They provide, among other things, that a devise of land or any interest therein to be appropriated to charity uses or purposes shall be null and void. In other words, it is contended that the contract to make such a will is not only void, but, in addition, discharged the indebtedness of Mrs. McClain to the Home for her care, maintenance, and support. We are of the opinion that position is not sound. The failure to make the will did not affect Mrs. McClain's obligation to the Home. It was left outstanding and unpaid. If a will had been made violating the Mortmain Provisions of the Constitution and Statute and for that reason held void, whether the discharge of the indebtedness would have thereby resulted is unnecessary to decide. That question is not here. We have here a valid indebtedness and a contract to pay it by means of a void will, at least in part, and on failure to make such a will the debt shall continue as a valid claim. There is no infirmity in the obligation to pay.
The contention that Mrs. McClain's obligation to pay for her care in the Home did not arise because she did not continue as an inmate therein until her death is without merit. The Home, on account of serious heart trouble from which she was suffering, placed her in the John Gaston Hospital in Memphis to be treated therefor. She died after being there about three weeks. We think while there she was really still an inmate of the Home. If she had recovered, she would doubtless have returned.
Affirmed.