Grant v. Butt, 15335.

• Citation: 17 S.E.2d 689
• Decision Date: 01 December 1941
• Docket Number: No. 15335.,15335.
• Court: United States State Supreme Court of South Carolina
• Parties: GRANT. v. BUTT.

17 S.E.2d 689

GRANT.
v.
BUTT.

No. 15335.

Supreme Court of South Carolina.

Dec. 1, 1941.

[17 S.E.2d 690]

Appeal from Common Pleas Court, of Charleston County; George Bell Timmerman, Special Judge.

Action by Mamie F. Grant against M. J. Christine Butt, as administratrix of the estate of William C. Von Glahn and M. J. Christine Butt, individually, for breach of contract to leave certain property to the plaintiff. From an adverse judgment, plaintiff appeals.

Affirmed.

Order of Special Judge Timmerman follows:

This case is before me on a demurrer to the complaint, the grounds of which will be adverted to later. Oral arguments were made in open Court, the case was marked "Heard" and, by agreement of counsel, decision on the issues raised was reserved to be entered nunc pro tunc.

The complaint alleges a most extraordinary state of facts dealing with the lives of two individuals, one a negro woman, or part negro and part Indian, and the other a white man, now deceased. The plaintiff alleges that she is a descendant of the American or Indian race; that prior to 1907, she had married a negro man by whom she had two children, only one of whom is now living; that her negro husband died prior to 1907 and after his death she met defendant's intestate, a white man, who "became interested in, infatuated with, and fell desperately in love with this plaintiff"; that for a long time the intestate forced his attentions upon her, insisted on being in her company and in her home and repeatedly and insistently begged her "to marry him and live with him as his wife"; and that the plaintiff, "appreciating that under the laws of the State of South Carolina a negro could not legally contract marriage with a person of the Caucasian race, " refused the offer of marriage. The plaintiff then alleges that the intestate "insisted and entreated that this plaintiff should leave the State of South Carolina and go with him to some State where they could legally marry, " but that she "refused to either marry him in the State of South Carolina or move with him to any other State as his wife, " although she was fond of him and enjoyed his company and companionship.

Following the foregoing, the plaintiff alleges, in the fourth paragraph of the complaint, an oral contract between herself and the intestate as having been made on Thanksgiving Day in 1907. She says it was agreed on her part: (a) That she would not marry so long as the deceased lived; and (b) that she would give the deceased the full benefit of her presence, companionship, care and assistance, and the absolute freedom of her home.

She then alleges that the intestate agreed on his part: (a) To give plaintiff his undivided affection and companionship; (b) to furnish plaintiff money for the maintenance of herself, her home and her children; (c) to take out a life insurance policy, and make the plaintiff the beneficiary thereof; (d) to assign to the plaintiff certain of his assets; and (e) to make a will giving the plaintiff one-half of his estate if she survived him and kept her agreements.

The plaintiff claims to have fully performed her part of said contract and that the intestate had fully performed his part, except that he neglected to leave her one-half of his estate on his death.

The plaintiff specifically alleges, as evidence of her complete compliance with the

[17 S.E.2d 691]

terms of the contract, that she gave the intestate "her presence, companionship, care and assistance, and the absolute freedom of her home and table; and the deceased, regularly and without interruption, over the span of years, accepted her companionship, care, assistance, and the absolute freedom of her home and table"; that the intestate "entertained his white friends in her home, " that he "ate at her table, " that he "slept in her bed, " that he "treated her home * * * as his home, " that he "acted there as though it were his home, " that he "kept at all times in his possession a key to her dresser drawer, her trunk, and her lock box, " and that he "exercised complete access to her every and most personal and intimate belonging." In fact the plaintiff alleges that both she and the intestate fully performed every obligation assumed under the oral contract, except that the intestate had failed to will or leave her one-half of his property on his death.

The plaintiff then proceeds to allege certain acts on the part of the intestate in confirmation of the oral contract originally entered into, as the giving of a ring with one diamond after the contract had been in force for ten years, then a ring with two diamonds after the contract had been in force twenty years, and finally a ring with three diamonds after the contract had been in force for thirty years.

The plaintiff concludes by alleging that, after due diligence, she had been unable to find any will or other instrument in writing, left by the intestate, through which she could enforce her rights under the contract, and that by reason of the contract she is entitled to one-half of the net assets of the intestate's estate. She fixes the value of the estate at $143,000.

The demurrer makes seven grounds of attack upon the complaint. They are as follows:

"1. In that it appears from the facts set forth on the face of complaint that the Court has no jurisdiction of the subject of the action, the principle of public policy being dolo malo non oritur actio.

"2. In that it appears upon the face of the complaint that the plaintiff has not the legal capacity to sue, in that no Court will lend its aid to one who founds his cause of action upon an illegal act.

"3. In that it appears upon the face of the complaint that the plaintiff has not the legal capacity to sue, in that the contract alleged in the complaint and the part performance alleged therein are repugnant to the public policy of the State of South Carolina, and no Court of this State will lend its aid to one who founds his cause of action upon a contract that contravenes the public policy of this State.

"4. In that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a...