Allen v. Bromberg

• Decision Date: 30 June 1909
• Citation: 50 So. 884,163 Ala. 620
• Parties: ALLEN ET AL. v. BROMBERG ET AL.
• Court: Alabama Supreme Court

50 So. 884

163 Ala. 620

ALLEN ET AL. v. BROMBERG ET AL.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by F. G. Bromberg and others against Edward P. Allen, executor of Mary B. Johnson, deceased, and others, to enjoin the probate of the will of defendant Allen's testatrix. From a decree for plaintiffs, defendants appeal. Reversed, and bill dismissed.

Sullivan & Stallworth, for appellants.

Frederick G. Bromberg, for appellees.

SIMPSON J.

This case was before this court, at a previous term, on motion to dismiss the bill, and the facts will be found fully stated in Allen et al. v. Bromberg et al., 147 Ala. 317, 41 So. 771.

It is claimed by the appellees that the court, on that occasion decided that the agreement by Mary B. Johnson with her husband, Frederick Johnson, to make a certain disposition of her property by will, was valid and binding. A reference to that case will show that the appeal was from a decree overruling a motion to dismiss the bill for want of equity and to dissolve the injunction, and a decree was here rendered dissolving the injunction and dismissing the bill for want of equity, on the ground that the bill sought to enjoin the probating of the will last made by said Mary B. Johnson, which could not be done. The court, however, stated the general principle that a person may make a valid agreement to dispose of property by will; "but the theory on which the courts proceed is to construe such agreement, unless void by the statute of frauds or other reason, to bind the property," etc. Page 321 of 147 Ala., page 772 of 41 South. It will be seen that the court expressly refrained from deciding the most important point in this case, to wit, whether the agreement contended for was void under the provisions of the statute of frauds.

It has been declared, with regard to wills of personal property made mutually by agreement between the parties, that after the death of one of the parties, having complied with his agreement, the other party cannot revoke his will. Dufour v. Periera, 1 Dickens' Reports, 419; Stone v. Hoskins, L. R. [ 1905] 194 (in this case it is not specifically stated that only personal property was involved, but it is presumed, as no question of the statute of frauds was raised); Izard v. Middleton, 1 Desaus. (S. C.) 116. There are also cases, where one of the parties to mutual wills has reaped the fruits of the will of another, he cannot revoke his will made mutually, even though it relates to lands. These are based upon the performance by one party of his part of the contract, which principle, as will be shown, does not apply under our statute of frauds and decisions. Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528. Others place it upon the ground that the partial or entire performance was of such a nature that it would operate as a fraud upon the party performing to deny relief; others again on the principle that a trust was imposed on the land, which cannot be done under our statute by parol. Korminsky v. Korminsky, 2 Misc. Rep. 138, 21 N.Y.S. 611; Brinton v. Van Cott, 8 Utah, 480, 33 P. 218; Heath v. Heath, 18 Misc. 521, 42 N.Y.S. 1087. There are other cases where the will partook of the nature of a contract, and the statute of frauds was complied with, by placing the devisee in possession at the time of making the will, and he performed his part, in which it was held that the will could not be afterwards revoked. Smith v. Tuit, 127 Pa. 341, 17 A. 995, 14 Am. St. Rep. 851; Tuit v. Smith, 137 Pa. 35, 20 A. 579; Smith v. Pierce, 65 Vt. 200, 25 A. 1092 (there was really no acceptance in this case); Bird v. Pope, 73 Mich. 483, 41 N.W. 514.

Our statute specifically provides that parol contracts relating to the sale of lands or any interest therein are void, unless the purchase money or a portion thereof be paid, and the purchaser placed in possession (Code 1907, § 4289, subd. 5); and our court has uniformly held that both of these requisites are necessary, in order to take the contract out of the operation of the statute. Heflin v. Milton, 69 Ala. 354, and cases cited in Code; also, Thompson v. New South C. Co., 135 Ala. 630, 637, 638, 34 So. 31, 62 L. R. A. 551, 93 Am. St. Rep. 49. In a case where, by a verbal agreement, the defendant had agreed not to erect, or allow to be erected, a warehouse at a certain landing, if complainant would purchase the adjoining land, erect a warehouse, and store freight free of charge, all of which was done, it was held that this performance did not take the contract out from the operation of the statute of frauds, and that a court of chancery could not enforce the contract. Clanton v. Scruggs, 95 Ala. 279, 10 So. 757. The reasoning of the court is that even in this extreme case where the party had acted on the faith of the contract, performing his part so as to place himself in a position which could not be retracted, the party could not be estopped from setting up the statute, at least unless the promise was made fraudulently, with no intention of performing it, and the court does not commit itself even to that proposition (page 283 of 95 Ala., page 758 of 10 South.).

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