Baylor v. Bath

• Decision Date: 29 December 1938
• Docket Number: 14795.
• Parties: BAYLOR et al. v. BATH et al.
• Court: South Carolina Supreme Court

1 S.E.2d 139

189 S.C. 269

BAYLOR et al. v. BATH et al.

No. 14795.

Supreme Court of South Carolina

December 29, 1938

Rehearing Denied Jan. 25, 1939.

The report of the referee follows:

This suit was brought to enforce the performance of an alleged oral contract to make a will. The action was commenced on January 16, 1937. The contract alleged in the complaint is embodied in paragraph 4 thereof, and is as follows: "That in the early days of November, 1933, the said H. O. Pipkin, on the one hand, and L. C. Baylor and Elizabeth F. Baylor, on the other, made and entered into a contract whereby it was then agreed that the plaintiffs would move into the residence on the said H. O. Pipkin lands and would occupy the kitchen, dining room and one bedroom of said residence, and would furnish and prepare meals for the said H. O. Pipkin, and would look after his comfort and his laundry, and would nurse him during his illness as long as the said H. O. Pipkin should live, and the said H. O. Pipkin on his part, in consideration of said services during his life time agreed to will the said plantation owned by the said H. O. Pipkin to the plaintiffs, or the survivor of them in fee simple."

The plaintiffs allege the full performance by them of their part of the contract, and that although diligent search has been made for such will, none could be found.

The defendants in their answer deny the making of the alleged contract, and plead the Statute of Frauds in bar of the action.

It is admitted that the defendant May Bath, as the niece of H O. Pipkin, deceased, is his sole heir-at-law.

Two issues are made by the pleadings, casting upon plaintiffs the burden of proving by the greater weight of the evidence.

First. The making of the alleged agreement.

Second. Performance by plaintiffs of the obligations assumed by them under the contract.

These two questions will be discussed in the order stated above.

As to the existence of the contract itself, generally speaking the essential elements of any contract are a contractual intent, followed by an actual meeting of the minds of the parties and accompanied by a valid consideration. Provided the requisite certainty and definiteness as to the subject matter is also apparent, the foregoing basic elements are sufficient to constitute an enforceable contract to make a will. And such a contract, under settled principles of law, may be either oral or written. As stated, it is with an alleged parol agreement that we are concerned here.

The questions arising under the pleadings and the evidence in this case are factual and are controlled by well established legal principles. It is conceded that the present action is one of equitable cognizance, and that the court in the exercise of its equitable powers may enforce specific performance of a contract of the character relied on by plaintiffs, provided it has been taken out of the Statute of Frauds, Code 1932, § 7044, under the doctrine of part performance.

The record reflects the following undisputed facts:

H. O. Pipkin was a bachelor, and at the time of his death in October of 1936 was about sixty years of age. He had owned for a number of years a tract of land situate in Williamsburg County, containing approximately three hundred acres, upon which there had long been a substantial residence which had been his home. On this farm, for some years previous to 1934, Mr. Pipkin had had a number of share croppers or tenants who had planted and cultivated a variety of crops. He also owned on this property a pecan orchard of considerable size, as well as an apple and pear orchard near the residence. Mr. Pipkin, although a college graduate, was not a practical or experienced farmer and had no mechanical aptitude. For many years he was engaged in clerical work as an employee in the store of F. Rhem & Sons, and later he was elected Magistrate for the section of Williamsburg County in which he resided. The territory included in his district was about twenty miles in diameter, and the major portion of his time during the latter years of his life was consumed with his magisterial duties. For several years before he died he was in failing health and needed the services of a woman's hand. His only close relative was his niece, the defendant, Mrs. Bath, from whose husband he had become estranged. While there appears to have been no estrangement between him and his niece, their relations had never been intimate, and they saw each other only at rare intervals.

In the fall of 1933, the Baylors moved into the Pipkin home, where they remained until his death three years later. During that period, L. C. Baylor operated the farm under a share crop agreement with Mr. Pipkin, the further agreement being that Mrs. Baylor would serve as housekeeper for Mr. Pipkin as long as the arrangement should prove mutually satisfactory. For these services the Baylors were to receive one-third of all crops produced on the farm. At the time of Mr. Pipkin's death in October, 1936, no settlement had been made with the Baylors for their share of the crops for that year, and on November 21, 1936, L. C. Baylor and Elizabeth F. Baylor brought an action in this Court against the Administratrix of the Estate of H. O. Pipkin, deceased, demanding an accounting and judgment for the amount due them from the proceeds of the 1936 crops. This proceeding was prosecuted to final judgment (while the instant action was pending) resulting in a decree dated March 6, 1937, for judgment for plaintiffs for the sum of $259.10.

With the situation of the parties thus depicted, we are faced with this inquiry: Placing the burden of proof upon plaintiffs, does the evidence show the existence of the contract as alleged by them? The witnesses on each side offer conflicting statements on this point, and an analysis of the evidence touching the question is therefore expedient.

Among the witnesses who testified for plaintiffs, the most clear-cut statement as to the existence of the alleged agreement between plaintiffs and H. O. Pipkin is found in the testimony of Butler Mitchum. Having testified that he had known Mr. Pipkin all his life, he recited the following conversation which occurred between them during the year 1935: "I said: 'Hugh, it is a gracious pity that you didn't get married.' He says: 'Why?' I says: 'You have a nice home.' He says: 'I thought one time I was going to get married but for some reason I got broken up.' I said: 'I suppose you will leave your property to Mrs. Bath,' and he shook his head and said that was not his idea. He said: 'I made a proposition to Mr. Baylor and his wife if they would come here and take care of my house and do my mending and so forth, I would give them the property, if they outlived me, I would leave it to them."'

On this point the testimony of other witnesses on behalf of plaintiffs was to the following effect:

W. D. Morris, in answer to the question "Did you ever hear Mr. Pipkin say what he was going to do about his property?" replied "He said he was going to see that Mr. Bath didn't receive any of his property and that he was leaving Baylor and his wife to continue on as they were--he was going to leave this property to them." This witness had known Mr. Pipkin all his life and had served as his constable for a period of two years-- up to approximately six weeks preceding Mr. Pipkin's death. He testified also as to an estrangement which existed between Mr. Pipkin and the husband of the defendant, Mrs. Bath.

F. S. Rogerson had known Mr. Pipkin for about twenty-three years, and he testified that in July, 1936, Mr. Pipkin, during the course of a conversation between the two, had said: "Mrs. Baylor and Lee was staying with him and he had promised to leave everything to them if they would stay with him during his lifetime, and he thought that was best."

The witness, S.D. Tisdale, testified that he is seventy years of age and had been a life-long acquaintance of Mr. Pipkin. He related the following conversation between himself and Mr. Pipkin: "The day I went there to a trial he told me to go to dinner with him. We went in to dinner and he carried me into the kitchen. After dinner he carried me out to his office. Me and Hugh always joked with each other. When I came out from dinner I asked Hugh why he didn't get married. I said: 'Who will you leave this property to if you don't get married?' He said: 'I have got as nice people here as I need in my home. I got one niece and I offered it to her if she would stay with me. I got some people here and they are just as nice and Mrs. Bet is as nice a woman as I ever had in my home in my life to take care of my property. She is a nice cook and a nice housekeeper, and I got somebody to leave my property to when I die."' The witness then added: "He said if they stayed with him, Mrs. Baylor and Lee Baylor, he was going to leave it to them."

The testimony of E. L. Fly was to the effect that in September, 1936, Mr. Pipkin had said to him that "Mr. Baylor and his wife were the best people he had ever had any dealings with and that Baylor's wife treated him as though she was his daughter, and he said when the election was over --he was in the race for Magistrate at the time--that he was coming up here and fix things up so that he could leave what he had to Baylor and his wife."

None of these witnesses are related in any way to either of the plaintiffs. There is no apparent reason for the existence of any bias or prejudice on the part of any of them.

The testimony recounted above is supported and in effect corroborated by one of the defendants' witnesses, Frank Green: This witness was asked on direct examination whether Mr. Pipkin had made any statement to him of what disposition he was going to make of his...