Brown v. Graham

• Decision Date: 11 June 1963
• Docket Number: No. 18082,18082
• Citation: 131 S.E.2d 421,242 S.C. 491
• Parties: Levi BROWN and John Brown, Appellants, v. Mattie McCants GRAHAM, Individually and as Executrix of the Last Will and Testament of Queen McCutchen, and as Administratrix, c.t.a., d.b.n. of the Estate of Elliott McCutchen and Annie McGill Fletcher, Respondents.
• Court: South Carolina Supreme Court

Page 421

131 S.E.2d 421

242 S.C. 491

Levi BROWN and John Brown, Appellants, v. Mattie McCants GRAHAM, Individually and as Executrix of the Last Will and Testament of Queen McCutchen, and as Administratrix, c.t.a., d.b.n. of the Estate of Elliott McCutchen and Annie McGill Fletcher, Respondents.

No. 18082.

Supreme Court of South Carolina.

June 11, 1963.

M. L. Meadors, Florence, for appellants.

Yarborough & Nettles, C. T. McDonald, Florence, for respondents.

LEWIS, Justice.

The plaintiffs brought this action to require the specific performance of an alleged oral contract to make a will, which the plaintiffs claim to have entered into with Elliott McCutchen, deceased. Involved is the ownership of a 145 acre tract of farm land in Florence County, South Carolina, owned by Elliott McCutchen at the time of his death in 1952.

The plaintiffs alleged that they were the illegitimate sons of Elliott McCutchen and that, recognizing such fact, Elliott agreed to make a will devising to them his real estate, consisting of the foregoing 145 acre farm, upon the death of his wife Queen McCutchen, 'if they would remain with him and operate his farm or assist him if he became ill and help him in the conduct of his business generally.' They allege performance of the contract on their part. Elliott McCutchen did not devise the land to the plaintiffs but, instead, left a will in which he devised fee simple title to all of his property to his wife who, at her death in December, 1954, left a will in which she devised a tract of farm land formerly owned by her husband, described as containing 100 acres, more or less, jointly to a sister and sister-in-law, the defendants in this action.

The defendants, in their answers, deny the making of the alleged contract and its performance by the plaintiffs, and plead the statute of frauds, laches, and estoppel as a bar to this action.

The issues were referred to the Master for Florence County under a general order of reference, and he filed a report dated May 1, 1957, sustaining the alleged contract to devise and recommending that specific performance thereof be ordered by the court. Upon exceptions to the report, the circuit court reversed the findings of the Master and denied specific performance upon the ground that the plaintiffs had failed to establish the contract relied upon by the requisite degree of proof. The plaintiffs have appealed from such adverse judgment. Also involved is an appeal by the defendant from an order of the lower court settling the case for appeal to this Court.

The sole question presented by the appeal of the plaintiff is: Did the lower court err in holding that they had failed to establish the alleged contract between them and the deceased, Elliott McCutchen, by the degree of proof required under the law?

The issues are primarily factual and concern the establishment of an alleged oral contract to devise.

It is well settled that such agreements must possess all of the essential elements of a legal contract. Baylor et al. v. Bath et al., 189 S.C. 269, 1 S.E.2d 139.

The burden of establishing the existence of the alleged contract and its terms rested upon the plaintiffs. However, the usual rule of preponderance or greater weight of the evidence, applicable to civil actions generally, does not apply in actions to establish a parol contract to devise. It is not enough that such an agreement be proven by a mere preponderance of the evidence. Such contracts are regarded with suspicion and will not be sustained unless established by definite, clear, cogent and convincing evidence, a higher degree of proof than is necessary in the usual civil case. Young v. Levy, 206 S.C. 1, 32 S.E.2d 889; Samuel v. Young, 214 S.C. 91, 51 S.E.2d 367.

Our inquiry then is: Have the plaintiffs established the existence of the contract as alleged by definite, clear and convincing evidence?

Elliott McCutchen owned a tract of farm land, consisting of 145 acres, more or less, located in Florence County, South Carolina upon which he and his wife, Queen McCutchen, resided for a number of years prior to their death. They had two children who died in their infancy. They resided upon the farm alone and during the last few years of their life were in declining health. Experiencing difficulty in operating it because of their health, the farm was rented to one Baxley for the years 1949 and 1950 but, beginning with the year 1951 and until the death of Elliott and his wife, it was farmed by the plaintiffs, John and Levi Brown, who resided on lands nearby.

The plaintiffs contend that about 1950 Elliott McCutchen entered into the alleged agreement to devise his real estate to them, and that pursuant thereto they began operating the farm in 1951 and looking after Elliott, his wife, and their business affairs.

Elliott died in 1952 leaving a will dated April 6, 1943 in which he devised all of his property, including the foregoing land, to his wife. He left no other will. His wife died in 1954 leaving a will dated January 22, 1953 in which she devised the land jointly to the defendants in this action.

The plaintiffs rely upon the testimony of three witnesses to establish the alleged contract.

P. D. Poston, who was a merchant in the Town of Johnsonville and also made farm loans for concerns represented by him, testified that in the Fall of 1951 the plaintiffs, John and Levi Brown, applied to him for a loan to finance their farming operations. John Brown owed to the witness a past due account, and he refused to make the loan unless Elliott McCutchen and his wife would sign a real estate mortgage over their land as security, not only for the loan applied for but also the past due indebtedness of John. Later, the plaintiffs brought Elliott and his wife to the store of Mr. Poston where they executed the requested...