Burdine v. Burdine's Ex'r

• Citation: 98 Va. 515,36 S.E. 992
• Parties: BURDINE. v. BURDINE'S EX'R et al.
• Decision Date: 13 September 1900
• Court: Virginia Supreme Court

98 Va. 515

36 S.E. 992

BURDINE.

v.BURDINE'S EX'R et al.

Supreme Court of Appeals of Virginia.

Sept. 13, 1900.

WILLS—CONTRACT TO DEVISE—VALIDITY—ENFORCEMENT—CONSTRUCTION— EVIDENCE—DOWER.

1. Emancipated slaves (mother and daughter) remained in the service of their former master until a short time before he gave them a bond conditioned that he would devise certain real and personal property, definitely described, "provided they would return and live and remain with" him and his wife during their natural lives. Held, in an action brought after his death to compel his personal representatives to convey and deliver the property, that the contract was sufficiently definite, both as to the property to be devised and the services to be performed.

2. Parties who have complied with the terms and conditions of a contract to devise property to them are entitled to specific performance thereof, though they did not sign it.

3. A master contracted to devise property to his former slaves (mother and daughter), who had been emancipated, provided they would live and remain with him and his wife during their natural lives. Held, that the daughter's right to the property to be devised to her depended upon the performance of the agreement on her part, and not on the duration of the life of her mother, who died before the master.

4. Where a master contracted to devise property to a former slave, who had been emancipated, provided she would remain in his service during his life, and then retained her in his service until he died, notwithstanding her misconduct, for which she might have been discharged, he thereby condoned her acts, and she was entitled to the property.

5. Evidence that illicit relations had existed between the parties to a contract to devise property, before it was made, was insufficient to show that the contract was founded on an immoral consideration, where the contract purported to be for future services which were lawful, and which were rendered.

6. A widow is not entitled to dower in land which her husband had agreed to devise to another before his marriage.

Appeal from circuit court, Russell county.

Bill in equity by Nancy Burdine against N. E. Burdine's executor and others. Prom a decree dismissing complainant's bill, she appeals. Reversed.

White & Penn, Chapman & Gillespie, and Bailey, Price & Byars, for appellant.

E. S. Finney and J. C. Gent, for appellees.

BUCHANAN, J. The record shows that in the year 1883 N. E. Burdine, of Russell county, and two of his former slaves. Roena and Nancy Burdine, entered into a contract evidenced by a writing put upon record, which is in the following words:

"Know all men by these presents, that I, N. E. Burdine, of the county of Russell and state of Virginia, am held and firmly bound in the sum of ten thousand dollars to Roena and Nancy Burdine, colored, of the same county and state.

"The conditions of the above bond are as follows: That I, N. E. Burdine, will make or cause to be made a good will to the land that I purchased of Christopher Frick, and reference can be had to said deed; the said land to be divided between the two parties last named as follows: Roena to have the land running from John Alderson's east, commencing at a water gap; thence up the bluff through a sugar orchard, and with the top of Cedar Ridge, in the direction of Clinch Mountain, as far as said land extends, and with the lines of same to the lands of Barnett Reynolds, dec'd, and J. W. Darton's land to the public road, and with the same to the beginning, except four acres, including the Lastly house. And Nancy Burdine, colored, daughter of Roena, is to have four acres last named, and all of said tract east of Cedar Ridge, and all north of the public road. I also give to Roena Burdine, colored, one-fourth part of the stock and of the grain and meat, &c, and growing crops, that may be on the farm at my death; all the household and kitchen furniture at said farm. I also give to her my bank stock, amounting to one thousand dollars, in the Bank of Abingdon.

"And I give to Nancy Burdine five hundred dollars cash, all this property and cash to pass to the other parties by will at my death, provided they live and remain with myself and wife during our natural lives; and, in the event that Roena Burdine should die first, she is to have the bank stock mentioned above; and provided, further, that she return to my home at once, and remain, as above stated. I furthermore bind myself to treat both parties with kindness and respectability, they treating me and my wife in like manner.

"In witness whereof, I have hereunto set my hand and seal this 6th day of April, 1883.

"N. E. Burdine. [Seal.]"

From the close of the Civil War, which resulted in the emancipation of Roena and her daughter Nancy, they had remained with or in the service of their former master until a short time before the said agreement was entered into, when they determined to quit his service and remove to Washington county. The mother did leave, taking with her her own and a part of her daughter's personal effects; but the latter, on account of the severe illness of her old mistress, had remained, and was still in his service when the contract sued on was made. The mother had been a trusted and faithful servant, who for many years had been, on account of the feeble health of Mrs. Burdine, charged with the oversight and management of much ofthe work connected with the home and the farm, usually looked after by the farmer's wife. The daughter had been brought up in the home of Mr. Burdine and wife, who were childless, and treated more like a child than a servant. Among her duties was that of caring for Mrs. Burdine, who had been for many years subject to some chronic disease.

In a few days after the mother quit Mr. Burdine's service, he set about, directly and through others, to secure her return to his home, and to get her and her daughter to continue to live with them, and succeeded in getting them to agree to do so upon the terms stipulated in the writing sued on.

The daughter, after setting out in her bill the agreement with herself and mother, her construction of it, and the circumstances under which it was made, alleged that, pursuant to the agreement, her mother did at once return to Mr. Burdine's, and they together lived with and served him and his wife until the death of her mother, which was in the year 1885, and that after the death of the latter she continued to live with and serve them until his wife's death, and afterwards until his death; that she did not live all the time at the home of Mr. Burdine, for the reason that after the death of her old mistress Mr. Burdine married again, and, the second wife not desiring her to live at the house with them, he moved her to one of his farm houses, where she remained in his employment and rendered him valuable services until his death; that, she and her mother having done and performed all they were required to do under the agreement, it became the duty of Mr. Burdine to keep and perform it on his part; that, having failed to make a will and give them the property mentioned, as he had agreed to do, it became the duty of his representative and heirs to deliver and convey the property mentioned in the agreement to the complainant and her mother's heirs and representatives, according to their respective rights, and this she prayed the court would compel them to do.

Strictly speaking, an agreement to dispose of property by will cannot be specifically enforced—not in the lifetime of the party, because all testamentary papers are, from their nature, revocable; not after his death, because it is no longer possible for him to make a will. Yet courts of equity can do what is equivalent to a specific performance of such an agreement, by compelling those upon whom the legal title has descended to convey or deliver the property in accordance with its terms, upon the ground that it is charged with a trust in the hands of the heir at law, devisee, personal representative, or purchaser with notice of the agreement, as the case may be. 3 Pars. Cont. (6th Ed.) § 406; Hale v. Hale, 90 Va. 728, 730, 19 S. E. 739.

Several grounds of defense are relied on. The first is...