Chitwood. v. Collins., (CC 626)

• Decision Date: 30 April 1940
• Docket Number: (CC 626)
• Citation: 122 W.Va. 267
• Parties: Helen E. Chitwood et al. v. George R. Collins et al.
• Court: West Virginia Supreme Court

122 W.Va. 267

Helen E. Chitwood et al.

v.George R. Collins et al.

(CC 626)

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1940.

Decided April 30, 1940.

1. Wills

Upon the issue of devisavit vel non under Code, 41-5-11, the jurisdiction of the court is limited to that issue. The bar of the statute applies only to matters triable under that issue.

2. Frauds, Statute of

A contract primarily within the statute of frauds is taken out of it by the full performance of one of the parties to the contract.

3. Contracts

Donee beneficiaries of a contract to which they were not parties have a direct enforceable right under the contract.

4. Equity

Mere delay, unless it works a disadvantage to another, will not bar a suit in chancery.

Certified from Circuit Court, Kanawha County.

Suit by Helen E. Chitwood and others against George R. Collins and others for specific performance of a contract to execute a will materially different from will actually executed and probated. A demurrer to the bill was overruled, but a demurrer to a special plea was sustained, and the sufficiency of both bill and plea are certified to the Supreme Court of Appeals.

Affirmed.

Rummel, Blagg & Stone and J. M. Holt, for plaintiffs.

Brown, Jackson & Knight and Conley, Thompson & Neff, for defendants.

Hatcher, Judge:

The main question here is does Code, 41-5-11, limiting the period in which a will may be impeached to two years from the date of probate, apply to a suit brought after that period for the specific performance of a contract to execute a will with provisions materially different from the will actually executed and probated.

The essence of the bill is that Justus Collins and his wife Lucy agreed orally in 1910 to execute and did execute mutual wills disposing of their separate estates, and containing like provisions for their children and other like provisions for their grandchildren; that Mrs. Collins died in 1933 leaving the will of 1910; that Mr. Collins died in 1934 leaving not the will of 1910, but one executed in 1933, materially variant from the agreement of 1910, and greatly prejudicial to the rights of these plaintiffs, who are grandchildren of Mr. and Mrs. Collins; and that plaintiffs would have the agreement specifically enforced, and a trust impressed upon the estate of Mr. Collins in their favor. His will was probated in 1934; this suit was instituted more than three years after the order of probate. A demurrer to the bill was overruled; a demurrer to a special plea raising the provisions of Code, 41-5-11, was sustained; and the sufficiency of both bill and plea certified here.

The statute in question provides that a person not a party to the probate proceedings may file within two years from the judgment or order of probate, a "bill in equity to impeach or establish the will, on which bill, if required by any party, a trial by jury shall be ordered to ascertain whether any, and if any how much, of what was so offered for probate, be the will of the decedent. * * * If no such bill be filed within the time prescribed, the judgment or order shall be forever binding."

Counsel for plaintiffs take this position: "The present suit is not the proceeding contemplated in the section quoted above. That proceeding is essentially a probate proceeding and leads to an issue devisavit vel non; it can perform no other function. It relates to an issue with which we are not concerned in this suit. * * * The suit now before the Court is of an entirely different character. * * * It is a suit based solely upon the contract made by Justus Collins in his lifetime to dispose of his property by will in a certain manner. The remedy sought is in the nature of specific performance of that contract. The enforcement of plaintiff's rights could not have been had in the probate court, nor in any proceeding to impeach or to establish his will." To meet that position, counsel for defendants say: "While the plaintiffs assert that their suit is to compel specific performance of an alleged contract and to impress a trust upon the property of Justus Collins, instead of a proceeding under this statute, yet it is submitted that the very gravamen of their action is to impeach the last will and testament of Justus Collins to impair the validity and effect of his will and to substitute a different disposition of his property and estate from that provided for under his will. Such a suit, in whatever form brought or however adroitly framed, is in substance a contest of the...