Davidson v. Davidson

• Decision Date: 30 September 1913
• Citation: 79 S.E. 998,72 W.Va. 747
• Parties: DAVIDSON v. DAVIDSON et al.
• Court: West Virginia Supreme Court

79 S.E. 998

72 W.Va. 747

DAVIDSON v. DAVIDSON et al.

Supreme Court of Appeals of West Virginia.

September 30, 1913

Submitted June 7, 1912.

Rehearing Denied Nov. 14, 1913.

Syllabus by the Court.

A parol contract between an unmarried woman and her seducer, a man of large property, shortly after the birth of her child, upon consideration that if she would not prosecute him for bastardy he would "provide for her and her child by will and that he would make the same provision for them as if he were married" to her, considered in the light of the surrounding facts and circumstances, is supported by a sufficient consideration and is sufficiently definite and certain in terms, to be binding on his estate and enforceable.

An oral contract to make a will, if certain and definite in its terms, and upon sufficient consideration, if equitable, is valid, and enforceable against the estate of a decedent, as any other valid contract.

Contracts of this character, however, are viewed by courts with suspicion, are not favored, and to be enforceable must be upon sufficient consideration, be equitable, and definite and certain in their terms, and clearly proven.

Appeal from Circuit Court, Monroe County.

Bill by William A. Davidson, administrator, against George T Davidson and others. Decree for plaintiff, and defendants French Shultz, his next friend, and others appeal. Affirmed.

J. W Arbuckle, of Lewisburg, and G. C. Osborne, of Keenan, for appellants.

Sanders & Crockett, of Bluefield, and J. L. Rowan and Clark & Keadle all of Union, for appellee.

MILLER J.

Appellants Susan Shultz and French Shultz, an infant, by Susan Shultz, his next friend, intervened by petition in the suit by plaintiff to convene the creditors and marshal the assets of C. H. Davidson, deceased, and because of deficiency of personal assets, to obtain a decree for the sale of sufficient of decedent's lands to pay creditors in full.

French Shultz, as the petitions show, is the illegitimate son of Susan Shultz, by the deceased C. H. Davidson. The object of the petitions was to enforce specific performance of an alleged contract between Susan Shultz and said Davidson in his life time, made for her own and the benefit of her infant son, as it is alleged in consideration of her forbearance to sue Davidson for breach of promise of marriage and in bastardy proceedings proposed or threatened by her.

According to her individual petition the alleged contract between petitioner and Davidson was, substantially, that said Davidson, being at the birth of her child possessed of a large estate, and being desirous of concealing from his father the paternity of the child, for fear that his father would disinherit him, shortly after the birth of the child, promised and agreed with her, in consideration that she would not institute such bastardy proceedings "to provide for her and the child by will and that he would make the same provision for them as if he were married to petitioner." She alleges that decedent reiterated this promise to petitioner's mother and to her sisters, "telling them to tell and assure her for him that he would provide for her and her child, if she would not swear the child to him." She further alleges that in consideration of said promises and the love and affection had for and confidence and trust reposed in him she abstained from bringing suit or taking any action in the courts against decedent, and so continued and remained true to him up to the time of his death.

Another allegation of her petition is that "in pursuance of this contract and agreement the said C. H. Davidson executed a will and in it made provision for petitioner and left to her said son *** the sum of $10,000 of which said will he duly informed this petitioner"; "that afterwards he destroyed this will and declared his intention of increasing this legacy to the sum of $30,000, but if he made another will it has not been found." She charges "that at the time the said C. H. Davidson destroyed said will, he was not in a mental condition to know or understand what he was doing." The petition contains a charge that by reason of said contract to provide for her, as if married to him, petitioner has the right to charge his estate with a large sum, to-wit one third of the value of said estate for her life.

The prayer of the petition is that the personal representatives and heirs of decedent be treated as trustees holding for her benefit the estate of which the said C. H. Davidson died seized.

In the petition of the infant petitioner, by his mother as next friend, the inducement and consideration for the alleged contract are stated substantially as in her petition, and the contract alleged to have been made on behalf of petitioner coincides in part with the contract as alleged in her petition, as follows: "That the said Charles H. Davidson then promised the mother of this petitioner that if she would not institute the said proceedings against him that he would provide for her and this petitioner by will the same as if they were married." But following that allegation is this charge: "That he afterwards promised her to leave this petitioner $15,000.00 by his will, if she would not sue him, and repeatedly sent these promises to her by others," and that he repeated this proposition to petitioner's grandmother and aunts.

The prayer of this petition is that petitioner "be allowed his claim of $15,000.00 as aforesaid against the estate of Chas. H. Davidson, deceased."

There was a demurrer to these petitions by the adult defendants, who also answered, putting in issue every material allegation therein; and the infant defendants also answered formally by their guardian ad litem, and on final hearing on pleadings and proofs taken and the report of the master commissioner, and exception thereto, by defendants, the court below denied petitioners any relief and dismissed their petitions out of the cause, and that is the decree which they seek to have reversed on this appeal.

The commissioner in his report found that C. H. Davidson agreed with Susan Shultz to provide for her in his will a comfortable support for her life time, provided she would not sue him for breach of promise of marriage or bastardy, "that it will take $181.25" per year, and which on the basis of her life expectancy, 10.705 years, would amount to $1,940.28, which sum he found in her favor, to be paid out of decedent's estate as a general lien; and he found in favor of the infant petitioner the sum of $15,000.00 to be likewise paid out of the estate of decedent.

It is conceded by counsel that a contract to make a will, if certain and definite in its terms and upon sufficient consideration, is valid, and like any other contract, and that by the same rules it will be enforced. For this there is abundant authority. Page on Wills, §§ 70-83; Gardner on Wills, Ch. IV,§§ 19-21; 1 Underhill on the Law of Wills, §§ 285-294; Johnson v. Hubbell, 10 N.J.Eq. 332, 66 Am.Dec. 773, and note, p. 783; Rice v. Hartman, 84 Va. 251, 4 S.E. 621; Cox v. Cox, 26 Grat. (Va.) 305, Anno. 107, and note. The law in such cases is the same, substantially, as in the cases of parol contracts for deeds. Frame v. Frame, 32 W.Va. 463, 9 S.E. 901, 5 L.R.A. 323; Burkholder v. Ludlam, 30 Grat. (Va.) 255, Anno. 94, and note, 32 Am.Rep. 668; Townsend v. Vanderwerker, 160 U.S. 171, 16 S.Ct. 258, 40 L.Ed. 383.

It is practically conceded, also, that the consideration for the alleged promise set forth in the petitions would be sufficient to support a valid promise by decedent to provide for petitioners by will. So the controversy here is narrowed to three questions, namely: First, is the contract alleged definite and certain so as to be enforceable? Second, if it is, is the contract proven as alleged, or does the proof show any contract with decedent which is enforceable? Third, if a valid contract is alleged and proven, is it affected by the statute of frauds, or taken out of the statute of frauds by part performance of the contract by petitioner Susan Shultz?

On the first proposition, according to the petitions, the alleged promise of decedent, for the consideration alleged, was to provide for petitioner and her child by will, making the same provision for them as if he was married to her. What is the meaning of such a promise? Does it amount to a promise by decedent, as the petitions imply, to will to petitioner all the property of which he might die seized? If so, in what proportion? Or does it mean such parts of decedent's estate as petitioners would take, if marriage had followed and without will? Decedent, if married, might have disposed of his estate by will so as to wholly cut out his child, but not his widow. Would the alleged contract have prevented such disposition of his estate? These are some of the questions naturally presented in connection with the alleged contract. Mr. Page in his work on wills, on the subject of the certainty of such contracts, referring in foot note to the decisions, gives illustrations of contracts which have been held invalid and of others held to be valid, as follows: "A contract to bring up a child, educate it and make it the 'heir' of promisor has been held to be unenforceable in Kentucky. And an ante-nuptial contract by which the husband agrees to adopt his wife's children by a former marriage as his 'heirs' has been held not to be a promise to make a devise of the husband's property to them, but to leave the husband with the same power of excluding them from a share in his Illinois realty that he would have had of excluding his own children. A similar contract has been held valid and enforceable in Missouri. Or the promisor may definitely intend to make some testamentary disposition of his property in...