Gibson v. Crawford
| Decision Date | 16 December 1932 |
| Citation | 56 S.W.2d 985,247 Ky. 228 |
| Parties | GIBSON et al. v. CRAWFORD. |
| Court | Kentucky Court of Appeals |
Rehearing Denied March 7, 1933.
Appeal from Circuit Court, Pulaski County.
Suit by Kate C. Crawford against M. H. Gibson and others. Judgment for plaintiff, and defendants appeal.
Reversed with directions.
Virgil P. Smith, Ben V. Smith & Son, and James Denton, all of Somerset, for appellants.
B. J Bethurum, of Somerset, for appellee.
By this appeal appellants Mrs. M. H. Gibson and the other heirs at law of A. J. Crawford, deceased, who were defendants below are seeking a reversal of a judgment in favor of appellee, Mrs. Kate C. Crawford, plaintiff below, in which it was held that the latter is the owner and entitled to the possession of all property owned by A. J. Crawford at the time of his death or to the equivalent thereof in cash; and that appellants took same under a will of decedent, impressed with a trust, and subject to rights and interest of appellee acquired under a contract alleged in her petition.
The alleged facts on which appellee bases claim to the relief sought in substance and effect are: On April 17, 1922, appellee and her husband entered into a verbal contract and agreement to make and execute mutual wills whereby, upon the death of either, the survivor should receive all the property, real and personal, of the decedent, and in conformity with such agreement, A. J. Crawford did execute a will whereby he devised and bequeathed to appellee in fee his entire estate, both real and personal. At the same time and with a purpose to carry out her part of the agreement, appellee likewise executed a will devising and bequeathing to her husband in fee her entire estate, both real and personal. The two wills were put away and kept in the home of the parties until after the death of Mr. Crawford in March, 1930, when Mrs. Crawford produced the will of her deceased husband in the county court and it was duly admitted to probate. Thereafter, an instrument purporting to be a will of A. J. Crawford, dated September 22, 1925, was offered for probate, whereupon the order probating the former will was set aside and another order entered admitting the later instrument to probate as the last will and testament of deceased. By the latter will, after the usual formalities of revoking former wills and directing payment of deceased's debts, it was provided that the residue of his estate of every nature and character be divided and distributed in accordance with the statutes of descent and distribution as in cases of intestacy. Appellee and her husband were each possessed of separate estates of a value of $40,000 or more, that of the husband consisting almost entirely of real estate. Appellee had no notice or knowledge that her husband intended to or had changed his will until the second will was offered for probate. She further alleges that by reason of the contract made between her and her husband and the execution of the mutual wills to carry same into effect, she acquired a lien upon the property owned by her husband and same was from that date held by him in trust for her benefit, which trust became active and her right and title thereto became vested at his death; that under the attending circumstances, her husband by reason of the execution of the mutual wills was without authority to revoke same by a later will so as to defeat or avoid his contract to devise his estate to her, or to vest title to his property in another beneficiary by his will dated September 22, 1925. The two wills executed by Mr. Crawford are fully set forth in the petition.
The adult defendants and the infant defendants by their guardian ad litem demurred to the petition, and by answer defendants, other than the infants, denied that mutual wills were executed by appellee and her husband in pursuance to an agreement entered into between them by which each was to devise his property to the other, or that such agreement was ever entered into between them.
The guardian ad litem for the infants by answer alleged that the property of appellee and her husband consisted largely of real estate and that the personal property owned by deceased at his death was no more than sufficient to pay his debts and the expense of settling his estate; that if the parties entered into a contract as alleged in plaintiff's petition, same was within the statute of frauds, and since not in writing, was not binding upon either of the parties.
By reply, the affirmative matter in the answer of the guardian ad litem was controverted, and on the issues thus made, the case went to trial with the result hereinbefore indicated.
Counsel for appellants maintain that a contract to devise real estate is within the statute of frauds and to be enforceable must be in writing; that mutual wills executed pursuant to an oral contract are revokable and that one of the parties to the agreement may make a subsequent valid will which will be entitled to probate; that the execution of mutual wills to carry out an oral agreement to devise real estate, and made simultaneously with such an agreement, is not a sufficient writing to satisfy the statute of frauds; that the contract in the case at bar is not one that equity will enforce. On all these propositions, counsel for appellee, as a matter of course, takes the contrary view.
Controversy is made as to the competency of appellee as a witness, the sufficiency of the evidence to establish the alleged contract, and as to whether or not appellee had notice of appellant's intention to revoke his will made under the alleged agreement. However, under the conclusions reached by the majority, these questions may be disregarded and the case treated as though appellee had sustained her allegations by uncontradicted proof.
In passing to a consideration of the questions presented, it may be noted that counsel for appellants argue that a party intending to take advantage of the statute of frauds may raise the question by demurrer or by a general denial. While the answer of defendants, other than the infants, does not specifically plead and rely on the statute of frauds, they entered a general demurrer to the petition, and, as already indicated, made a general denial of the allegations with respect to the contract. Perhaps there was contention over this question in the court below, but none is made by appellee here. The question as to whether a contract for the sale of lands is within the statute of frauds may be raised by demurrer. Cornett v. Clere, 193 Ky. 590, 236 S.W. 1036, 22 A.L.R. 720; Simpson v. Peavyhouse, 207 Ky. 155, 268 S.W. 814; Nugent v. Humpich, 231 Ky. 122, 21 S.W.2d 153. Or under a general issue or a general denial as to the execution of the contract alleged. Klein v. Liverpool, etc., Ins. Co., 57 S.W. 250, 22 Ky. Law Rep. 301; Johnson v. Broughton, 183 Ky. 628, 210 S.W. 455.
Section 470, Kentucky Statutes, in so far as pertinent provides: "No action shall be brought to charge any person-- *** Upon any contract for the sale of real estate. ***" A contract to devise real estate is regarded and treated by this court and by courts generally as in the nature of a contract for the sale thereof and, as such, comes within the quoted provision of our statute relating to contracts for the sale of land. Waters v. Cline, 121 Ky. 611, 85 S.W. 209, 750, 27 Ky. Law Rep. 479, 586, 123 Am.St.Rep. 215; Walker v. Dill's Adm'r, 186 Ky. 638, 218 S.W. 247; 25 R.C.L. 585, § 189, and cases cited in note 18 thereunder.
As a general proposition it has been uniformly held in this state and in practically every other jurisdiction that a parol contract to devise real estate comes within the inhibition of the statute of frauds and therefore an action for its enforcement cannot be maintained. Gernhert v. Straeffer's Ex'r, 172 Ky. 823, 189 S.W. 1141; Waters v. Cline, supra; Walker v. Dill's Adm'r, supra; Phillips v. Murphy, 186 Ky. 763, 218 S.W. 250; Broughton v. Broughton, 203 Ky. 692, 262 S.W. 1089; Quirk v. Bank of Commerce & Trust Co., 244 F. 682, 157 C.C.A. 130; Gould v. Mansfield, 103 Mass. 408, 4 Am.Rep. 573; Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 928, 43 A.L.R. 1010; McClanahan v. McClanahan, 77 Wash. 138, 137 P. 479, Ann.Cas. 1915A, 461; Hale v. Hale, 90 Va. 728, 19 S.E. 739; Allen v. Bromberg, 163 Ala. 620, 50 So. 884; Pond v. Sheean, 132 Ill. 312, 23 N.E. 1018, 8 L.R.A. 414; Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767, 6 L.R.A. (N. S.) 703, 8 Ann.Cas. 112; Loper v. Sheldon's Estate, 120 Wis. 26, 97 N.W. 524; 27 C.J. 208, 209, and 25 R.C.L. 585, and cases cited.
While counsel for appellee gives recognition to the general rule as above stated, it is in effect argued that where mutual reciprocal wills are executed in the circumstances shown here, the promise of one of the parties constitutes a consideration for the promise of the other; and that after the execution of the wills, a binding and valid contract subsisted which could not be canceled or set aside except by mutual consent of both parties; and that deceased having revoked his will made pursuant to their agreement by a later will, she is entitled in equity to the relief granted below because she faithfully carried out her agreement by executing her will in conformity therewith which was not revoked before the death of her husband; and further that the contract may be enforced after the death of her husband by fastening a trust upon the property which he agreed to devise to her in the hands of the heirs, devisees, or others holding same.
As a matter of first impression, it appears that there is a great conflict of authorities dealing with the question of contracts to devise lands. By far the greater number of cases are dealing with...
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