Gray v. Marino

• Decision Date: 07 July 1953
• Docket Number: No. 10529,10529
• Citation: 138 W.Va. 585,76 S.E.2d 585
• Court: West Virginia Supreme Court
• Parties: GRAY, v. MARINO et al.

Page 585

76 S.E.2d 585

138 W.Va. 585

GRAY, v. MARINO et al.

No. 10529.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1953.

Decided July 7, 1953.

Syllabus by the Court.

1. Evidence to establish a parol contract to devise real estate must be full, clear and convincing.

2. Specific performance of a contract is not a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances of the case.

3. Equity will not lend its aid to specifically enforce a parol agreement, even though the terms and proof thereof are clear and unambiguous, unless from all the facts and circumstances the court is convinced that such agreement is fair, just and free of suspicion.

4. A holographic will, made in favor of the person asserting a parol agreement to devise real estate and subsequently revoked, will be considered by a court as some evidence in support of the alleged parol agreement.

5. 'A court in chancery is not bound to accept as true the testimony of an uncontradicted witness, whose admissions, on cross-examination, and other conceded facts in the record, tend to make such testimony questionable.' Napper v. Rice, Syl. Pt. 1, 127 W.Va. 157 .

6. A court of equity views with suspicion a suit to require specific performance of a parol agreement to devise real property and in such case will look not only to the direct proof adduced, but to the surrounding circumstances, as shown by the evidence, in determining whether or not such relief will be granted.

7. Where the plaintiff's conduct and other facts and circumstances of the case are inconsistent with the contract sought to be established, the plaintiff had not proved such contract by clear and convincing evidence despite testimony by other witnesses that such contract was in fact entered into.

Charles C. Wise, Jr. and E. Glenn Robinson, Charleston, and James H. Wolverton, Richwood, for appellants.

Claude H. Vencill, Summersville, and Mahan, White & Higgins, Fayetteville, for appellee.

BROWNING, Judge.

Floyd D. Gray instituted this suit in chancery in the Circuit Court of Nicholas County praying for specific performance of a verbal agreement to make a will. The bill alleges that in the month of October, 1947, Mrs. Myrtle Ritchie, a widow, promised plaintiff, Gray, that if he would move into her home and remain with her each night thereafter, for as long as she lived and remained in business, she would give him, by will, all of her property at her death. The bill then alleges his acceptance and full compliance with the obligations imposed upon him thereby; and sets forth that, upon her death, two wills were produced and probated, one dated May 13, 1948 in which he was named sole devisee and beneficiary, and another dated February 2, 1951, by which the property was given to the defendants.

The defendants demurred to the bill on the ground that the suit was barred by the Statute of Frauds and that the plaintiff had an adequate remedy at law, which demurrer was overruled by the court. The defendants then jointly answered denying the material allegations of the plaintiff's bill.

The cause proceeded to trial and at the conclusion of the evidence, the court entered its order granting the relief prayed for in the bill, from which order this Court granted an appeal on September 17, 1952.

The parties will be referred to in this opinion as plaintiff and defendants, the positions they occupied in the trial court.

The defendants seek a reversal of the decree of the circuit court upon the grounds that: (1) The plaintiff failed to prove the contract alleged by clear and convincing evidence; (2) the agreement is too indefinite to be enforceable; (3) the plaintiff failed to prove valuable consideration; (4) the contract sued upon is not equitable; and (5) the alleged verbal agreement upon which the suit is founded is unenforceable under the Statute of Frauds, Code 36-1-3. The plaintiff maintains that the verbal contract was clearly proved, and that the contract was not within the provisions of our Statute of Frauds inasmuch as: (a) the first will of Mrs. Ritchie was a sufficient note or memorandum in writing to meet the requirements of the statute; (b) there was performance by the plaintiff under the terms of the contract; and (c) the contract required services on the part of the plaintiff of a personal nature and peculiar character not measured by any pecuniary standard.

This Court will not reverse a decree of a trial court unless it is plainly wrong, without evidence to support it, or clearly against the preponderance of all of the evidence. 1 M.J., Appeal and Error, § 277; Hurley v. Hurley, 127 W.Va. 744, 34 S.E.2d 465; and numerous other West Virginia cases cited in the text above mentioned.

'A contract to make a will is controlled by the same rules and principles and enforceable as other contracts.' Turner v. Theiss, 129 W.Va. 23, 38 S.E.2d 369, 372. Jefferson v. Simpson, 83 W.Va. 274, 98 S.E. 212. There is no doubt, notwithstanding the ambulatory nature of a will, that a person may by a certain and definite contract bind himself to dispose of his estate by will in a particular way, and that such a contract is a proper case will be specifically enforced in equity. While, strictly speaking, an agreement to dispose of property by will cannot be enforced after the death of the promisor, courts of equity can do what is equivalent thereto by impressing a trust in favor of the promisee on the property in the hands of the heirs at law, personal representative or others who may claim title or be in possession thereof, which is the relief sought in this case, assuming that the plaintiff does not have an adequate remedy at law. However, a court of equity will grant relief by the specific performance of a contract to bequeath or devise property only where good conscience and natural justice are in accord with the enforcement of the agreement; and such a court scrutinizes closely the circumstances of an agreement to make a will and requires full and satisfactory proof of the fairness and justness of the transaction before lending its aid to the enforcement thereof. 57 Am.Jur., Wills, § 201.

'It is a well-established principle of equity that, in order to entitle one to specific performance, all the material provisions of the contract must be distinctly and clearly proven. Equity will not enforce a doubtful contract, for fear of doing a greater wrong by doing so than by leaving the parties to their legal remedy. Accordingly, * * * if it be parol, the proof must be so clear, cogent and convincing as to leave no doubt in the mind of the chancellor that the particular contract as averred was made, and its terms and conditions must be clearly shown. * * *' 17 M.J., Specific Performance, § 101; Kennedy v. Burns, 84 W.Va. 701, 101 S.E. 156; Cooper v. Cooper, 65 W.Va. 712, 64 S.E. 927.

In Davidson v. Davidson, 72 W.Va. 747, 79 S.E. 998, 1002, this Court said: 'We are bound by the rule that such contracts [parol agreements to devise and bequeath property] are viewed by courts with suspicion, are not favored, and to be enforceable must be upon sufficient consideration, and be equitable, and clear and definite in terms.' Furthermore, even where the terms of a contract to devise or bequeath property are clear, certain and unambiguous, specific performance is not a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances. 57 Am.Jur., Wills, § 201.

The plaintiff in this litigation is confronted with two statutes, both of which are actually rules of evidence. The first, Code, 36-1-3, reads as follows: 'No contract for the sale of land, or the lease thereof for more than one year, shall be enforceable unless the contract or some note or memorandum thereof be in writing and signed by the party to be charged thereby, or by his agent. But the consideration need not be set forth or expressed in the writing, and it may be proved by other evidence.' The second statute, often referred to as the deceased person's statute, Code 57-3-1, reads in part as follows: 'No person offered as a witness in any civil action, suit or proceeding, shall be excluded by reason of his interest in the event of the action, suit or proceeding, or because he is a party thereto, except as follows: No party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, insane or lunatic, * * *.' The defendants were likewise handicapped in presenting their evidence by the last quoted statute.

We must apply the facts in this cause to these well established legal and equitable principles to determine the rights of the parties, and this requires a rather detailed recitation of the evidence adduced at the trial.

Mrs. Ritchie, deceased, had, for a period of approximately eight years prior to 1947, resided in the Town of Gilboa, in Nicholas County, where she operated a place of business known as 'Uncle Tom's Cabin', and in the same building maintained her living quarters. Her husband died in 1945, and thereafter she continued to operate the business with the assistance of one of the defendants, Violet Legg, and others, until the autumn of 1947 when the plaintiff Gray came to live at the Cabin. At that time, he was thirty-four and she was fifty-eight years of age. The circumstances under which he came, with the exception of the testimony of Keith Nutter, are not clear, probably because of the limitation placed upon the parties by the deceased person's statute. The record does reveal that Gray had, prior to that time, been living approximately two and one-half miles south of Gilboa...