Hale v. Hale 1

• Decision Date: 14 June 1894
• Citation: 19 S.E. 739,90 Va. 728
• Court: Virginia Supreme Court
• Parties: HALE v. HALE et al.1

19 S.E. 739

90 Va. 728

HALE

v.HALE et al.¹

Supreme Court of Appeals of Virginia.

June 14, 1894.

Wills—Revocation by Marriage—Contract to Make—Statute op Frauds—Specipio Performance—Estoppel.

1. The plaintiff and her sister agreed to make mutual wills, so that the survivor would get the whole estate, which was done accordingly. The sister subsequently married, and died without issue, in the belief that her will was valid. The plaintiff allowed her will to stand in full force as originally written. Held, that under section 2517, Code Va. 1887, the sister's will was revoked by her marriage, regardless of her wishes or intention in the matter.

2. A person may by contract bind himself to dispose of his estate by will in a particular way, and such a contract, in a proper case, will be specifically enforced in equity.

3. A parol agreement to devise land is within the statute of frauds.

4. The memorandum in writing called for by the statute of frauds must be such as can be understood without recourse to parol proof, and this requirement is not met when the only memorandum is one of two reciprocal wills, neither of which alludes to the other, or refers to any other writing.

5. Making a will upon condition that the devisee make a reciprocal will in favor of the devisor is not such a part performance of a contract as will cause equity to specifically enforce the agreement.

6. The mistaken view of parties as to the legal effect of a marriage upon a previous willcannot be held to estop the heirs of the person making it to assert its invalidity, especially where there is no fraud, and no one has altered his position to his disadvantage.

Appeal from circuit court, Franklin county; S. G. Whittle, Judge.

The appellant, Mary D. Hale, filed her bill for the specific enforcement of a contract, and from a decree against her she appeals. Affirmed.

E. C. Burks, for appellant.

P. H. Dillard and R. G. H. Kean, for appellees.

LEWIS, P. Appeal from decree of circuit court of Franklin county, rendered October 8, 1891, the case being as follows: The appellant, Mary D. Hale, filed her bill for the specific performance of an alleged parol contract. Bill states that the plaintiff and her sister, Janey Hale, agreed, in 1885, to make mutual wills, so that the survivor would get the whole estate, real and personal, of the one who should die first, and that each thereupon made a will in the other's favor, in conformity with the agreement; that in October 1888, the said Janey intermarried with Dr. Carter Burkley, and soon afterwards died, without issue born alive; that some time prior to her marriage she was advised, upon consultation with an attorney, that her marriage would have no effect on her will, and that with this desire and belief, in which the plaintiff shared, she died, and for that reason never republished the will after her marriage; that for the same reason the plaintiff has allowed her own will to remain in full force as originally written, so as to carry out the agreement; that from the date of the wills until the death of Mrs. Burkley they were kept together in a trunk used jointly by the plaintiff and Mrs. Burkley, from which they were taken after the death of the latter. The bill also states that the execution of one will was the consideration for the other, and that the two, read together, show the contract between the parties, and the consideration for the same; that the plaintiff has fully performed the contract on her part, and that both she and Mrs. Burkley always believed that the latter had performed it on her part. And the prayer of the bill was that the contract be specifically enforced by requiring the heirs at law of Mrs. Burkley, or some one for them, to convey to the plaintiff the real estate that descended to them at her death. There was no contest as to the personalty. There was a demurrer to the bill, which was sustained by the decree complained of.

1. The appellant properly admits that by force of the statute, now carried into section 2517 of the Code, the will of Mrs. Burkley was revoked by her marriage, regardless of her intention or wishes in the matter. But it is contended that the antecedent contract remains, and ought to be enforced. There is no doubt, notwithstanding a will is in its nature ambulatory until the testator's death, and cannot be made irrevocable, that a per son 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, in a proper case, will be specifically enforced in equity; that is to say, the property will be held 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, and a conveyance or accounting directed in accordance with the terms of the agreement. 3 Pars. Cont. 406; Schouler, Wills, § 454; Izard v. Middleton, 1 Desaus. 116; Rivers v. Rivers, 3 Desaus. 190; Parsed v. Stryker, 41 N. Y. 480; Mundorff v. Kilburn, 4 Md. 459; Johnson v. Hubbell, 10 N. J. Eq. 332. In a note to the last-mentioned case (60 Amer. Dec), where the cases are collected, the annotator (at page 784) says: "It is not only in harmony with sound principle that a person may make a valid agreement binding himself to dispose of his property in a particular way by last will and testament, but it is supported by an almost unbroken current of authorities, both English and American;" and substantially the same principle was recognized in Rice v. Hartman, 84 Va. 251, 4 S. E. 621.

2. But a parol agreement to devise real estate is within the statute of frauds, which, in Virginia, so far as it is pertinent to the present case, enacts that "no action shall be brought * * * upon any contract for the sale of real estate, or for the lease thereof for more than a year * * *, unless the contract * * * or some memorandum or note thereof, be in writing and signed by the party to be charged thereby, or his agent; but the consideration need not be set forth or expressed in the writing, and it may be proved (where a consideration is necessary) by other evidence." Code, § 2840. In the case at bar the agreement sought to be enforced was a verbal one. and the defense of the statute is set up as one of the grounds of demurrer. It is not contended in support of the demurrer that the alleged agreement is void, but only that, If there was any such agreement, it is not enforceable, consistently with the statute, in a court of justice. On the other hand, the appellant contends that the case is not within the statute, because the wills in question are sufficient memoranda of the agreement to satisfy the requisition of the statute. But can this view be maintained? We...