Havird v. Schissell, 18821

• Decision Date: 03 September 1968
• Docket Number: No. 18821,18821
• Court: South Carolina Supreme Court
• Parties: Corrie Lei HAVIRD, Appellant, v. Isadore SCHISSELL, as Executor of the Estate of Lee E. Havird, Respondent.

Page 877

162 S.E.2d 877

251 S.C. 416

Corrie Lei HAVIRD, Appellant, v. Isadore SCHISSELL, as Executor of the Estate of Lee E Havird, Respondent.

No. 18821.

Supreme Court of South Carolina.

Sept. 3, 1968.

Floyd D. Spece, West Columbia, Ryan C. Shealy, Cayce, for appellant.

James N. Parr, R. Aubrey Harley, Newberry, for respondent.

BUSSEY, Justice.

In this action in equity the plaintiff seeks to enforce a contract alleged to have been made between her and her deceased brother, Lee E. Harvird, whereby each agreed to make wills devising to the other their entire respective estates. The cause was not referred but tried by the court and plaintiff appeals from an adverse decree.

In the year 1961, plaintiff, her brother, Lee E. Havird, and her sister, Minnie Havird, all unmarried, were the sole survivors of a family of five children. They owned, as tenants in common, the family home where they were reared, with plaintiff owning a one-fifth interest therein, and the other two each owning a two-fifths interest therein. Lee Havird at the time owned certain other property of substantial value. The record contains abundant evidence to reflect that during the year 1961 the three parties were mutually of a mind to and did, on separate dates during that year, execute mutual wills wherein each devised his or her estate to the other two or the survivor of them.

Minnie Havird died on the 21st of March 1963, leaving in force her 1961 will, leaving only a small personal estate and her two-fifths interest in the family home, devised equally to plaintiff and her brother. Following her death, Lee Havird, on October 15, 1963, conveyed to the plaintiff, Corrie Lei Havird, for $5.00, love and affection, his then three-fifths interest in the family home. On or about December 17, 1964, the plaintiff and her brother, Lee Havird, went together to an attorney's office where they had prepared and executed mutual wills wherein they devised their entire respective estates, each to the other. Lee Havird died on March 15, 1965, but prior to his death executed another later will under which plaintiff received nothing.

It is plaintiff's contention that the mutual wills made by the three parties in 1961 were made in accordance with a binding oral contract between the parties, and that the mutual wills made by her and Lee Havird in December 1964 were made in compliance with, and furtherance of the contract entered into in 1961. Although there is evidence as to the wills allegedly made by Lee Havird in 1961 and in December 1964, neither of them, nor copies thereof, were produced in evidence. Neither of the wills made by the plaintiff, nor that of Minnie Havird, reflect that they were made pursuant to or in accordance with a contract.

This court has held in cases too numerous to mention that when an oral contract to make a will is relied upon, it is necessary that such contract be established by clear, cogent and convincing evidence which carries irresistible conviction to the mind that such a contract actually existed and that the parties thereto understood and acquiesced to its terms. The evidence in the instant case simply fails to meet the foregoing test.

The case of Looper v. Whitaker, 231 S.C. 219, 98 S.E.2d 266, and the authorities therein cited are clearly controlling and...