Hendrix v. Pique
| Decision Date | 22 December 1938 |
| Docket Number | 1 Div. 12. |
| Citation | 237 Ala. 49,185 So. 390 |
| Parties | HENDRIX v. PIQUE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.
Action in assumpsit by S. H. Hendrix against Ida Craft Pique, as executrix of the estate of John Craft, deceased. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
Alex. T. Howard, of Mobile, for appellant.
Gordon Leigh, Leigh & Gordon, of Mobile, for appellee.
This is a suit at law for a sum of money alleged to be owing plaintiff by virtue of a contract made by defendant's testate represented by a letter alleged to have been signed by him and given to plaintiff. The letter is as follows:
There were four counts to the complaint, the first three were the common counts. Number 4 was on the contract specially stated, and alleged, as amended, that the consideration of the contract was stenographic and secretarial services which he rendered decedent before and after the letter was given him.
Demurrer to this count was overruled.
The suit was tried on the general issue and plea of non est factum to count 4, without a jury, and a judgment was rendered for defendant, and plaintiff appeals.
The evidence was in conflict as to whether the signature of decedent to the letter was genuine. Many documents were offered and used for comparison of signatures and much evidence related to the details of the formation of the letters in his signature. There was objection made to the letter as evidence when all this had been done, and at the conclusion of it all, on the grounds as stated in the bill of exceptions: "That the paper offered in evidence is testamentary in its nature and is not attested or witnessed as required by law for the execution of testamentary instruments or wills, and upon the further grounds that it has not been shown that this instrument has ever been admitted to probate or record, and upon the further grounds that plaintiff has not made sufficient proof of the due execution and delivery of the instrument and it has never been proved that it was accepted or acted upon; and furthermore, upon the bottom of the letter are these words, 'answer me' and it has never been shown that there was ever any answer made to the proposition, accepting it as made; and upon the further grounds the complaint alleges that in pursuance of this letter he went ahead and did the work and there is no such proof to sustain the allegation in the complaint."
The court sustained the objection, and plaintiff excepted and assigned the ruling as error.
In addition to that assignment the others consist of the rulings sustaining objections to certain questions to plaintiff's witness McCorvey, and to plaintiff as a witness in his own behalf.
The bill of exceptions shows that documents were introduced in evidence for the purpose of comparing the handwriting with that of the signature to the letter, and those documents are not all set out in the bill of exceptions, and none of them are certified to us under rule 24.
If the question on this appeal hinged on a finding by the trial court that the signature was not genuine, we could not review the finding, though the bill of exceptions recites that it contains all the evidence, for it otherwise shows that all the evidence is not set out in it. Patton v. Endowment Dept., 232 Ala. 236, 167 So. 323; Missouri State Life Ins. Co. v. Stuckey, 224 Ala. 590, 141 So. 246.
But since the court sustained objection to the letter, if that ruling was erroneous, it will be necessary to reverse the judgment for defendant. And if the court erred in sustaining objection to certain evidence offered by plaintiff which was material, such error would work a reversal even though it be but cumulative.
The rule is that when a suit is tried by the court without a jury, and the evidence on a point is conflicting, and the court erroneously sustains objection to some of it which is material on that point, though cumulative, it is prejudicial error to the party offering it. Springer v. Sullivan, 218 Ala. 645, 119 So. 851.
But the first question which we think should be considered is whether the court erred in sustaining objection to the letter on any ground assigned, which we have set out in full. The first point or ground of objection, and which counsel in argument think was controlling in the mind of the trial judge, was that the letter is testamentary in nature and not duly attested to be sufficient as such, and has not been probated as a part of the will of decedent. The argument loses sight of the fact that a contract binding as such may be testamentary in form, though not witnessed as required of wills, and is to be performed at or after the contractor's death. It is said in Bolman et al. v. Overall, Ex'r, 80 Ala. 451, 2 So. 624, 625, 60 Am.Rep. 107: "Cases are frequent in which instruments have been construed to be partly testamentary and partly contractual; and, when based on a valuable consideration, a paper in form a will may, especially when delivered to a party interested, or to another for him, constitute legally and in fact an irrevocable contract." Citing Taylor v. Kelly, 31 Ala. 59, 68 Am.Dec. 150; Kinnebrew's Distributees v. Kinnebrew's Adm'rs, 35 Ala. 628.
The consideration of the testamentary contract there in question was for "past and future treatment." And it was pointed out that services rendered in mere expectation of a legacy are not sufficient. "There must be a contract, express or implied, stipulating for an agreed compensation by way of legacy or devise." It is also said that such a contract creates an equitable right in the nature of a trust enforceable against the personal representative of decedent, as a covenant to stand seized to the use of the promisee. There she had agreed to and did will everything except some specific items to the promisee in consideration of services and gave her the will so executed. Later the testator undertook to and did make another revoking that one. Her last will was probated. The court was dealing with the effect of the first as a contract, notwithstanding the probation of the second which also undertook to revoke the first. As a will the first was of course revoked. As a contract it was not affected. The rights of the legatee under the first will which was made pursuant to a contract for a valuable consideration remained in full force. As a contract, it is immaterial whether it is in writing and attested or verbal, (except as affected by the statute of frauds), or its form, whether that of a will, formal contract, or an informal expression which shows an unqualified obligation. But it must be upon a sufficient consideration.
Under this principle, if one in such manner agrees to provide a legacy out of his estate, or a certain sum so payable at his death, his personal representative succeeds to the estate of decedent, encumbered with a burden in the nature of a trust to pay the same as contracted by the decedent. Such a right being contractual is not affected by a will nor its probate. It leaves decedent while in life free to dispose of his property effective while he lives as he sees fit. But out of what he leaves which descends or is subject to his will, he has bound himself for a valuable consideration, effective against his personal representative, that his promisee shall have a stipulated sum. He has thereby created a trust on his descendible property to that extent. Those principles have been repeatedly reaffirmed. Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am.St.Rep. 46; Allen v. Bromberg, 147 Ala. 317, 41 So. 771; Walker v. Yarbrough, 200 Ala. 458, 76 So. 390; Taylor v. Cathey, 211 Ala. 589, 100 So. 834; Mayfield v. Cook, 201 Ala. 187, 77 So. 713; Poe v. Kemp, 206 Ala. 228, 89 So. 716; Richards v. Williams, 231 Ala. 450, 165 So. 820.
Appellee here relies upon Kinnebrew's Distributees v Kinnebrew's Adm'rs, supra, cited in Bolman v. Overall, supra, as holding to the contrary. It is certain that the court then did not so think, since it is cited in Bolman v. Overall. But it is apparent that the controlling difference is that in the Kinnebrew Case, supra, there was no substantial valuable consideration. Everything there declared is referable to that fact. Since that time the subject has been fully and repeatedly...
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...without merit. First, the objection states no proper ground for excluding the letters as evidence of the contract. Hendrix v. Pique, 237 Ala. 49, 185 So. 390, 394. Secondly, it overlooks direct and circumstantial evidence to the We now turn to what these letters and other evidence tend to p......
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