Jackson v. Copeland, s. 21424

• Decision Date: 09 November 1961
• Docket Number: Nos. 21424,21425,s. 21424
• Citation: 122 S.E.2d 573,217 Ga. 420
• Parties: Mary JACKSON, Executrix, v. Millard COPELAND, Jr. Bannie Mae LESTER v. Millard COPELAND, Jr.
• Court: Georgia Supreme Court

Page 573

122 S.E.2d 573

217 Ga. 420

Mary JACKSON, Executrix, v. Millard COPELAND, Jr.

Bannie Mae LESTER v. Millard COPELAND, Jr.

Nos. 21424, 21425.

Supreme Court of Georgia.

Nov. 9, 1961.

Syllabus by the Court.

The petition did not state a cause of action for specific performance of an alleged oral contract to make a will devising the property of the deceased, in consideration of services to be performed by the petitioner, and it was error to overrule the general demurrers to the petition.

No. 21424:

Jean E. Johnson, Sr., Marietta, for plaintiff in error.

G. Conley Ingram, Reed, Ingram & Flournoy, Marietta, for defendant in error.

No. 21425:

Edwards, Bentley, Awtrey & Bartlett, Scott S. Edwards, Jr., Marietta, for plaintiff in error.

Reed, Ingram & Flournoy, Conley Ingram, Jean E. Johnson, Marietta, for defendant in error.

HEAD, Presiding Justice.

Millard Copeland, Jr., filed an equitable petition against Mary Jackson, as executrix of the will of Janie Copeland, deceased, and Bannie Mae Lester, a devisee under the will of the deceased, for specific performance of an alleged oral contract to make a will devising to the petitioner all of the property, both real and personal, of the deceased. It was alleged that the deceased had approximately $7,339 on deposit in a bank. By amendment it was alleged that the fair and reasonable market value of the real property was $2,000, the value of the truck, $250, and the value of the furniture, $300. It was asserted that 'the value of petitioner's services under his agreement with Janie Copeland exceeds the value of said property, including the aforesaid money on deposit at the time of Janie Copeland's death.'

The separate general demurrer of each of the defendants was overruled, and each defendant filed a bill of exceptions assigning error on the judgment overruling the demurrer of such defendant.

'Specific performance is not a remedy which either party can demand as a matter of absolute right, and will not in any given case be granted unless strictly equitable and just. Mere inadequacy of price may justify a court in refusing to decree a specific performance of a contract of bargain and sale; so also may any other fact showing the contract to be unfair, or unjust, or against good conscience. And in order to authorize specific performance of a contract, its terms must be clear, distinct, and definite. A petition for specific performance which fails to allege a case authorizing the relief sought under the application of the above stated rules is subject to demurrer.' Shropshire v. Rainey, 150 Ga. 566(2) 104 S.E. 414; Savannah Bank & Trust Co. v. Hanley, 208 Ga. 34, 36, 65 S.E.2d 26.

The petition alleged that, in August, 1960, the deceased orally agreed with the petitioner 'in consideration of petitioner and his wife moving in with her and living with and taking care of her until her death, that all of her property, both real and personal, was to be willed to your petitioner at her death.' The allegations as to the performance of the contract were as follows: 'That, in consideration of this agreement between petitioner and said decedent, petitioner and his wife moved to Janie Copeland's home and began taking care of her and her property and lived with her there until she died on March 17, 1961. Petitioner further shows that in consideration of said agreement between him and the decedent, Janie Copeland, between the time they entered into said agreement and the date of her death, your petitioner contributed to the upkeep, maintenance, and operation of said property by his own labor and has improved said property by having said house wired for electricity, which cost your petitioner approximately $127, and petitioner also entered into a contract with the Cobb County Rural Electric Membership Corporation to pay the sum of $14.30 a month for electrical service to said house, and petitioner in general has expended labor in patching and fixing up the premises.'

The allegations of the petition do not show that the petitioner contracted to render personal, affectionate, and considerate attention and services to the deceased such as could not readily be procured elsewhere, nor does he allege that such services were in fact rendered. Therefore, the case does not fall within the rule that averments as to the value of services are unnecessary in cases involving virtual adoption or in contracts between near relatives where one goes into the home of the other, agreeing to nurse and give the other personal, affectionate, and considerate attention such as could not readily be procured elsewhere, and where the value of such services could not be readily computed in money. Johns v. Nix, 196 Ga. 417(3), 26 S.E.2d 526; Bowles v. White, 206 Ga. 433, 57 S.E.2d 547; Treadwell v. Treadwell, 216 Ga. 156, 115...