Jefferson v. Simpson
| Decision Date | 28 January 1919 |
| Docket Number | 3624. |
| Citation | 98 S.E. 212,83 W.Va. 274 |
| Parties | JEFFERSON v. SIMPSON. |
| Court | West Virginia Supreme Court |
Submitted January 21, 1919.
Syllabus by the Court.
Assumpsit is a proper remedy for a breach of contract to make a will.
A contract to make a will is controlled by the same rules and principles and enforceable as other contracts.
An agreement made singly or in connection with another to sacrifice an old home, to sell and dispose of one's property, and to remove to the home provided by the other party to the contract in order to furnish him companionship during the remainder of his natural life constitutes a sufficient consideration for his promise to make a will bequeathing to the promisee a sum certain out of his estate.
Such a contract is sufficiently definite and certain in its terms to be enforceable in a suit by the promisee against the executor of the promisor for damages for the breach thereof by the promisor.
A case in which the evidence is held sufficient to support a parol agreement to make a will.
Declarations of the promisor subsequent to the making of a contract to make a will, being against interest, are admissible in evidence, not as sufficient in themselves to prove the fact but as corroborative of the evidence of witnesses to the contract.
But evidence of contrary declarations made to other witnesses being self serving and not in the presence of the other party to the contract, are inadmissible.
The measure of damages in a suit for breach of a valid contract to make a will is the sum stipulated in the contract or the value of the property contracted for.
Error to Circuit Court, Marshall County.
Action by Martha Jefferson against J. C. Simpson, executor, etc. Demurrer to declaration overruled, judgment for plaintiff and defendant brings error. Affirmed.
J. C Simpson and Martin Brown, both of Moundsville, for plaintiff in error.
J Howard Holt, of Moundsville, for defendant in error.
MILLER, P.
Numerous points of error are relied on by defendant to reverse the judgment below against him for $3,980.00. The first is that his demurrer to the declaration and to each count thereof should have been sustained. There are six counts. The fourth and fifth are nothing more than the common counts in assumpsit, and as to which no defects are specifically pointed out, and we perceive none. But the remaining counts it is urged are bad in point of pleading, (1) because of want of averment of a sufficient consideration for the alleged promises on the part of the decedent Samuel Francis; (2) that the several statements of the contract pleaded are too indefinite, uncertain and inadequate to be enforceable, even in a court of equity.
The contract of decedent substantially alleged in each of the four counts under review is that in consideration that the plaintiff with her husband W. H. Jefferson, farmers residing on their farm in Marshall County, would sell and dispose of their horses, cattle, hogs and farming implements, quit farming and move to the city of Moundsville and there reside with him at his home and provide him companionship for and during the remainder of his natural life, according to the first count, he would give plaintiff the sum of $4,000.00 to $6,000.00, payable out of his personal estate at the time of his death, and that he would provide therefor in his last will and testament. The second count with slight variation as to consideration, is the same as the first. The third predicated on the same consideration alleges the promise of decedent to pay plaintiff all expenses, costs and losses incurred by her and her husband in so disposing of their stock of horses, cattle, hogs, farming implements, etc., and all money expenses incurred in carrying out their contract, and which losses are specifically alleged, and also the loss which the said W. H. Jefferson would sustain by lack of employment, stated at $2,000.00, and aggregating more than the sum recovered. The sixth and last count also based on the same consideration avers more specifically a promise on the part of the decedent that he would give and bequeath to the plaintiff out of his estate the sum of from $4,000.00 to $6,000.00, payable to her out of his estate at his death. Each of said counts avers full performance by plaintiff and her husband of the said contract on their part, and the breaches thereof by the decedent as averred in each count, and lay her damages at the sum of $6,000.00.
That one may maintain assumpsit on a contract to make a will when founded on a good and valid consideration, is not controverted.
The authorities so hold. 40 Cyc. 1070; Hotsinpiller v. Hotsinpiller, 72 W.Va. 823, 825, 79 S.E. 936, and cases there cited.
Was the contract here pleaded based on a good and sufficient consideration? We think it was. The contract as alleged involved sacrifice by plaintiff of her previous home on the farm, of property thereon, changes of friends and neighbors, and her husband of profitable employment, and to that extent at least of means of support, and gave to the other party therein companionship during his natural life, however long that might be lengthened out in time. There can be no doubt of the sufficiency of the consideration, especially when viewed in the light of the relationship and situation of the parties disclosed by the evidence.
Contracts to make wills are controlled by the same rules and principles and are enforceable as other contracts. Davidson v. Davidson, 72 W.Va. 747, 750, 79 S.E. 998, and cases cited. A gain to the promisor is as adequate a consideration to support a contract as the loss of the promisee. Jackson v. Hough, 38 W.Va. 236, 240, 18 S.E. 575; Rowan v. Hull, 55 W.Va. 335, 340, 47 S.E. 92, 104 Am. St. Rep. 998, 2 Ann. Cas. 884.
The incurrence of some risk and trouble at the instance of the promisor singly or in connection with another at the instance of the promisor constitutes a valuable consideration. County Court v. Hall, 51 W.Va. 269, 41 S.E. 119. And it has been decided by the highest authority that an agreement for companionship constitutes a sufficient consideration for a promise to make a will. Howe v. Watson, 179 Mass. 30, 60 N.E. 415; Burdine v. Burdine's Ex'r, 98 Va. 515, 36 S.E. 992, 81 Am. St. Rep. 741; Schutt v. Missionary Soc., 41 N. J. Eq. 115, 3 A. 398.
Is the contract alleged sufficiently definite and certain in its terms to be enforceable? There can be no doubt, we think, on this proposition. As the promise of the plaintiff is...
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