Jordan v. Ailstock, 27616
| Decision Date | 04 January 1973 |
| Docket Number | No. 27616,27616 |
| Citation | 230 Ga. 67,195 S.E.2d 425 |
| Parties | Hugh JORDAN v. Harriet V. AILSTOCK. |
| Court | Georgia Supreme Court |
Syllabus by the Court
In this action for specific performance of a contract to make a will, the testimony of the plaintiff in reply to interrogatories and depositions, offered by the administrator in support of his motion for summary judgment, showed a genuine issue of fact for submission to a jury, and it was not error to deny the administrator's motion for summary judgment.
William A. Zorn, Jesup, for appellant.
Warren D. Evans, Knox & Evans, Thomson, Hinton R. Pierce, Augusta, for appellee.
This appeal by the administrator of the estate of Herman Traube Kennedy is from the denial of a motion for summary judgment. The trial judge certified the case for immediate review.
Harriet V. Ailstock filed a complaint against the administrator of the estate of Herman Traube Kennedy, which, as amended, alleged: She was the sister-in-law of the deceased. On or about December 20, 1970, and reaffirmed in the middle of February, 1971, the deceased entered into an oral contract with her whereby she was to come to Warrenton and to devote her time solely and exclusively to keeping house for him, taking care of him during his illness, and looking after his general welfare and comfort, so long as he should live. The services to be rendered to him were of such a personal, affectionate, and considerate nature that they could not be readily procured by him elsewhere. On his part he agreed to leave her all of his property, both real and personal, possessed by him at his death. She accepted the terms and conditions of the contract and fully and faithfully performed the contract. The deceased died on March 27, 1971, without leaving a will or other instrument conveying the property to her. She prayed for specific performance of the contract, injunction, and other relief. Temporary injunctive relief was granted.
The administrator filed interrogatories, requiring the plaintiff to set forth specifically the terms of the agreement alleged to have been entered into between her and Dr. Kennedy; when, and where, the contract was entered into; and the name and address of all persons known by the plaintiff to have been present when the contract was entered into, or who have information relevant to the contract. In reply to the interrogatories, the plaintiff stated that the contract was that if she would remain with Dr. Kennedy and care for him for the rest of his life, he would leave all of his estate to her; the date of the contract was on or about December 20, 1970, and reaffirmed in the middle of February, 1971; and the place of the contract was the Kennedy home in Warrenton, Georgia. Luther S. Mills, Mr. Ellen M. Mills, and James P. Menier were listed as persons having information on the contract.
The administrator took the depositions of the plaintiff, Luther S. Mills, and Mrs. Ellen M. Mills. James P. Menier was in the Merchant Marines and his whereabouts was unknown.
On the basis of the pleadings, the answers of the plaintiff to interrogatories, the depositions, and the affidavit of the administrator...
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