Kerr v. Kennedy
| Decision Date | 27 July 1916 |
| Docket Number | 9481. |
| Citation | 90 S.E. 177,105 S.C. 496 |
| Parties | KERR ET AL. v. KENNEDY ET AL. |
| Court | South Carolina Supreme Court |
On Petition for Rehearing, October 19, 1916.
Appeal from Common Pleas Circuit Court of Abbeville County; Ernest Moore, Judge.
Action by Frank and John Kerr against A. Seldon Kennedy, as executor of the last will and testament of Mrs. Josephine E. Sloan deceased, and others. From a decree for plaintiffs defendants appeal . Reversed.
Grier Park & Nicholson, of Greenwood, and Wm. P. Greene, of Abbeville, for appellants.
Wm. N Graydon, of Abbeville, and Cothran, Dean & Cothran, of Greenville, for respondents.
This is an action by the plaintiffs against the executor of the will of Mrs. Josephine E. Sloan and certain beneficiaries under her will, to enforce an alleged contract to dispose of her property by will in a certain way. The plaintiffs allege that Josephine E. Sloan entered into a contract in the spring of 1894, whereby plaintiffs agreed to live near by or with her, take care of her during her lifetime, manage her property for her, and give her all the care and attention which she might require, or which might be expected of sons to a mother, and in consideration of which Mrs. Sloan agreed to make her will in favor of the plaintiffs, and thereby to devise and bequeath to them her entire real and personal estate, with the exception of a pecuniary legacy of $2,000 in favor of the United Presbyterian Church, and with the further qualification that the plaintiff John Kerr should receive $500 more than the plaintiff Frank Kerr in the division of her estate. The complaint alleges this agreement, and that in pursuance thereof, in the spring of 1894, Mrs. Sloan did execute her will, according to the formalities of law, containing the devises and bequests as stipulated in the agreement; that the plaintiffs, relying on the agreement and execution of the will, entered upon the discharge of their obligations under the agreement, and from that time until her death in May, 1914, faithfully performed and carried out their part of the same, and gave her close and unremitting personal attention for more than 20 years, renouncing their own plans and prospects of life and devoting their lives to her service; that about 10 years after the first will was executed Mrs. Sloan, without their knowledge, executed another will, to which four codicils were added, by which she devised and bequeathed her estate differently. They allege that from 1894, when the agreement and will was made, until 1904, when her new will was made, the plaintiffs were faithfully performing their agreement, and knew nothing of the proposed change in the will, and Mrs. Sloan maintained an absolute silence as to such change, and they were thus induced to continue their service as long as she lived until her death some 10 years later; that upon the faith of the agreement the testatrix, for more than 20 years, obtained all that she covenanted for, the unremitting care and services of the plaintiffs, while in the secret possession of knowledge that she herself had violated the agreement by making a new and different disposition of her property; and that such conduct was a fraud upon their rights. The answers to the complaint interpose the defenses of general denial of the material allegations of the complaint, the statute of frauds, the statute of limitations, and estoppel by conduct. The cause was tried at the March term of court, 1915, for Abbeville county, before his honor, Judge Moore, upon testimony submitted in open court, who on April 21, 1915, filed his decree, sustaining plaintiffs' contention and decreeing them fully the relief prayed for. After entry of judgment defendants appeal, and by 36 exceptions impute error on the part of his honor.
It is unnecessary to take up the exceptions one by one, as the appellants in arguing the case allege the four specifications covering all of the assignments of error embraced in all of the specifications are as follows: (1) In holding that the testimony was sufficient to establish the alleged contract by that character and quantum of proof which will justify a court of equity in denying to testatrix the right to make a will; (2) error in considering the testimony of Judge Lyon as a question of credibility and high character of the witness, whereas it ought to have been considered and treated as a matter of memory; (3) error in holding that there was sufficient testimony to show such performance of the alleged contract as would justify a court of equity in decreeing its performance; (4) in not holding that the contract, if any ever existed, was abandoned.
As to the first, has the alleged contract been established by the character and sufficiency of proof which would justify the court in denying the testatrix the right to make a will and dispose of her own property in her own way, or whether the alleged contract was proven, and was there such past performance as would justify its enforcement? There is no doubt that a contract of the character alleged in the pleadings in this case, when it is fully established by clear and convincing proof and has been performed by the party seeking relief, will be enforced by a court of equity. This has been decided in a number of cases in our own state, some of which later cases are Bruce v. Moon, 57 S.C. 60, 35 S.E. 415; Turnipseed v. Sirrine, 57 S.C. 559, 35 S.E. 757, 76 Am. St. Rep. 580; Wilson v. Gordon, 73 S.C. 156, 53 S.E. 79; Dicks v. Cassels, 100 S.C. 348, 84 S.E. 878. It must be borne in mind that ordinarily a person has the right to dispose of his property as he sees fit, can deed it away while alive or dispose of it by will after death, and to deprive a person of this right is to deprive him of a weapon of offense and defense, more particularly the aged. To say to the old, "You have put it out of your power to dispose of your property by will, as you have already contracted for its disposition after your death," in most cases would be productive of unhappiness, heartburning, bitterness, and neglect, as long as one has property enough to pay for service and pay for being looked after, then some one will look out for them. It is said that "the bitterest of all bread is the bread of dependence," and before this great right shall be taken from any one, the agreement relied on to deprive him of that right must be established by evidence that must be certain, definite, clear, and convincing, as was said by this court in Dicks v. Cassels, 100 S.C. 348, 84 S.E. 879, in order that contracts of this character may be enforced by this court, the following must be established:
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Young v. Levy
...and justness of the transaction."' It is interesting to note that Mr. Justice Watts again spoke for the Court in Kerr v. Kennedy, 105 S.C. 496, 90 S.E. 177, 179, wherein the Circuit Court judgment was reversed and performance denied, and said: "It is an ancient and boasted right that a pers......
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...... agreement, contract, or legal obligation on her part to do. so. See Dicks v. Cassels, 100 S.C. 341, 84 S.E. 878; Kerr v. Kennedy, 105 S.C. 496, 500, 505, 60. S.E. 177. . . . The. circumstance that plaintiff knew when the land was being. ......
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