Kirk v. Beard, A-7857

Decision Date29 March 1961
Docket NumberNo. A-7857,A-7857
Citation162 Tex. 144,345 S.W.2d 267
PartiesAgnes KIRK et al., Petitioners, v. Lucille BEARD et al., Respondents.
CourtTexas Supreme Court

Fred Erisman, Longview, Robert M. Mahanay and Gean B. Turner, Clburne, Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for petitioners.

Gordon R. Wellborn, Rex Houston, Henderson, Roberts & Smith, Longview, Wynne & Wynne and Clarence A. Abramson, Dallas, for respondents.

CULVER, Justice.

The respondents, Lucille Beard, Loanna Silvey Jacobs and Irma Kate Silvey Murphy and Mosell Silvey Pitner, are nieces of J. E. Sexton, deceased. They brought this suit to establish their claim to all of the estate, both real and personal, owned by J. E. Sexton at the time of his death. Their claim is based on a contract alleged to have been made between J. E. Sexton and his brother, W. H. Sexton whereby these brothers orally agreed that they would make mutual and reciprocal wills; that J. E. and W. H. Sexton each executed identical wills devising each to the other his undivided half interest in all lands owned by them in Johnson, Hill and Somervell Counties together with all personal property situated thereon; and leaving to the nieces, share and share alike, the remainder of his property, both real and personal.

The brothers on the 23rd of November, 1948, did execute separate wills containing the foregoing provisions. W. H. Sexton died on October 30, 1952. His will was probated and his estate distributed according to the terms of the will. J. E. Sexton died March 1, 1958.

On the trial the jury found (1) that W. H. Sexton and J. E. Sexton executed their wills pursuant to an agreement between them to dispose of their property in the manner set out in such wills; (2) that the Sexton Brothers on or about November 23, 1948, and before the execution of their respective wills, agreed that the survivor of them would leave all of his properties to their four nieces. On this verdict judgment was rendered in favor of the nieces that they have and recover all of the property, both real and personal, belonging to J. E. Sexton at the time of his death, wheresoever situated, and that the title to the properties be vested in them. The Court of Civil Appeals has affirmed. 334 S.W.2d 531. The wills are set out in full in that opinion.

The principal contentions asserted by petitioners are these: (1) That recovery upon the alleged oral contract to devise is barred by the Statute of Frauds, Art. 3995, subd. 4, Vernon's Ann.Civ.Stat., since much or most of the estate of J. E. Sexton consists or real property; (2) that there is no evidence to support the jury finding that the brothers agreed to make and did make mutual or reciprocal wills; (3) that there is no evidence to support the jury finding that the brothers agreed that the survivor of them would leave all of his property to the nieces, including the lands devised to each other.

To sustain their theory that the Statute of Frauds bars recovery petitioners cite a number of Texas decisions but these do not directly deal with the fact situations here where mutual wills have been executed in accordance with an oral contract and one party has taken the benefits provided under the will of the deceased party. Illustrative of these cases are Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147, and Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216.

In Upson v. Fitzgerald the basis of Upson's claim was an oral contract alleged to have been made by him with his grandparents to the effect that if he would qualify himself educationally and otherwise and would superintend the grandparents' ranch properties they would leave to him at their death one-half of their entire estate. Recovery was denied on the ground that this was but a contract for the sale of real property and contravened the Statute of Frauds. The grandparents at first made wills embracing the devise to the grandson but those wills were later revoked. The court concluded that the making of a will pursuant to an agreement to devise is not a sufficient memorandum of the agreement where the testator afterwards makes another will revoking the prior one. The court observed that the element of revocability is inherent in a will and to read into the will a contract not to revoke it when no mention of such contract is made therein is not warranted. It is further pointed out that where a consideration has been paid but nothing more, a fraud is not worked by refusal to enforce the oral contract for the sale of land since the remedy of quantum meruit is available. Here of course that relief cannot be had.

Generally speaking the decision in Hooks v. Bridgewater is to the same effect. There we likewise held that a parol agreement, whereby in consideration of the father's surrender of the custody of his son to live with a foster father, the foster father's lands owned at the time of his death should become the son's property, was but in effect a parol sale of the lands to be performed in the future and is within the Statute of Frauds. To this contract the court applied the rule that to relieve a parol sale of land from the operation of the statute three requirements were essential, (1) payment of the consideration; (2) possession by the vendee, and (3) valuable and permanent improvements upon the land by the vendee. In this case no will was executed by the foster father.

The law announced by the above cases is too well established to be questioned but it may not be applied to the facts of this case. We have here considerably more than a parol promise to devise land for a paid consideration. Mutual wills have been executed pursuant to an oral contract plus the acceptance by the survivor of the benefits provided by the will of the deceased. The deceased party to the contract has fully and completely performed.

Hooks v. Bridgewater recognized an exception to the statute where a fraud would result if repudiation of the oral contract were permitted where the case is such that (111 Tex. 122, 229 S.W. 1116) 'the nonenforcement of the contract-or the enforcement of the statute-would, itself, plainly amount to a fraud.' What the court says is that there should exist some positive rule which will insure that an exception to the statute will be permitted only for the prevention of an actual fraud distinguished from a mere wrong. We think the allowance of an exception in this case does not subvert that principle since the rule we adopt is clear and positive.

Petitioners quote from 49 Am.Jur., Statute of Frauds, § 215, as follows:

'The rule that an oral agreement to devise land is invalid includes an agreement that each of the parties shall make a will devising land in favor of the other or to a third person, as well as an agreement to devise land in consideration of services to be rendered to the promisor.'

This, however, is no more than the rule adhered to in Hooks v. Bridgewater. It does not comprehend or control the situation here.

The petitioners cite and rely on a number of cases, but a careful review discloses that only in Alabama and Washington does their contention find any solid support. Allen v. Bromberg, 163 Ala. 620, 50 So. 884; In re Gulstine's Estate, 154 Wash. 675, 282 P. 920. But see In re Fischer's Estate, 196 Wash. 41, 81 [162 TEX 148] P.2d 836 and Cummings v. Sherman, 16 Wash.2d 88, 132 P.2d 998.

(1) The Alabama Court, while recognizing that in such cases as Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 173, 1 L.R.A. 596, where the contract is fully performed on the part of the husband and the benefits received and accepted by the wife, the agreement is taken out of the Statute of Frauds and equity will prevent the wife from violating her part of the contract in fraud of interested parties, nevertheless applies the statute strictly on the ground that it expressly provides that parol contracts relating to the sale of lands are void unless the purchase money be paid and the purchaser placed in possession. All of the other cases cited by petitioners are easily distinguished on the facts and have little application to our problem. First National Bank of Nevada v. Friednash, 72 Nev. 237, 302 P.2d 281; Brought v. Howard, 30 Ariz. 522, 249 P. 76, 48 A.L.R. 1347; Maloney v. Maloney, 258 Ky. 567, 80 S.W.2d 611; Gibson v. Crawford, 247 Ky. 228, 56 S.W.2d 985; Kenney v. Kenney, 45 Ohio App. 249, 186 N.E. 853; In re Wheeler's Estate, 164 Misc. 441, 299 N.Y.S. 945; McClanahan v. McClanahan, 77 Wash. 138, 137 P. 479. In none of these cases was there such part performance as we have here, namely, where one of the contracting parties died leaving unrevoked a mutual and reciprocal will and the survivor took under the mutual will of the deceased, Hale v. Hale, 90 Va. 728, 19 S.W. 739, was disposed of on statutory grounds that rendered void all wills executed prior to marriage. To the same effect is Near et al. v. Shaw et al., 76 Misc. 303, 137 N.Y.S. 77.

We hold that recovery in this case upon the oral contract to devise is not barred by the Statute of Frauds. Although we have found no Texas decision passing directly on this question, recovery has been allowed under similar facts. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Sherman et al. v. Goodson's Heirs et al., Tex.Civ.App., 219 S.W. 839, wr. ref.; Pullen v. Russ, Tex.Civ.App., 226 S.W.2d 876, wr. ref. n. r. e.; Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588; Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395, wr. ref.; Moore v. Moore. Tex.Civ.App., 198 S.W. 659, wr. ref.; Johnson et al. v. Durst, Tex.Civ.App., 115 S.W.2d 1000, wr. dism. In none of these cases, however, was the effect of the Statute of Frauds determined. However, in Larrabee v. Porter, the court in passing upon a similar state of facts, although observing that the Statute of Frauds defense had not been invoked, took occasion to say that the undisputed evidence showed...

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