Landrum v. Rivers
| Decision Date | 14 February 1919 |
| Docket Number | 756. |
| Parties | LANDRUM v. RIVERS. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 24, 1919.
Syllabus by the Court.
Specific performance of a contract to make a will in favor of another where the party claiming the right to specific performance has performed his part of the contract, will be decreed where the contract to make the will is shown with the requisite degree of certainty and definiteness.
The court did not err in refusing to give in charge a lengthy written request, which in certain parts was argumentative in character, and which also instructed the jury that specific performance of a contract like that referred to in the first headnote would not be enforced, where refusal to enforce it would not amount to a fraud on the party seeking the equitable relief or specific performance.
Other portions of the requests to charge examined, and held to have been sufficiently covered, where pertinent and legal, by the charge as given.
The court's charge in submitting the terms of the contract in question was full, apposite, and correct, sufficiently covering the subject, and there was no error in refusing to give the charge requested upon this subject.
The court's charge as to the main issue in the case--that is as to what the contract was, and whether the contract as alleged was made or not--was sufficiently full and comprehensive, and the court did not err in refusing to give the charge requested upon this subject.
The portions of the court's charge, in which he states the issues as to the agreement upon the part of the decedent as to what he would leave by his will to the petitioner upon certain considerations stated, were not misleading, but correctly presented the real issue.
The husband of the plaintiff was not a party to this suit, nor was he a party to the contract in such a sense as to render him incompetent as a witness.
The testimony of the physician attendant upon the decedent in his last illness, tending to show that he then desired to make a will in favor of the petitioner in the case, was competent relevant, and material, and the court did not err in admitting it over objection.
The construction of a verdict may be aided by a consideration of the pleadings; and giving to the verdict in this case the scope which it should have, under the allegations in the petition and the issues made by the pleadings, it cannot be said that the decree rendered was not authorized by the verdict.
Error from Superior Court, Campbell County; C. W. Smith, Judge.
Suit by Mrs. N.C. Rivers against Mrs. E. E. Landrum, individually and as administratrix of the estate of L. A. Brown, deceased. Verdict and decree for plaintiff, motion for new trial, exceptions to decree and motion to set aside decree overruled, and defendant brings error. Affirmed.
Mrs. N.C. Rivers brought her equitable petition against Mrs. Exer Ellen Landrum as an individual and as administratrix of the estate of L. A. Brown, in which she prayed, among other things, specific performance of an oral contract to make a will, and for injunctive relief. This petition was filed on May 13, 1915. The allegations of the petition show that Mrs. Landrum's intestate owned a valuable estate, consisting of realty and personalty; that at the time of the making of the contract, specific performance of which was sought, Brown's aged mother was living in the house with him; that he was unmarried and was about 53 years of age; that petitioner and her husband and their two children were keeping house in the same county in which Brown lived, he being her uncle. She was engaged in the discharge of her duty, looking after and taking care of her children, waiting on and assisting her husband in making a living, and trying to accumulate property. Brown had no person in his house who could take care of him and look after his mother; and, approaching petitioner, he proposed to her that if she would change her place of residence, procure the consent of her husband to allow her to live in the house with him, and bring her children, live in his house, and be a comfort to him and his mother, treating them kindly and affectionately during their lives, and would look after and nurse the mother during her life, and cook for and wait on him and his mother, he would on his part, as compensation for such services to be rendered by petitioner, execute his last will and testament before his death, and in such will bequeath to her all of the property of every kind which he then owned and which he might acquire between that date and the date of his death. In the same paragraph in which these allegations just set forth are contained it is alleged that the decedent, L. A. Brown, stated to petitioner especially "that the compensation for all this service would be made by him by willing and leaving to her all the property he had at the date of his death of every kind and character." The death of Brown and of his mother is alleged, and that he died without having executed his last will and testament. Certain money, the proceeds of a life insurance policy taken by Brown and payable to his estate, it is charged, was sufficient to pay all the debts of the estate, and that plaintiff was willing that the debts should be paid with this money. Full performance of the contract on the part of petitioner was shown, and she prayed that specific performance be decreed, and that the court decree that the property owned by Brown at the time of his death, as set out in the exhibit attached to the petition, is the property of petitioner, and that the defendant be enjoined from administering on it as the property of Brown, or in any way disposing of it or changing the status. There was also a prayer for general relief. Mrs. Landrum, the defendant, was a sister and sole heir at law of Brown.
Upon the hearing of the case the jury returned a verdict in favor of the plaintiff. Upon this verdict the judge rendered a decree. The defendant filed certain exceptions to the decree, and also a motion to set aside the decree, and made a motion for a new trial. The motion for a new trial was overruled. The exceptions to the decree and the motion to set aside the decree were also overruled. The defendant sued out a writ of error, bringing the case to this court, and in the bill of exceptions assigned error upon the judgment of the court overruling the motion for a new trial, and overruling the exceptions to the decree and the motion to set aside the decree.
Brewster, Howell & Heyman, of Atlanta, and J. H. Longino, of Fairburn, for plaintiff in error.
J. F. Golightly and L. S. Camp, both of Fairburn, and S. Holderness, of Carrollton, for defendant in error.
1. The plaintiff in error submitted a large number of written requests to charge, which the court refused to give, and error is assigned upon the refusal to give in charge these requests. Among them was the following:
The court did not err in refusing to give this charge. This charge is not in harmony with the doctrine laid down in other cases decided by this court, that a contract to make a will will be specifically performed where the evidence establishes the contract with the requisite degree of certainty (a subject to which we will allude further on in this opinion), and it is shown by the evidence that the party claiming the right to specific performance fulfilled and performed his part of the contract.
2. Another written request to charge, which the court refused to give, was as follows:
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