Lantz v. Reed, 10700

• Decision Date: 25 October 1955
• Docket Number: No. 10700,10700
• Court: West Virginia Supreme Court
• Parties: French C. LANTZ et al. v. Paul W. REED, Executor, et al.

Page 612

89 S.E.2d 612

141 W.Va. 204

French C. LANTZ et al. v. Paul W. REED, Executor, et al.

No. 10700.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 1955.

Decided Oct. 25, 1955.

Syllabus by the Court.

1. A valid oral contract to bequeath or devise property may be enforced against the estate of a decedent, as any other valid contract; but a contract of this character is viewed with suspicion and is not favored by the courts and, to be enforceable, it must be certain and definite in its terms, equitable, and based upon sufficient consideration, and it must be established by full, clear, and convincing proof.

2. Specific performance of a contract to make a will, even when its terms are clear, certain and unambiguous, is not a matter of right but rests in the sound discretion of the court to be determined from all the facts and circumstances.

3. The evidence to establish an oral agreement to bequeath or devise property must be full, clear and convincing.

4. The finding of fact of the trial chancellor will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence.

George M. Kittle, Frank G. Kittle, Philippi, for appellants.

Harry Friedman, Grafton, for appellees.

HAYMOND, Judge.

In this suit in equity, instituted in the Circuit Court of Barbour County in June 1952, the plaintiff, French C. Lantz and Maria A. Lantz, seek a decree of specific performance against the defendants, Paul W. Reed, executor of the will of William C. Kisner, deceased, and in his own right, Ruth Alexander, Mary Pauline Reed and Charles F. Reed, of an alleged oral agreement entered into in 1947 between the plaintiffs and Kisner, by which he promised to bequeath to the plaintiffs certain personal property and to devise to them certain real estate consisting of two lots and a dwelling situate in Belington, Barbour County, West Virginia.

The bill of complaint contains among other averments this allegation: 'That said William C. Kisner, then and there being a widower and without children of his own, being so possessed of said lots on which there is erected a valuable dwelling and other improvements, requested plaintiffs to move into said dwelling with him where he then resided and agreed orally with plaintiffs that if they, said plaintiffs, would move into said dwelling with him and make their home with him there as long as he should live and treat him as a member of their family, keep house, pay all utilities and provide food for the table and care for him in said home other than medical attention, that he, said William C. Kisner, would upon his death devise and bequeath to said plaintiffs all his household goods and personal property located in and used at said dwelling at the time of his death, together with said lots and the dwelling-house and improvements thereon.' The bill of complaint also alleges that the plaintiffs in all respects performed their part of the agreement but that William C. Kisner failed to comply with the agreement and, by his will dated September 7, 1951, which was duly probated on May 29, 1952, in Barbour County, bequeathed the personal property in the dwelling, and other personal property, to the defendants Paul W. Reed, Ruth Alexander, Mary Pauline Reed and Charles F. Reed, and devised the lots and the dwelling and the improvements on them to the defendants Ruth Alexander and Mary Pauline Reed.

The prayer of the bill of complaint is that the alleged agreement between the plaintiffs and William C. Kisner be specifically enforced; that the personal property be impressed with a trust in favor of the plaintiffs in the hands of the defendant Paul W. Reed, executor of the will; that he be required to transfer and deliver such property to the plaintiffs; that the real estate also be impressed with a trust in favor of the plaintiffs; that the defendants Ruth Alexander and Mary Pauline Reed be required to convey it to them by good and sufficient deed; and that the plaintiffs be granted general relief.

To the bill of complaint the defendants entered their demurrer in writing which the court overruled. The defendants then filed their answer in which they denied the material allegations of the bill of complaint and pleaded the statute of frauds as a defense to the oral agreement alleged in the bill of complaint.

The case was heard upon depositions of numerous witnesses produced in behalf of the respective parties and exhibits filed with the depositions.

By final decree entered June 11, 1954, the circuit court found that the evidence introduced by the plaintiffs did not establish the alleged contract, denied the relief prayed for in their bill of complaint, dismissed the bill of complaint, and awarded costs against the plaintiffs. From that judgment this appeal was granted by this Court on September 27, 1954, upon the petition of the plaintiffs.

The controlling question presented by the assignments of error of the plaintiffs on this appeal is whether the proof offered by the plaintiffs establishes an agreement between them and William C. Kisner, as alleged in the bill of complaint, which may be specifically enforced in a court of equity. The plaintiffs contend that they have proved a valid contract between them and William C. Kisner by which he agreed to bequeath the personal property and to devise the real estate to them, as alleged in the bill of complaint, and that they are entitled to a decree of specific performance of the contract in this suit. On the contrary, the defendants insist that the plaintiffs have failed to prove any contract between them and William C. Kisner.

Prior to 1947 William C. Kisner resided on a farm in Barbour County, a short distance from the City of Belington. During his residence there his wife died and the plaintiff Maria A. Lantz, whose maiden name before her marriage to the plaintiff French C. Lantz was Maria Findley, lived in the Kisner home as a domestic and after his wife died attended and cared for Kisner and acted as his housekeeper for several years. While residing there she and French C. Lantz were married and they planned to move to Belington, rent a dwelling, and establish their home at that place. After some consultation between them and Kisner, who was an elderly man and who was afflicted with an ailment which affected his kidneys and his bladder and required daily care and attention, he decided to come to Belington to reside. On October 28, 1947, he purchased from Nora McCauley and Jewel McCauley, her husband, real estate fronting on Brown Avenue, in Belington, which consisted of two lots and a dwelling located on them, for which he paid in cash the sum of $2600, and obtained a deed for the property. When possession was delivered to him in November of that year he and the plaintiffs, at his request, moved into the dwelling and lived in it together as their home. The plaintiffs, who were not related to Kisner and were not required to pay rent, resided there until the death of Kisner in May, 1952, and they were still in possession of the home and the personal property owned by Kisner on the premises at the time of the institution of this suit.

Not long before his death, the exact time not being definitely shown, Kisner bought a home in Grafton and lived there for a short period. He then returned to his home in Belington where he continued to reside until his last illness during the final stage of which he was confined to a hospital in Grafton where he died on May 27, 1952. It seems that during the short time he lived in his home in Grafton he notified the plaintiffs to remove from the dwelling in Belington and had a notice to that effect served on the plaintiff Maria A. Lantz. The plaintiffs, however, did not leave the premises. At that time and on other occasions while Kisner and the plaintiffs were living together in Belington minor disputes occurred between them. Sometime after the plaintiffs moved into the residence in Belington and while they were living there with Kisner, their daughter, Carol, was born and Kisner formed an attachment for the child. While the plaintiffs lived with Kisner they attended and cared for him, looked after the home, worked in the garden, and furnished and paid for the utilities and all or most of the food. The plaintiff French A. Lantz made some repairs to the property and the plaintiff Maria A. Lantz nursed and cared for Kisner, prepared the meals, cleaned the house, and did the washing in the home.

Kisner did not bequeath the personal property in the residence or devise the real estate to the plaintiffs but by his will, dated September 7, 1951, which was admitted to probate in Barbour County on May 29, 1952, he bequeathed the personal property and other property owned by him to the defendants Paul W. Reed, Ruth Alexander, Mary Pauline Reed and Charles F. Reed and devised the real estate to the defendants Ruth Alexander and Mary Pauline Reed.

Numerous witnesses, produced in behalf of the plaintiffs, testified with reference to the alleged agreement. The testimony of each of them related to statements made by Kisner to or in the presence of the witness at different times and on different occasions during the period between the purchase of the property by him and his confinement in the hospital.

Jewel McCauley, one of the grantors in the deed to Kisner, testified that Kisner when purchasing the property told him that he would buy the property if it suited the plaintiffs and that it was to be their home as well as his home. Nora McCauley, the other grantor in the deed, testified that Kisner told her that he did not want to buy the property until he knew that the plaintiffs were satisfied with it because it was also to be their home. Ernest Turner, a deputy assessor, testified that when he visited Kisner to assess his property in 1952 Kisner told him that the plaintiffs were good to him and that 'what little I have I expect them to have it' for caring for him.

Henry...