Lipe v. Citizens' Bank & Trust Co.

• Court: North Carolina Supreme Court
• Writing for the Court: CLARKSON, Justice.
• Citation: Lipe v. Citizens' Bank & Trust Co., 206 N.C. 24, 173 S.E. 316 (N.C. 1934)
• Decision Date: 28 February 1934
• Docket Number: 310.
• Parties: LIPE v. CITIZENS' BANK & TRUST CO. et al.

173 S.E. 316

206 N.C. 24

LIPE v. CITIZENS' BANK & TRUST CO. et al.

No. 310.

Supreme Court of North Carolina

February 28, 1934

Appeal from Superior Court, Cabarrus County; Hill, Special Judge.

Action by Charles H. Lipe against the Citizens' Bank & Trust Company and another, executors of the will of Alice J. Bost deceased. From the judgment rendered, both the plaintiff and the defendants appeal.

Error and new trial granted.

The complaint of the plaintiff against defendants is as follows:

"That Alice J. Bost, late of Concord, said County and State, died in Concord, N. C., on the 6th day of August, 1929, leaving a last will and testament in which the defendants are named as executors. That said will was admitted to probate, on application of the defendants, in the County of Cabarrus and the said defendants qualified and are now acting in the capacity of executors of said will. That said Alice J. Bost never had any child or children, and at the time of her death she had no living brother or sister. That the plaintiff is a farmer, and at the time hereinafter mentioned, he resided on his farm in No. 11 Township about three miles from Concord. The said Alice J. Bost then lived in her new home on South Union Street, Concord, N.C. That during the month of August, 1910, the said Alice J. Bost, then living alone in her home in Concord, N. C., and then advanced in years and frail in body, and physically unable to get around and look after her affairs, she asked the plaintiff to look after and manage her affairs in general and render such other service and to do other work for her as she, from time to time, might request, and told him if he would do so, that she would make her will leaving all her property to him, the said Chas. H. Lipe. That plaintiff, believing in her sincerity and relying on her promise, accepted her offer, and in good faith from that date until her death, covering a period of about twenty years, did look after and attend to her and manage her affairs in general, and complied with his part of said agreement at a great sacrifice and neglect of his own outside other interests, fully expecting her to comply with her part of the agreement made with him, that she would leave all her estate to him in her will at her death. That said Alice J. Bost did not comply with her agreement with the plaintiff in that she did not leave a will giving the plaintiff all her estate as she had agreed and contracted with the plaintiff she would do, but did leave a will in which the defendants are named executors, providing among other things that there be spent on her burial $4,500.00, at least, together with the payment of her funeral expenses and the payment of her just debts. That the services rendered by the plaintiff to and for said Alice J. Bost, under said agreement and which services she accepted, and had the benefit of, for said period of about 20 years, and the value of her estate at the time of her death was $10,000.00, and are reasonably worth the sum of $10,000.00, no part of which has been paid.

Wherefore the plaintiff demands judgment in his favor and against said estate for ten breach of said contract, in the sum of ten thousand dollars, ($10,000.00), and his costs of action, and for such other and further relief as he may be entitled in law or equity."

The defendants denied the material allegations of the complaint. The issues submitted to the jury and their answers thereto were as follows: "(1) Did the testatrix, Alice Bost, deceased, contract and agree with the plaintiff that she would devise and bequeath to him all of her property in consideration of services to be rendered, as alleged in the complaint? A. Yes. (2) If so, did the plaintiff perform his part of said agreement? A. No. (3) What sum, if any, is the plaintiff entitled to recover of the defendants? A. _______. (4) Is the plaintiff's cause of action barred by the three years statute of limitations, as alleged in the answer? A. _______. (5) If there was no express contract or agreement as alleged, did the plaintiff render to said Alice Bost, deceased, services upon an implied agreement that she would pay therefor their reasonable worth? A. Yes. (6) What sum, if any, is the plaintiff entitled to recover of the defendants for services rendered under said implied agreement? A. $3,000.00. (7) What sum, if any, is the plaintiff indebted to the defendants by reason of the note set up in the counterclaim? A. $250.00 and interest from March 26, 1928."

The judgment of the court below was as follows:

"At a Superior Court, held at the Court House in Concord, N. C., on the 12th day of June, 1933, present His Honor, Frank S. Hill, Judge Presiding and holding said Court by and under a Commission from the Governor of the State of North Carolina. This action having been calendared, called and tried before His Honor and a jury upon the following issues, to-wit: (the issues are referred to as above set forth). It is now on motion Adjudged that the plaintiff recover of the defendants the sum of $3,000.00; which said amount, however, when and if paid by defendants, to the plaintiff, Charles H. Lipe, shall be a credit upon and deducted from the amount that said Charles H. Lipe is entitled to receive under and by virtue of the will of the said Alice Bost, deceased.

It is further adjudged that the defendants recover of the plaintiff the sum of $250.00 and interest on said amount from March 26th, 1928, on and by reason of their counterclaim. And that the defendants be taxed with the costs of this action."

The plaintiff and defendants made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

Generally, where will bequeaths pecuniary legacy to creditor, presumption of satisfaction arises, and creditor is put to election whether to enforce debt or claim legacy.

Hartsell & Hartsell, J. Lee Crowell, and J. Lee Crowell, Jr., all of Concord, for plaintiff.

Z. A. Morris, Jr., and H. S. Williams, both of Concord, for defendants.

CLARKSON Justice.

Plaintiff's Appeal. This kind of action has been recently discussed by this court in Hager v. Whitener, 204 N.C. 747, 169 S.E. 645, 648, and Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331. It is unnecessary to repeat, but refer to those cases. On the question of damage in the Hager Case following Redman v. Roberts, 198 N.C. 161, 150 S.E. 881. we affirmed the charge of the learned judge who tried the case below that "the measure of damages for the breach of contract to devise is the value of the property agreed to be devised." It is said in the Grantham Case, supra, it is evidence on the question which is technically and strictly speaking and said to be the better rule. The Grantham action was one for specific performance. One of the questions as set forth by plaintiff on this appeal is as follows: "Is a pecuniary legacy to a creditor who has an unliquidated account for services rendered to testatrix, a payment of the creditor's debt, undetermined in amount, when the testatrix directs in her will the sale of all her property and out of the proceeds directs: (1) The payment of funeral expenses; (2) The payment of all her just debts, out of the first moneys coming into the hands of her executors; and (3) Gives pecuniary legacies to several persons, aggregating about $12,000.00, in which is included a legacy of $3,000.00 to such creditor, her nephew, the plaintiff in this case?"

We think the question must be answered in the negative under the facts and circumstances of this case. The principle of law is thus stated in Pomeroy's Equity Jurisprudence (4th Ed.) § 527, and part of section 528, pp. 998, 999, and 1000 "The general rule as stated by Sir J. Trevor, M. R., in the leading case of Talbot v. Duke of Shrewsbury [(1714) Prec. Ch. 394] is as follows: 'If one, being indebted to another in a sum of money, does by his will give him a sum of money as great as or greater than the debt, without taking any notice at all of the debt, so that he shall not have both the debt and the legacy.' Where-ever this rule operates, and the presumption of satisfaction arises, the creditor-legatee is of course put to his election: if he claims the legacy, he cannot enforce the debt; if he enforces the debt, he cannot obtain the legacy. It is also proper to remark that a...