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...
