Mayfield v. Cook

• Decision Date: 24 January 1918
• Docket Number: 3 Div. 304
• Citation: 201 Ala. 187,77 So. 713
• Parties: MAYFIELD v. COOK et al.
• Court: Alabama Supreme Court

77 So. 713

201 Ala. 187

MAYFIELD v. COOK et al.

3 Div. 304

Supreme Court of Alabama

January 24, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Bill in equity by Eunice H. Mayfield, to set aside a will, and to invest complainant with the property therein conveyed. From a decree sustaining demurrer to the bill, complainant appeals. Modified in part, and affirmed.

The bill shows that J.H. Cook and his wife, Annie Cook, both now deceased, entered into a verbal agreement with complainant or with her parents, in the year 1901, to take complainant, a 14 year old girl, into their home (they being childless) to live with them as their daughter, and to give her the care and advantages they would give their own daughter, and that upon their decease, no matter which might die last, he or she so last to die would, before his or her death, devise and bequeath to complainant all of the property then belonging to him or her, as the case might be, of every kind whatsoever real, personal, or mixed. It is further shown that complainant, pursuant to the terms of said agreement, left her own parents, and went to live, and did live, with said Cook and wife as their daughter, and faithfully complied with her agreement. It is further shown that J.H. Cook survived his wife, who died childless in 1915, and that he afterwards married Marie Boyd Abbott, one of the respondents, and upon his death in 1916, without children, his will was admitted to probate, by the terms of which all the property of said Cook was given to his said widow, Marie Boyd Cook, and Edward S Watts, to the entire exclusion of complainant, and contrary to the agreement made with her or her parents in the premises. The bill shows that said Cook died in the ownership of a large quantity of specific real estate, and also 25 shares of the capital stock of a Montgomery bank. The bill was filed against Edward S. Watts and Marie Boyd Cook, and the theory is that the will is void as to complainant, that respondents Cook and Watts can take no property thereunder and that the estate belongs in equity to complainant.

Ball & Beckwith, of Montgomery, for appellant.

Hill, Hill, Whiting & Stern, of Montgomery, for appellee.

SOMERVILLE J.

It is thoroughly well settled that any one who is sui juris "may, for a valuable consideration, renounce the absolute power to dispose of his estate at pleasure, and bind himself by contract to dispose of his property by will to a particular person, and that such contract may be enforced in the courts after his decease, either by an action for its breach against the personal representative, or, in a proper case, by bill in the nature of specific performance against his heirs, devisees, or personal representative." Bolman v. Overall, Ex'r, 80 Ala. 451, 455, 2 So. 624, 60 Am.Rep. 107; Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am.St.Rep. 46; 40 Cyc. 1063.

It is settled also in this state that an oral agreement to make a will devising real estate, unaccompanied by payment of some valuable consideration and delivery of possession of...