McCrary v. Salmon

• Decision Date: 15 April 1941
• Docket Number: 13588.
• Citation: 15 S.E.2d 442,192 Ga. 313
• Parties: McCRARY v. SALMON.
• Court: Georgia Supreme Court

15 S.E.2d 442

192 Ga. 313

McCRARY v. SALMON.

No. 13588.

Supreme Court of Georgia

April 15, 1941

Rehearing Denied June 14, 1941.

The administrator of the estate of Mrs. Grace, deceased advertised separately described realty and personalty to be sold on the public-sale day in June, 1935. Mrs. Salmon interposed claims to the property so advertised, and both claims were returned to the superior court and docketed by the numbers 5812 (relating to realty) and 5855 (relating to personalty). On July 17, 1936, Mrs. Salmon, in aid of the claims and in order to establish her right to the property in question, filed her 'equitable petition' in the nature of an amendment, seeking to set up and compel specific performance of an alleged parol contract witn Mrs. Grace whereby the latter agreed with petitioner 'that if petitioner would look after and care for and nurse and see that she was properly cared for as long as she lived, that she, Mrs. Grace, would execute a will giving to petitioner all of her property both real and personal, and money, at the death of said Mrs. Grace.' It was also alleged that Mrs. Grace left described property, other than the specific realty and personalty described in the claims that would be within the contract; but by amendment this claim to such other property was withdrawn. Other allegations were full performance of the contract on the part of the claimant, and failure by inadvertence on the part of Mrs. Grace to make the will. The amendment contained the following prayers: 'Wherefore she parys that this petition be allowed and filed, and that she have specific performance of the contract to make a will, as hereinbefore set out, as to all of the property described in said claim, and that the court by verdict and decree declare that said property is the property of the petitioner, and that the administrator be required to convey said property to her in as full a manner as held by said Mrs. Grace in her lifetime, and that she have any and all further relief consistent of law, equity and the facts of this case. * * * Your petitioner shows, that this being a proceeding in equity and all the necessary parties being before this court, and the court having jurisdiction of all the parties and the subject-matter, that a decree should be entered, settling the entire estate and vesting title in petitioner to the property claimed in this claim case, and to the front [funds?] derived from the sale of the property in Anniston, Alabama, and the money on deposit on the bank, and that the court by judgment and decree require said administrator to pay over to petitioner all of said funds. And she prays that such verdict and decree be entered, and that credit be given to the administrator for any debts or claims that he may have paid for expenses of last illness, and burial expenses, and expense for recovering house.'

The equitable amendment and the amendment thereto were both duly allowed. The administrator filed an answer to the equitable petition, and the answer was amended. Under the pleadings the parties were at issue as to the alleged parol contract. The case as thus presented was tried under a stipulation between the parties to try the claim cases together. There was no order of court expressly providing for consolidating the claim cases as originally docketed. The jury returned two identical verdicts 'in favor of the claimant,' which by instruction of the judge were entered respectively on each of the statutory claims. The administrator made two motions for a new trial, based on the general grounds. Afterwards, treating the whole proceeding as one by Mrs. Salmon for both equitable and legal relief, the administrator presented two amendments of the motion for a new trial. A new trial was refused, and the administrator took a single bill of exceptions, assigning error on the refusal of a new trial.

Fred C. Salmon testified: 'Mr. Grace was carrying insurance on his life at that time. He had a three-thousand-dollar policy with the Royal Arcanum, fraternal insurance. * * * Now at that time Mr. and Mrs. Grace came to my house, and wanted me to pay this premium on the policy on account of finances, and we went to W. H. Coker and had him send the policy in, and had it changed, and they changed it and made one thousand dollars to my wife, Mrs. Bessie Salmon, and two thousand dollars to Mrs. W. I. Grace, Aunt Mollie, and I was to pay the premiums as long as he lived, and my wife was to get a check for one thousand dollars, and she was to get the other two thousand dollars, and at their death my wife was to have the estate, whatever it was, in cash or anything else. My wife, to carry out her contract, was to help look after them in their old age and see they were looked after. * * * At the time this agreement was made and entered into, there were present Mr. and Mrs. Grace and W. H. Coker and myself. * * * Now during that period of time, from 1925 up until his death he and his wife were still living next door to my house. When this agreement was made that I spoke of, at Mr. Walt Coker's office, Mrs. Grace said that she wanted us to look after her and her business, and said we were to look after it as long as they lived, was the contract; we were to do it. Mrs. Salmon agreed to that. Mrs. Grace, in return for Mrs. Salmon agreeing to do the things I have just outlined, was to execute a will and leave everything she had, personal and real, to my wife, Mrs. Bessie Salmon, if I carried out this contract; and we did do these...