McCraw v. Llewellyn, No. 671

• Docket Nº: No. 671
• Citation: 94 A.L.R.2d 914, 123 S.E.2d 575, 256 N.C. 213
• Case Date: January 12, 1962
• Court: United States State Supreme Court of North Carolina

Page 575

123 S.E.2d 575 256 N.C. 213, 94 A.L.R.2d 914 Wayne McCRAW
v.
H. H. LLEWELLYN, Administrator of the Estate of Minnie Lynch Higgins. No. 671 Supreme Court of North Carolina. Jan. 12, 1962

J. C. Barefoot, Jr., and Benjamin D. Haines, Goldsboro, for plaintiff appellee.

Woltz & Faw, Mount Airy, for defendant appellant.

RODMAN, Justice.

Plaintiff does not claim as a beneficiary under the will. He recognizes Minnie's marriage subsequent to 30 December 1958 constituted a revocation of her will. G.S. § 31-5.3; In re Will of Tenner, 248 N.C.72, 102 S.E.2d 391. He predicates his right to recover for breach of an express contract.

Defendant's denial of the special contract placed the burden of proving the asserted contract on plaintiff. If he offered any evidence sufficient to support his allegation and to require compliance with the contract, he was entitled to have that issue submitted to the jury. If he failed to offer such evidence, but offered evidence of services rendered from which a jury could infer they were rendered and received upon the expectation that compensation would be paid because not gratuitously rendered, plaintiff would be entitled to recover the [256 N.C. 215] fair value of the services rendered. As said by Stacy, C. J., in Ray v. Robinson, 216 N.C. 430, 5 S.E.2d 127: 'It is established by a number of decisions that in the absence of some express or implied gratuity, usually arising out of family relationship or mutual interdependence,

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services rendered by one person to or for another, which are knowingly and voluntarily received, are presumed to be given and accepted in expectation of being paid for, and the law will imply a promise to pay what they are reasonably worth.' But this promise which the law implies is not expanded to imply a promise to pay at death and by will. If the time for payment is to be extended to the death of the recipient of the services, there must be agreement to that effect. Hodge v. Perry, 255 N.C. 695, 122 S.E.2d 677; Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760; Edwards v. Mattews, 196 N.C. 39, 144 S.E. 300; Brown v. Williams, 196 N.C. 247, 145 S.E. 233; Miller v. Lash, 85 N.C. 51.

Plaintiff's parol evidence amply supports his allegation of the close and affectionate relationship existing between him and Minnie. Several witnesses testified to declarations by Minnie of her affectionate regard for plaintiff and her desire that plaintiff should, upon her death, have all of her property. No witness testified to a declaration by Minnie that she had by contract obligated herself to devise and bequeath her property to plaintiff, There was evidence that plaintiff, who resided in Greensboro, went to Surry County when Minnie's first husband died and assisted her in making funeral arrangements, that he visited her on several subsequent occasions, and rendered her other services. Whether plaintiff is entitled to recover on an implied contract to pay for the services rendered (not gratuitously furnished) need not now be determined. Defendant, maintaining that plaintiff's sole remedy, if any he had, was on an implied contract, tendered issues determinative of questions arising on such a theory. The court declined to submit the issues so tendered. It submitted issues relating to a specific contract to devise. Defentant's exception to the issues submitted and to the refusal to submit the issues tendered and the assignments of error based on these exceptions present for determination the correctness of the theory of the trial adopted by the court.

Minnie's estate consisted of both real and personal property. A contract to dispose of such estate by will is a contract controlled by our statute of Frauds which provides: 'All contracts to sell or convey any lands * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed...