McLauchlin v. Gressette, 16799

• Decision Date: 12 November 1953
• Docket Number: No. 16799,16799
• Citation: 224 S.C. 296,79 S.E.2d 149
• Court: South Carolina Supreme Court
• Parties: McLAUCHLIN et al. v. GRESSETTE et al.

Page 149

79 S.E.2d 149

224 S.C. 296

McLAUCHLIN et al. v. GRESSETTE et al.

No. 16799.

Supreme Court of South Carolina.

Nov. 12, 1953.

The following is the order of Judge Brailsford:

This action to enforce specific performance of an alleged oral contract to devise real estate is before me on exceptions by plaintiffs to the report of Honorable C. E. Summers, Special Referee, which recommended dismissal of the complaint, principally upon the ground that the alleged contract has not been established by testimony which is 'clear, strong and convincing'.

The original plaintiffs were W. Frank McLauchlin and his wife, Myrtis McLauchlin. The defendants are Honorable L. Marion Gressette and others as Trustees of the First Baptist Church of St. Matthews and Ernest Whetstone and E. W. Keller, as executors of the will of Lula Buyck Keller, deceased. The plaintiff, W. Frank McLauchlin, died pending the action, survived by his wife and his son, W. Frank McLauchlin, Jr., as his only heirs at law, and proper substitution of parties has been made. Unless otherwise specified, reference to plaintiffs in this order will designate the original plaintiffs.

The claim of plaintiffs as set forth in the complaint is, briefly, as follows: On or about August 1st, 1948, Mrs. Keller, the testatrix, proposed to plaintiffs that if they would move into an apartment in her home in the town of St. Matthews and live there and assist her until her death, she would devise the home to them by her will. Plaintiffs thereafter accepted this offer, moved into the apartment and fully performed the agreement on their part until the death of the testatrix on March 21, 1950. In violation of the agreement, Mrs. Keller left of force a will dated August 24, 1951, whereby she devised the property in question to the Trustees of the First Baptist Church of St. Matthews. The prayer of the complaint is that defendants be directed to specifically perform the alleged agreement by conveying the property to plaintiffs.

The answer is, in effect, a denial of the allegations of the complaint with respect to the making of the contract and its performance by plaintiffs and the plea of the Statute of Frauds as a bar to the action.

Only three issues arise on these pleadings. (1) Has the alleged contract been established by the testimony? (2) If so, have plaintiffs performed on their part? (3) Is the action barred by the Statute of Frauds?

It follows that if the first two questions are answered in the affirmative and the third question is answered in the negative plaintiffs will be entitled to the relief sought.

(1) Has the Contract Been Established?

After a painstaking study of the record, I unfortunately, find myself in disagreement with the sale Special Referee as to the sufficiency of the testimony to meet the strict burden of proof required to establish an oral contract to devise the property in question to plaintiffs. A somewhat extensive review of the evidence bearing on this issue is therefore necessary.

In my judgment, it can be fairly said that the following facts are undisputed.

The testatrix, Mrs. Lula Buyck Keller, became a widow for the second time some ten years prior to the commencement of this action. She had no children and her nearest relatives were a number of nieces and nephews, among whom were three brothers, F. Buyck McLauchlin, Lawrence McLauchlin and the plaintiff, W. Frank McLauchlin.

Possessed of considerable wealth (her estate was appraised at $87,577.71) she owned and occupied a substantial residence (appraised at $12,500) in the town of St. Matthews. This residence was so arranged that a portion of it could be, and usually was, occupied as a separate apartment.

Mrs. Keller was served by a faithful maid and cook who did not 'live in' ordinarily, but who was available as a nurse in time of need, and she also had a yard boy. In addition she selected the occupants of the apartment more from the standpoint of congeniality than from income. Nevertheless she considered it desirable to induce some member of her family to come to live with her for the remainder of her life.

While by no means an invalid, she was of advanced age, blind in one eye following an operation to remove cataracts and had a heart condition. She was independent by nature and liked to do things for herself. But she could not drive her automobile and was apprehensive about being alone in a helpless old age.

In 1943 or 1944 she explained her desires and, at least in part, the reasons for them to her nephew, F. Buyck McLauchlin. She told him that if his brother Lawrence McLauchlin and Lawrence's wife, Lucile, would move into her home and live with her until she died she would leave it to them by her Will. At her request, or with her consent, Mr. McLauchlin related this conversation to his brother. After further discussion between the principals, Lawrence and Lucile disposed of some of their household goods and moved into that portion of the dwelling occupied by Mrs. Keller. They lived together as a family and Mrs. Keller paid all of the household expenses, including the provision of food, fuel, utilities, etc.

Everyone concedes that Mrs. Keller at that time obligated herself to devise the home to Lawrence and Lucile if they would remain with her until her death.

However, despite the strong inducement of free living expenses and the promise of the home, the arrangement proved mutually unsatisfactory and, in the words of one witness, the parties 'agreed to disagree'. This was after they had lived together for about one year. This couple then moved into the other apartment in Mrs. Keller's home and lived there for a month or six weeks, while waiting for the house which they had formerly occupied to be vacated. They paid no rent for this period and, when they left, Mrs. Keller gave them $250, either as consideration for the rescission of the agreement or as a gratuity to help them restore some of the things they had disposed of.

It may be interpolated here that although Mrs. Keller was regarded as a religious woman of good moral character, all of the witnesses who testified to the point agreed that she was rather difficult to live with because of her imperious nature. She was positive and assertive, knew what she wanted and was not inclined to tolerate opposition to her wishes from those closely associated with her.

Apparently Mr. Fairey Prickett moved into the separate apartment shortly after Lawrence and Lucile left. He paid only $20 per month rent, although testifying that he would gladly have paid $45. The defendants' explanation, and probably the correct one, on this discrepancy is that Mrs. Keller wanted him in the apartment because of her close relationship with his family. It was not until he was about to leave, after an occupancy of three years, that Mrs. Keller renewed her effort to arrange for a member of the family to live with her.

Again she first discussed the question with F. Buyck McLauchlin. As the result of overtures which she made to them, first through him as intermediary and later in person, the plaintiffs, Frank McLauchlin, and his wife Myrtis in August of 1948, after some hesitation on their part, moved into the separate apartment in Mrs. Keller's home. They resided there until after the death of testatrix on March 21, 1952.

The plaintiffs were not ordinary tenants. They paid no rent. They were there under some agreement proposed by Mrs. Keller which resulted in the mutual recognition of obligations incurred by them to her.

The sharp issue of fact between the parties is as to the terms of the proposal made by testatrix to plaintiffs; whether, as contended on the one hand, she promised them the home at her death, or whether, as contended on the other, she merely agreed that they might occupy the apartment free of rent.

With this background in mind let us turn to the evidence on which plaintiffs rely to establish the oral contract.

First the intermediary: F. Buyck McLauchlin testified that he made a point of visiting his aunt at least once a week. On one of these visits she asked him whether he thought that plaintiffs, the witness' brother and sister-in-law, would come to live with her. She said, 'Would you mind feeling them out and see how they feel about it? I think we can get along if they will come and live with me. I will make the same proposition, (as that formerly made through this witness to Lawrence and Lucile, interpolated) leave them the home at my death.'

Although the words 'same proposition' were used, Mrs. Keller made it clear in this initial conversation that she wanted plaintiffs to move into the separate apartment, which was about to be vacated by Mr. Prickett. She did not propose a repetition of the living arrangement which had been unsatisfactory with the other couple.

Plaintiffs were living nearby in an apartment rented from Mrs. Charlotte McLauchlin Whetstone, a favorite niece of testatrix. The witness promptly related Mrs. Keller's proposal to them. He had no further conversation with Mrs. Keller about the terms of the arrangement or agreement, either before or after plaintiffs moved into her home.

Only one other witness testified to any statement made by Mrs. Keller before plaintiffs finally accepted and acted upon her proposal. Mrs. W. B. Hildebrand, the operator of a beauty parlor in St. Matthews, which was regularly patronized by testatrix, testified that Mrs. Keller told her that 'she was trying to get Myrtis and Frank to move in the house and was going to give them her house after her death * * *. She wanted Myrtis to be free, to drive her around and wait on her * * * wanted someone without ties or job, she was giving them the house at her death to do that her.'

This testimony may be as consistent with the expression of an intention on the part of testatrix as it is with a contractual offer. Nevertheless, the conversation must have taken place after she made a proposal to plaintiffs through Buyck...