Merchants Nat. Bank of Mobile v. Cotnam

• Decision Date: 22 January 1948
• Docket Number: 1 Div. 301.
• Citation: 250 Ala. 316,34 So.2d 122
• Parties: MERCHANTS NAT. BANK OF MOBILE v. COTNAM.
• Court: Alabama Supreme Court

34 So.2d 122

250 Ala. 316

MERCHANTS NAT. BANK OF MOBILE v. COTNAM.

1 Div. 301.

Supreme Court of Alabama

January 22, 1948

Rehearing Denied March 11, 1948.

Caffey Gallalee & Caffey, of Mobile, for appellant.

Johnston, McCall & Johnston and Ambrecht, Inge Twitty & Jackson, all of Mobile, for appellee.

The following charges were refused to defendant:

'17. The Court charges the jury that a contract of the kind involved in this suit, is regarded with suspicion, and that such a contract cannot be sustained except upon the strongest evidence that it was founded upon a valuable and legal consideration and deliberately entered into by the decedent with the intent to make a contract.

'32. The court charges the jury that to sustain an oral contract to make a will the evidence of such contract must be clear, satisfactory and convincing, and must establish the contract beyond a reasonable doubt.'

FOSTER Justice.

This proceeding is for the purpose of testing the validity of a claim which was filed by Mrs Ethel W. Cotnam against the estate of Thomas S. Hunter, deceased, in the Mobile Probate Court. The claim was filed within the statutory period of six months. Section 211, Title 61, Code.

The beginning of this contest was a petition and notice filed by the administrator of the estate of Thomas S. Hunter, the Merchants National Bank of Mobile, making application to the probate court 'to hear and pass on the validity of the claim filed by Ethel W. Cotnam against said estate on, to-wit, July 27, 1945, which claim the administrator disputes in whole.' It is as follows:

'Estate of T. Shannon Hunter, deceased, In account with Ethel W. Cotnam Amount owing and due to Ethel W. Cotnam under an agreement between T. Shannon Hunter and Ethel W. Cotnam, by which she was to receive and be paid a sum equal to one-fifth (1/5) of the value of his estate, which agreement has been fully performed on her part, and for services rendered $175,000.00.

State of Alabama

County of Mobile

Before me, the undersigned authority in and for said County and State, personally appeared Ethel W. Cotnam, who being by me duly sworn, on oath deposes and says, that the foregoing claim or statement is correct as therein set forth, and that the amount therein stated is justly due her by the estate of T. Shannon Hunter, deceased, after allowing all proper credits.

(Signed) Ethel W. Cotnam.

Sworn and subscribed to before me this 27th day of July, 1945.

(Notarial Seal)

(Signed) Thelma Power

(Affixed) Notary Public, Mobile County, Alabama.

Filed July 27th, 1945.'

The authority for such a contest in section 216, Title 61, Code as amended by Acts of 1943, page 380, approved July 1, 1943.

The probate judge heard such petition, without further pleading on the part of the administrator or the claimant, and on November 8, 1945, rendered a decree finding 'that the proof is insufficient to show that there was any contract between Ethel W. Cotnam and Thomas Shannon Hunter, deceased or that the said Ethel W. Cotnam ever performed any services for the said deceased, or that said decedent or his estate is indebted to Ethel U. Cotnam in any amount whatsoever.' The court therefore ordered, adjudged and decreed that the claim 'is invalid, and that neither the decedent nor his estate is in anywise indebted to the said Ethel W. Cotnam.' No issue was made as to a compliance with sections 211 and 214, Title 61, Code.

An appeal was taken to the circuit court, as authorized by the law cited above, in which it is provided that 'the trial of the validity of said claim in said circuit court shall be de novo and upon demand, of either party, filed in the circuit court within thirty days from the taking of said appeal shall be tried by a jury.'

Thereupon the administrator, styling himself as the defendant, made a motion to require the claimant to file a complaint stating any cause of action which she might have on said claim. The court made such order, and thereupon the claimant, styling herself as the plaintiff, filed a complaint without alleging whether or not the claim sued upon has been filed as required by sections 211 and 214, supra.

The defendant, so styled as the administrator of the estate, filed demurrers, but those demurrers do not go to the point that the complaint makes no allegations with reference to the requirements of sections 211 and 214, supra. There were several amendments to the complaint also filed which are in the same status in that respect. Finally pleas were filed by the defendant, which in addition to the general issue, set up a failure to comply properly with sections 211 and 214, supra, in that, the claim as filed did not meet its requirements. After demurrers to said pleas had been overruled, plaintiff filed a replication thereto showing that pending the time when the pleadings in this cause were being settled and determined by the court, and on, towit, November 2, 1946, plaintiff amended said claim or statement of claim theretofore filed by presenting an amended claim or statement thereof, a copy of which was attached and made a part of the replication. The defendant demurred to said replication upon the ground that the plaintiff had no legal right or authority under sections 211 and 214, supra, to amend a defective claim in an attempted compliance therewith, and that the amendment of the claim of the plaintiff then filed could not be considered as a compliance with sections 211 and 214, supra. The court overruled said demurrer, and issue was taken.

Upon the trial by a jury on the issue made, consisting of the general issue to the complaint and the pleas and replication, mentioned above, there was a verdict for the plaintiff, assessing the damages at $120,000. The court thereupon ordered and adjudged that she have and recover of the defendant $120,000, and costs, and ordered execution. After overruling a motion to set aside the judgment and for a new trial, and on motion of defendant, the court amended the judgment theretofore rendered by eliminating 'therefrom the provision that execution issue for the amount of damages assessed by the jury in this cause.'

The first matter presented for the attention of the court in this case is the sufficiency of the claim as filed by plaintiff against the estate on July 27, 1945, within the period of six months after the issuance of letters of administration: claimant contending that the claim so filed was sufficient; but that if it is found not to be sufficient, then that she had the right to amend the claim, as she did on November 2, 1946, pending the appeal by giving more detail with respect to the nature of her claim.

Attention is called to the fact that under section 216, supra, as amended, the notice required to be given should specify that the claim is disputed in whole or in part, and if in part specify the part disputed. The notice which was given stated that the claim was disputed in whole, and sought to have determined the validity of it.

We do not here consider the question of whether such a notice is sufficient to present an issue to determine whether the claim as filed was sufficient under sections 211 and 214, supra.

But this case was tried on appeal on that issue without any question being raised as to whether the notice given by the administrator presented it.

The argument of counsel in the particular matter now under consideration is directed first to the sufficiency of the claim as filed July 27, 1945, and then to the right of the claimant to amend such claim pending the hearing and after the expiration of six months, as was attempted to be done on November 2, 1946.

The nature of plaintiff's claim, as set out in the amended complaint, and in the amendment to the written claim as filed, is in substance that she and the deceased during the month of June 1940 made a verbal agreement, by which she agreed to give up her position and cease working at the Saenger Theater in the city of Mobile, where she was then and there gainfully employed, and to move from Spring Hill to an apartment or residence in the city of Mobile, and thereafter to render services and attention to the said Hunter during his remaining lifetime as an attendant or friend, in consideration of which he agreed to make a will by the terms of which she would at his death be bequeathed by him, or receive from his estate thereunder, a sum equal to one-fifth of the value of said estate at the time of his death, which agreement and services were performed on her part, and which were not performed on his part.

We have held that agreements of this kind, when they are not within the statute of frauds, or when the statute of frauds has been complied with, are binding, and 'create an equitable right in the nature of a trust enforceable against the personal representative of the deceased as a covenant to stand seized to the use of the promisee.' And that 'if one in such manner agrees to provide a legacy out of his estate, or a certain sum so payable at his death, his personal representative succeeds to the estate of decedent encumbered with a burden in the nature of a trust to pay the same as contracted by decedent. Such a right being contractual, is not affected by a will or its probate. (While in life he may dispose of his estate.) 'But out of what he leaves, which descends or is subject to his will, he has bound himself for a valuable consideration, effective against his personal representative, that his promisee shall have a stipulated sum. He has thereby created a trust on his descendable property to that extent.' Those principles have been repeatedly reaffirmed. Hendrix v. Pique, 237 Ala. 49, 185 So. 390; Stone v. Burgeson, 215 Ala. 23, 109 So. 155; Allen v. Bromberg, 147 Ala. 317, 41 So. 771; Bolman...