Mullins v. Green

• Decision Date: 11 November 1958
• Docket Number: No. 10976,10976
• Citation: 143 W.Va. 888,105 S.E.2d 542
• Court: West Virginia Supreme Court
• Parties: Estol MULLINS v. Charlie C. GREEN et al.

Page 542

105 S.E.2d 542

143 W.Va. 888

Estol MULLINS v. Charlie C. GREEN et al.

No. 10976.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 1958.

Decided Nov. 11, 1958.

Syllabus by the Court

1. A court of equity, in rendering a decree for specific performance, has no power to decree performance in any other manner than according to the terms of the alleged agreement.

2. 'A court of equity views with suspicion a suit to require specific performance of a parol agreement to devise real property and in such case will look not only to the direct proof adduced, but to the surrounding circumstances, as shown by the evidence, in determining whether or not such relief will be granted.' Point 6, Syllabus, Gray v. Marino, 138 W.Va. 585 .

3. 'Equity will not lend its aid to specifically enforce a parol agreement, even though the terms and proof thereof are clear and unambiguous, unless from all the facts and circumstances the court is convinced that such agreement is fair, just and free of suspicion.' Point 3, Syllabus, Gray v. Marino, 138 W.Va. 585 .

D. Grove Moler, Ray Toler, Mullens, for appellants.

Kingdon & Kingdon, Arthur Ritz Kingdon, Mullens, Paul D. Blackshear, Pineville, for appellee.

BROWNING, Judge.

John W. Green, a widower, died August 26, 1952, survived by two sons and four grandchildren, the children of a deceased daughter, Catherine Mullins. He died intestate as to his personal estate, but left a will, dated February 20, 1951, which was duly admitted to probate, by which he devised real estate, consisting of approximately 225 acres situate in Wyoming County, in equal parts to his two sons, describing each devise by metes and bounds.

The heirs at law of Catherine Mullins, including the plaintiff herein, Estol Mullins, contested the will in the Circuit Court of Wyoming County, on the ground that John W. Green lacked the requisite testamentary capacity at the time the will was executed. The Circuit Court of Wyoming County, in March, 1954, entered an order adjudging the will valid and denying the relief prayed for, from which order this Court denied an appeal on November 22, 1954.

Subsequently, on August 12, 1956, plaintiff brought the instant suit seeking specific performance of an oral contract on the part of John W. Green, hereinafter referred to as testator, to make a will in plaintiff's favor. The original bill of complaint alleges that in October, 1946, testator verbally agreed with plaintiff that if plaintiff would move from his home in McDowell County to testator's land in Wyoming County and erect thereon, at plaintiff's expense, a combined grocery store and apartment, and thereafter care for, shelter and support plaintiff's mother, the daughter of testator, testator, at his death, would give and devise to plaintiff a one-twelfth undivided interest in such land, to include the portion on which the buildings were erected, the one-twelfth to be plaintiff's 'heir's' share, as determined by the laws relating to intestacy, should testator die intestate after the death of plaintiff's mother. The bill then alleges full performance by plaintiff and concludes with the above mentioned prayer for specific performance. An amended bill of complaint was subsequently filed wherein it is alleged that, for the consideration set forth in the original bill, testator agreed to give and devise to plaintiff a one-third undivided interest in said land, the one-third interest being that to which plaintiff's mother, then a presumptive heir at law, would be entitled to receive in the event testator died intestate.

Defendants answered denying the alleged contract and, in addition, asserting that any such contract would be unenforceable under the Statute of Frauds, and an issue having been directed out of chancery, a jury was impaneled and the case proceeded to trial. At the conclusion of the trial, the jury returned a special verdict wherein it found that testator had made the contract as alleged in the amended bill of complaint, that is, to devise to plaintiff a one-third interest in the land, and that plaintiff had fully performed his part of such agreement. The trial court disregarded the special verdict of the jury, and, on November 27, 1957, found that a contract had, in fact, been made, but that such contract called only for a devise to plaintiff of one-twelfth of the land, and entered a decree granting the relief prayed for to the extent of one-twelfth, to which judgment this Court granted an appeal on March 31, 1958.

Errors assigned in this Court may be summarized as follows: (1) There was insufficient evidence to support a finding that any contract existed, especially one calling for one-twelfth, which proportion was in no way relied upon by plaintiff; (2) the court erred in admitting the testimony of Lucy Bell and Estol Mullins as to the purported contract; and (3) the court erred in rejecting certain letters of counsel, representing the heirs of Catherine Mullins in the will case, to defendants' counsel, wherein an offer to purchase the land surrounding the store building was made.

The testimony adduced in behalf of the plaintiff is to the effect that: Plaintiff had taken care of and supported his mother and three sisters since his father's death in 1931; in 1946, plaintiff and his family were residing in McDowell County, the plaintiff operating a small grocery store, on land leased at a rental of $5 a year; plaintiff's mother and Lucy, a sister, were residing in an adjoining dwelling; in October, 1946, plaintiff's mother and Lucy were in Kimball, a small town in McDowell County, and met testator and had a conversation with him; over objection plaintiff was asked: 'Were you informed by your mother, Catherine Mullins, or by anyone else that Mr. Green promised that if you would come over into Wyoming County and build a place there for your mother and for your own home and take care of your mother there and your own expenses, that he would will you your mother's heir's interest in his property when he died?', and answered: 'That is correct.'; thereafter plaintiff moved to Wyoming County and erected a storeroom with an apartment upstairs and a small two room dwelling house for his mother, both of which were within 300 or 400 yards of the house in which testator lived; approximately one-half of the lumber used in the construction of the buildings was cut from testator's land, for which no payment was made; plaintiff expended approximately $6,000 in erecting the buildings; and, the original language of the bill in calling for only a one-twelfth interest was a mistake on the part of plaintiff's counsel, and that plaintiff had at all times claimed a one-third interest under the agreement.

Lucy Bell testified, over objection, that she had accompanied her mother to Kimball at the time they met testator and that testator said: 'He could build anywhere he wanted to, that he wouldn't lose it, that he aimed for him to have his mother's heir's part if he taken care of me and her.' She also testified that soon thereafter she married and moved elsewhere and did not accompany her mother to Wyoming County, although she visited her mother for short periods in the home erected by plaintiff, and, after her husband went into military service in August, 1948, she moved in with her mother and remained until after her mother's death in 1949; that she purchased groceries from plaintiff; and that plaintiff supplied wood and other things for his mother.

Plaintiff's mother-in-law testified that testator had told her that he intended for plaintiff to have his mother's share of the property, and other witnesses testified that in conversations with testator they inferred that plaintiff had some right to the property.

Defendants' evidence consisted mostly of the testimony of close relatives and frequent visitors of the testator, to whom no mention of any such contract was ever made by the testator. There was testimony...