Pair v. Rook

• Decision Date: 10 September 1953
• Citation: 195 Va. 196,77 S.E.2d 395
• Court: Virginia Supreme Court
• Parties: IDA WHITLOCK PAIR, MARY ALICE PAIR, BARTHOLOMEW AND PERCY LEE PAIR v. BRUTUS W. ROOK, MARY ROOK LYERLY, KATHLEEN ROOK LIGON, ALICE ROOK LIGON, RACHEL CORLETTE ROOK, ADMINISTRATRIX OF THE ESTATE OF P. I. ROOK, DECEASED, RACHEL CORLETTE ROOK, IN HER OWN RIGHT

Page 395

77 S.E.2d 395

195 Va. 196

IDA WHITLOCK PAIR, MARY ALICE PAIR, BARTHOLOMEW AND PERCY LEE PAIR v. BRUTUS W. ROOK, MARY ROOK LYERLY, KATHLEEN ROOK LIGON, ALICE ROOK LIGON, RACHEL CORLETTE ROOK, ADMINISTRATRIX OF THE ESTATE OF P. I. ROOK, DECEASED, RACHEL CORLETTE ROOK, IN HER OWN RIGHT.

Supreme Court of Appeals of Virginia

September 10, 1953.

Thomas A. Williams, Thomas A. Williams, Jr., W. W. Beverley and Beverley H. Randolph, Jr., for the appellants.

A. S. Harrison, Jr. and L. C. Harrell, Jr., for the appellees.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This is a suit brought by appellants for the specific performance of an alleged parol agreement between Mary Moore Rook and her husband, P. I. Rook, for the devise of all of the property of P. I. Rook, which agreement is sought to be taken out of the operation of the statute of frauds upon the ground of part performance.

P. I. Rook was an uneducated, hardworking, successful business man, who accumulated a large and valuable estate. He was married three times. He first married Mary Lee Rook, by whom he had a son, Brutus W. Rook, born August 9, 1901. Mary Lee Rook died shortly after the birth of her son. P. I. Rook married Mary Moore Rook in 1904, and lived with her until she died May 15, 1950. She had the benefit of some education and assisted her husband in his business affairs. By her last will and testament, dated February 8, 1940, she devised all of her property to her 'beloved husband,' and named him as the executor of her will.

On May 19, 1951, P. I. Rook married the appellee, Rachel Corlette Rook, which marriage was terminated by his death four days later. The widow qualified as administratrix of his estate.

Brutus W. Rook, the son and only child of P. I. Rook, married and had three children, Mary Rook Lyerly, Kathleen Rook Ligon and Alice Rook Ligon, who are among the named appellees.

The appellant, Ida Whitlock Pair, was born on January 23, 1907. She is a daughter of the late Mrs. Carrie Moore Whitlock, a sister of Mary Moore Rook. After the death of Carrie Moore Whitlock, Mary Moore Rook took her infant niece, Ida, into her home in 1909. Ida and Brutus W. Rook, son of P. I. Rook by his first marriage, were reared together as though they were sister and brother, and the children of P. I. and Mary Moore Rook. Brutus was eventually set up in business in North Carolina by his father. Ida continued to live with the Rooks until she was married. After her marriage, she and her husband lived on and operated a farm owned by P. I. Rook. Ida and her two children, Mary Alice Pair Bartholomew and Percy Lee Pair, are the three appellants herein.

P. I. Rook executed two wills prior to his marriage to Rachel Corlette Rook. By the terms of his first will made in March, 1950, he devised certain specified portions and parcels of his property in fee simple to his wife, Mary Moore Rook and divided the remaining portions among the appellants and appellees to this cause, except Rachel Corlette Rook, either in fee simple or for life with remainder to their children.

On October 21, 1950, Rook made his second will, revoking the first. In this will he gave and devised to Brutus W. Rook and his children and to Ida Whitlock Pair and her children the properties devised in his first will to his deceased wife, Mary Moore Rook. The second will was revoked by his marriage to Rachel Corlette Rook, by virtue of § 64-58 of the 1950 Code of Virginia, and P. I. Rook consequently died intestate.

The bill of complaint filed by appellants alleged:

'That P. I. Rook and Mary Moore Rook in their later years became concerned about the distribution of their property being particularly anxious about Ida Whitlock Pair and her children, since she was not their daughter, and accordingly reached an understanding about the distribution of their property which became and amounted to a mutually binding contract. This contract provided for the distribution of both realty and personalty in a definite and set way if the said Mary Moore Rook should survive her husband, which eventuality did not occur however, and for the distribution of both realty and personalty in a definite and set way if P. I. Rook should survive his wife, which eventuality did occur. Mary Moore Rook died May 15, 1950. The agreement as to the eventuality that did occur is as follows:

'A. Mary Moore Rook was to leave all her estate to her husband by her will.

'B. P. I. Rook was to leave his estate as follows:

(Here follow twenty-six paragraphs listing the estate of P. I. Rook and its proposed distribution, as set out in Rook's will, dated October 21, 1950.)

'That Mary Moore Rook performed her part of the agreement by leaving a will devising and bequeathing her entire estate to P. I. Rook, * * *.

'That P. I. Rook attempted to carry out his part of the agreement by making a will October 21, 1950, * * *.

'That said attempted will of P. I. Rook is somewhat different' from the agreement above set out because he later bought other property and exchanged certain parcels of land for other parcels.

'That P. I. Rook inadvertently and contrary to his will and wishes was prevented from carrying out his part of said contract because of his unexpected and untimely death within four days' after he married Rachel Corlette Rook, and before he had an opportunity to make a new will, and because of the effect and operation of § 64-58 of the 1950 Code of Virginia.

'That to permit the estate of P. I. Rook to pass under' the Virginia statute of descent and distribution, by reason of his death intestate, 'would work a fraud on the deceased Mary Moore Rook, and on the beneficiaries of her contract with P. I. Rook, she having performed her part of the agreement and left all her estate to her husband, P. I. Rook, and further directly contrary to the well known and often expressed wishes of P. I. Rook, * * *.'

The appellees demurred to the bill on the grounds that the facts alleged were not sufficient to take the contract from under the operation of the statute of frauds, in that the alleged parol agreement is not certain and definite in its terms, and that the acts alleged to be in part performance do not refer to, result from, or show that they were made in pursuance of any agreement.

Appellants thereupon took the evidence of E. E. Eanes, an attorney who prepared the wills of both Mary Moore Rook and P. I. Rook, hereinbefore referred to, and filed his deposition as a part of the record.

Mr. Eanes testified that he prepared the will of Mrs. Mary Moore Rook, and the only reason she gave him for executing it was that she 'was sick and wanted to make a will;' that he and his secretary were the only persons present and the sole subscribing witnesses thereto; and that, at no time, did she say or intimate that she had any agreement, contract, or understanding with her husband concerning the manner in which she and he would dispose of their properties. Mr. Eanes said that he had acted as counsel for P. I. Rook subsequent to December, 1945; that in 1950, Rook consulted him with reference to writing his will, and brought him a rough memorandum of his property and the manner in which he desired to dispose of the same; that he found it necessary to go to the clerk's office and make a complete list of the real estate owned by Rook; that Rook designated the person or persons to whom he desired specific portions or parcels of his properties devised; that pursuant to these instructions he prepared the will of March, 1950; and that, at no time, did Rook ever mention or refer to any agreement or understanding which he might have had with Mary Moore Rook concerning the disposition of his or her property.

Eanes declared that after the death of Mary Moore Rook, he told P. I. Rook that he ought to change his will; and that finally Rook came to his office and executed the will of October 21, 1950. In this second will, the property which had been formerly given to Mary Moore Rook was devised to Ida Whitlock Pair and Brutus W. Rook and their children, in specified parcels and portions.

On Wednesday or Thursday, May 16th or 17th, 1951, Rook requested Eanes to come to his home after lunch, so that he might talk with him about drawing up a will. Eanes complied with the request. It developed that Rook expected to contract a third marriage two or three days later. He was advised by Eanes that because of the Virginia statute, it would be necessary that the will be executed after the marriage but not before. Rook did not discuss any changes in his former will. He only said that he was going to make another will, stating 'I want to protect the lady I am going to marry.' He did not mention any agreement or contract with Mary Moore Rook with respect to the disposition of their properties. Rook promised to come to Eanes' office on Friday morning, May 18th, at which time his will was to be drawn for execution after his marriage. Rook failed to keep his appointment with Eanes, was married on May 19, 1951, went on his honeymoon, and died on May 23, 1951, without making a new will.

Appellants then filed an amended bill for specific performance. In this bill they alleged that P. I. Rook and Mary Moore Rook 'reached a preliminary or general understanding, that Mary Moore Rook should leave her property to P. I. Rook, and that P. I. Rook should look out for the complainants in the distribution of his and his wife's combined estate; that accordingly, having confidence in her husband to carry out his promise to her,' she executed her will of February 8, 1940, leaving all of her property to him; that thereafter Mary Moore Rook 'frequently asked her husband to perform his part of the agreement by making his will, and finally threatened to change or destroy her will if he did not do so;' and that 'finally P. I. Rook began steps to make his will in pursuance of his agreement, and he and Mary Moore Rook then discussed details of distribution,...