Poling v. Bennett
| Decision Date | 19 April 1927 |
| Docket Number | 5962. |
| Citation | 137 S.E. 883,103 W.Va. 456 |
| Parties | POLING v. BENNETT. |
| Court | West Virginia Supreme Court |
Submitted April 12, 1927.
Syllabus by the Court.
Where the owner of a life estate in land verbally agrees with the remainderman that she will give him her life estate if he will dispose of his own land and move onto the land in which she has the life estate and there maintain and support her for the remainder of her life, and the remainderman, in compliance with the terms of the parol agreement, has disposed of his own land, and received from her actual and exclusive possession of the land in which she has the life estate, which possession has continued openly and notoriously for many years during which she has received support and maintenance as agreed, and he has placed valuable improvements upon the land, equity will decree a specific performance of the agreement.
A finding of fact by the trial court from conflicting depositions is entitled to peculiar weight, and will not be disturbed by the appellate court unless manifestly wrong.
Appeal from Circuit Court, Barbour County.
Suit by Monterville Poling against Lettie Bennett for an injunction. From a decree for plaintiff, defendant appeals. Affirmed in part, modified in part, and remanded.
W Bruce Talbott, of Philippi, for appellant.
J Blackburn Ware and Paul B. Ware, both of Philippi, for appellee.
This is a suit by plaintiff, Monterville Poling, to enjoin the defendant, Lettie Bennett, from prosecuting an action of unlawful detainer to recover certain lands from Poling, and to have a parol contract concerning the same lands specifically enforced. The cause came on to be heard upon the bill, demurrer, answer, and general replication thereto, and depositions taken on behalf of both parties, whereupon the trial chancellor entered the decree appealed from, decreeing that defendant be restrained from the further prosecution of her unlawful detainer action, that the parol contract mentioned above should be specifically enforced, and a deed made by defendant conveying her life estate in a 76-acre tract of land to plaintiff.
Asa O Bennett died seized of a tract of land containing about 76 acres, situated in Barbour county, W.Va. In his will he devised and bequeathed to his wife, Lettie Bennett (defendant), the home farm of 76 acres for life, and one-half of his personal property. After the termination of the wife's life estate in the tract of land, the remainder in fee was devised to Monterville Poling, the husband of Betsey Ellen Poling, a daughter of the decedent. The remainderman was charged with the payment of $300 to Alverta Bennett, another daughter of the testator, and the will contained the further provision that the remainderman was to furnish the life tenant, Lettie Bennett, with board and clothes and other necessities during her lifetime, and was to provide a decent burial for her at her death.
Upon the decease of Asa O. Bennett, his wife, Lettie Bennett, took up her abode with her daughter Betsey Ellen Poling and Monterville Poling, her son-in-law, who lived a short distance from the Asa Bennett farm. Defendant took her meals with the Polings and sometimes spent the night with them. After this arrangement had continued for about three weeks according to the plaintiff's witnesses, Mrs. Bennett became dissatisfied with living at the Poling place, and she induced the plaintiff to sell his 28-acre farm and move his family to the Asa Bennett land, by promising that she would give him her life estate if he would take charge of the Bennett farm and provide for her support there. For the last seven or eight years plaintiff has had full control of the Bennett home place, and has farmed a portion of it and has made a number of valuable improvements thereon. During this time, the defendant, a woman now about 76 years of age, lived with the Polings and was provided with support and maintenance by them. Finally, she decided, probably because she thought she would be happier to have some one else on the home place, to obtain exclusive possession of it. And so, one day, she left the farm and went to visit a daughter at Philippi. She told the Polings that she would be gone but a short time. The day after she left a notice was served upon the plaintiff, directing him to vacate the premises. Plaintiff thereupon served a counter notice upon her, stating that he was relying upon the parol contract between the parties as to life interest of defendant in the Bennett farm. At a later date defendant instituted an action of unlawful detainer before a justice of the peace, and plaintiff secured a temporary injunction restraining her from prosecuting said action, and this suit was begun, with the result above detailed.
Does the evidence justify the trial chancellor in decreeing specific performance of the alleged parol contract under the terms of which the defendant promised to give the plaintiff her lifetime interest in the 76-acre tract if he would sell his farm and move to the Bennett place and take care of her there? In determining this question we will follow the order adopted by the trial chancellor in discussing this question in its various phases, namely: (1) Has the plaintiff proved the parol contract as charged in the bill? (2) Did the plaintiff in pursuance of this agreement take actual possession of the land, and was that possession open, notorious, and exclusive? and (3) Did the plaintiff in pursuance of such agreement and possession make permanent improvements upon the land?
Five witnesses testified for the plaintiff on the first point--the proving of the parol contract. Frona Poling, Betsey Ellen Poling, and Monterville Poling say that they were all present at the home of Monterville Poling on his 28-acre tract, after the death of Asa Bennett. when defendant told the plaintiff that she would give him her life estate in the Asa Bennett place if he would sell his tract of land and move up to the Bennett farm and take care of her there. The witnesses differ as to the exact time of day this conversation took place, but as seven years had passed, this would not seem to be unusual. However, their evidence as to the substance of the agreement is substantially the same. W. D. Poling, the husband of the witness Frona Poling, states that defendant told plaintiff to go ahead and sell his home and use the Bennett farm as his own. The witness further testified that the plaintiff had sold him his 28-acre tract not very long from the time the plaintiff moved up to the Bennett farm. Although the witness was said to have been present on the occasion defendant stated sh...
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Moats v. Poling
...not be on the home farm itself, and that the maintenance is a lien upon the real estate (reference is had to the case of Poling v. Bennett, 103 W.Va. 456, 137 S.E. 883); that some time after the death of the testator, Mrs. elected to live with the plaintiffs, who at her request maintained h......
- Mahan v. Bitting