Rape v. Lyerly

• Decision Date: 26 June 1975
• Docket Number: No. 94,94
• Citation: 215 S.E.2d 737,287 N.C. 601
• Court: North Carolina Supreme Court
• Parties: , 84 A.L.R.3d 908 Donald G. RAPE et al. v. Woodrow W. LYERLY et al.

Page 737

215 S.E.2d 737

287 N.C. 601, 84 A.L.R.3d 908

Donald G. RAPE et al. v. Woodrow W. LYERLY et al.

No. 94.

Supreme Court of North Carolina.

June 26, 1975.

Kluttz & Hamlin by Lewis P. Hamlin, Jr., Richard R. Reamer, and Malcolm B. Blankenship, Jr., Salisbury, for plaintiffs-appellees.

Collier, Harris, Homesley, Jones & Gaines by Walter H. Jones, Jr., Mooresville, for defendants-appellants.

SHARP, Chief Justice:

We consider first defendants' contentions (1) that the evidence was insufficient to warrant a finding that Mr. Jim contracted to devise his real property as alleged by plaintiffs and (2) that the writing signed by Mr. Jim was insufficient to comply with G.S. § 22--2, our statute of frauds.

Although an oral contract to devise land is unenforceable, Pickelsimer v. Pickelsimer, 257 N.C. 696, 698, 127 S.E.2d 557, 559 (1962), a valid written contract to devise land is enforceable in equity. Schoolfield v. Collins, 281 N.C. 604, 615--16, 189 S.E.2d 208, 215 (1972).

'An annotation following Naylor v. Shelton, 102 Ark. 30, 143 S.W. 117, Ann.Cas.1914A, 394 (1912), contains this statement '(W)hile a court of chancery is without power to compel the execution of a will, and therefore the specific execution of an agreement to make a will, cannot be enforced, yet if the contract is sufficiently proved and appears to have been binding on the decedent and the usual conditions relating to specific performance have been complied with, then equity will specifically enforce it by seizing the property which is the subject matter of the agreement, and fastening a trust on it in favor of the person to whom the decedent agreed to give it by his will.' Ann.Cas.1914A at 399. This statement is quoted with approval in Stockard v. Warren, supra (175 N.C. 283) at 285, 95 S.E. (579) at 580, and in Clark v. Butts, 240 N.C. 709, 714, 83 S.E.2d 885, 889 (1954).' Schoolfield v. Collins, Supra at 616, 189 S.E.2d at 215.

Plaintiffs rely upon the 1959 will, specifically the paragraph thereof designated 'FOURTH,' as a memorandum of a valid contract to devise land in compliance with G.S. § 22--2. Its sufficiency As a contract must be determined by application of legal principles stated by Justice Rodman in McCraw v. Llewellyn, 256 N.C. 213, 217, 123 S.E.2d 575, 578, 94 A.L.R.2d 914, 920 (1962), as follows: 'The mere exercise of the statutory right to dispose of one's property at death is not of itself evidence that the disposition directed is compelled by a contractual obligation. The writing must show The promise or Obligation which the complaining party seeks to enforce. (Citations omitted.)' (Our italics.)

In Mayer v. Adrian, 77 N.C. 83, 88 (1877), Justice Bynum, for the Court stated: 'The agreement must adequately express the Intent and Obligation of the parties. Parol evidence cannot be received to supply anything which is wanting in the writing to make it the agreement on which the parties rely.' (Our italics.) This statement is quoted with approval in Chason v. Marley, 224 N.C. 844, 845, 32 S.E.2d 652, 653 (1945), and McCraw v. Llewellyn, Supra, 256 N.C. at 217, 123 S.E.2d at 578, 94 A.L.R.2d at 920. See Restatement, Contracts, Second, Tentative Drafts Nos. 1--7, Revised and Edited § 207 (1973).

The memorandum on which plaintiffs rely designates the property to be devised, identifies the parties, sets forth their respective obligations as consideration for their contract, and is signed by Mr. Jim, the party to be charged therewith. Hence, it was sufficient as a memorandum to devise 'for the purposes of the statute of frauds.' 72 Am.Jur.2d, Statute of Frauds § 304 (1974); Annot., 'Statute of frauds: will or instrument in form of will as sufficient memorandum of contract to devise or bequeath,' 94 A.L.R.2d 921, 931--34, 947--954. Moreover, being in the form of a will, the memorandum fixes the precise manner in which Mr. Jim is to dispose of his real property in performance of his obligations under the contract. The contract involved in Bumpus v. Bumpus, 53 Mich. 346, 19 N.W. 29 (1884), cited by defendants, was held unenforceable because of the vagueness of the obligations of the promisee.

In the Restatement, Contracts, § 207 at p. 279 (1932) and Restatement, Contracts, Second, Supra at 464, after stating the general requisites of a memorandum, in order to make enforceable a contract within the Statute of Frauds, this illustration is given: 'A makes an oral contract with B to devise Blackacre to B, and executes a will containing the devise and a recital of the contract. The will is revoked by a later will. The revoked will is a sufficient memorandum to charge A's estate.'

There was ample evidence to support the jury's affirmative answer to the first issue, a finding that Mr. Jim contracted to devise his real property to Mildred for the consideration and upon the conditions set forth in the paragraph designated 'FOURTH' in the 1959 will. There was also ample evidence to support the jury's affirmative answer to the second issue, a finding that Mildred, during her lifetime, performed her obligations as contemplated by the contract.

We note here that Mildred, Basil, and the Rape children, had lived with Mr. Jim and Miss Pearl from 1945 until 1959. The evidence discloses that in 1959 (1) the five members of the Rape family could not continue to live in the Lyerly house unless additional rooms were provided; and that (2), having lived with Mildred, Basil, and the Rape children for the past fourteen years, Mr. Jim and Miss Pearl knew the kind of care they might reasonably expect in the days ahead, and they desired to continue the relationship with that family.

We further note that, beginning in 1946, the expenses of the two households, Woodrow's household and the Rape-Lyerly household, were paid from partnership funds, and that this continued throughout the subsistence of the formal partnership agreement between Woodrow and Basil, that is, until 1 August 1969. The evidence discloses that these payments, which benefited Mr. Jim and Miss Pearl directly or indirectly, constituted the care provided by Woodrow in discharge of His obligations under the paragraph designated 'FOURTH' of the 1959 will.

Defendants contend, however, that even if the paragraph designated 'FOURTH' was a valid contract to devise when Mr. Jim signed the 1959 will, it called for The personal services of Mildred and therefore terminated at Mildred's death.

Obviously the parties contemplated that Mildred would perform the services required to care for the personal needs of her mother and father in the home. Her health was good when the 1959 will was executed. Her malignancy was discovered in 1961. Successive reoccurrences after surgery ultimately caused her death in April of 1965.

To support their contentions, defendants cite Siler v. Gray, 86 N.C. 566 (1882), and Stagg v. Land Co., 171 N.C. 583, 89 S.E. 47 (1916). These decisions are cited in Peaseley v. Coke Co., 282 N.C. 585, 596, 194 S.E.2d 133, 141 (1973), in support of the statement therein contained that many courts have held that contracts calling for the personal services of a salesman do not survive his death, 'the rationale being that the death of the person who was to perform the personal services makes further performance impossible.'

Notwithstanding, 'even though the contract is one which would terminate at the promisee's death, the promissor may waive this feature of the contract and does so where he permits others, associated with the promisee in his lifetime in rendering the performance, to continue after his death and accepts such performance without giving notice within a reasonable time of an intention to consider the obligation as ended.' 94 C.J.S. Wills § 117d, p. 879 (1956). Accord, 57 Am.Jur. Wills § 175, p. 155 (1948); 1 Page on Wills, Section 10.25 (Bowe-Parker rev. 1960); Soper v. Galloway, 129 Iowa 145, 105 N.W. 399 (1905); Prater v. Prater, 94 S.C. 267, 77 S.E. 936 (1913). For the factual situation in Soper, supra, and for apposite quotations from the opinions in Soper and Prater, supra, reference is made to Judge Britt's opinion for the Court of Appeals. In Bourget v. Monroe, 58 Mich. 563, 25 N.W. 514 (1885), and in Parker v. Macomber, 17 R.I. 674, 24 A. 464, 19 L.R.A. 858 (1892), decisions cited by defendant, the promissor repudiated the contract to devise upon the death of the person whose services constituted the consideration for the contract and refused to accept the services of others in lieu thereof.

For present purposes, we assume that upon Mildred's death, Mr. Jim had the right to terminate the contract to devise on the ground that his obligation to devise depended upon the rendition of personal services by Mildred; and we further assume that neither Basil nor plaintiffs had A legal right to substitute their services for the services of Mildred. Suffice to say, Mr. Jim did not terminate the contract. On the contrary, the services which Mildred would have performed were rendered by Basil and plaintiffs and accepted by Mr. Jim and Miss Pearl. Moreover, there was plenary evidence that Mr. Jim was outspoken in his praise of the services he and his wife received both before and after Mildred's death and by him until his own death. Instead of seeking to terminate the contract embodied in the 1959 will, the evidence is to the effect that Mr. Jim considered that Basil and plaintiffs were obligated to render and provide the services Mildred would have rendered and provided had she outlived her parents. There was ample evidence to support the jury's affirmative answer to the third issue, a finding that, following the death of Mildred, care was furnished Miss Pearl and Mr. Jim by or on behalf of plaintiffs as contemplated by the contract until both died, and that Mr. Jim accepted such services 'in fulfillment of the said agreement.'

Defendants further contend that, by operation of law and by provisions therein, the 1969 will revoked the 1959 will.

"Revocation' has...