Salmon v. McCrary

• Decision Date: 10 February 1944
• Docket Number: 14763.
• Citation: 29 S.E.2d 58,197 Ga. 281
• Parties: SALMON v. McCRARY.
• Court: Georgia Supreme Court

29 S.E.2d 58

197 Ga. 281

SALMON v. McCRARY.

No. 14763.

Supreme Court of Georgia

February 10, 1944

Syllabus by the Court.

1. In an action in equity for specific performance of an alleged parol contract the agreement must be proved so clearly strongly, and satisfactorily as to leave no reasonable doubt as to the contract.

2. The evidence was not sufficient to prove, with the degree of certainty required by the law, the alleged parol agreement by the administrator's intestate, that if the claimant and her husband would render described services to the intestate and her husband while in life, she would execute a will leaving all of her property to the claimant. Accordingly, the court did not err in granting a nonsuit.

On two occasions certain realty and personal property were advertised for sale by the administrator of the estate of Mrs. Mol lie O'Bryant Grace, and in each instance Mrs. Beeie Salmon filed a claim to the property. In aid of her claim she filed equitable petitions seeking to compel specific performance of an alleged parol contract with Mrs. Grace to execute a will leaving to the claimant all of her property, in consideration of specified services by the claimant which were alleged to have been fully performed. On the first trial the jury found in favor of the claimant. On review this court held that the evidence was insufficient to establish the alleged contract with that certainty required by the law, and reversed the judgment of the trial court overruling the administrator's motion for new trial. See McCrary v. Salmon, 192 Ga. 313, 15 S.E.2d 442. On the second trial a nonsuit was granted. This court, in Salmon v. McCrary, 194 Ga. 413, 21 S.E.2d 857, affirmed that judgment.

After the rendition of the last mentioned judgment by this court the administrator again advertised the property for sale. Mrs. Salmon interposed a claim, and in aid thereof filed an equitable petition in which she alleged an oral contract between her and Mrs. Grace as follows: 'The claimant contracted and agreed with the deceased and Mr. Grace at said time that she and her husband, Fred Salmon, would assume the payment of the insurance premiums on said policy of insurance and pay the same until the death of Mr. Grace, and that upon his death petitioner was to be paid the sum of $1,000 out of the proceeds of said insurance and the other $2,000 to be paid to Mrs. Grace, if in life, otherwise to her estate, and at the same time it was contracted and agreed between the parties that the said Fred Salmon and petitioner were to look after the said deceased and her husband, nurse and help nurse them, and each of them, as long as they might live, and to help and assist them, and each of them, in the transaction of their business affairs and the conduct of their home, and that the deceased was to execute a will giving to petitioner all of her property, that is, of the decased, Mr. Grace having no property, both real and personal, at the death of the deceased, unless deceased should die before her husband in which event petitioner was to have the same after his death.' It was alleged that the premiums were paid and after the death of Mr. Grace $1,000 of the proceeds of the policy was paid to Mrs. Salmon and $2,000 to Mrs. Grace; that the services agreed upon were fully performed; and that Mrs. Grace failed to make a will and died intestate.

Fred Salmon, husband of the claimant, testified: 'Both Mr. and Mrs. Grace approached me and my wife in regard to this policy with the Royal Arcanum. The transaction between us was that we were to send this policy back to headquarters and have it changed and we did, and they changed the policy and made $1,000 of it to my wife and $2,000 of it to the estate, and I was to pay these premiums on the policy as long as he lived. I did that. I paid them. He died in 1930, and left no property except his insurance. The real property was all Mrs. Grace's. At the time my wife got the $1,000 Mrs. Grace got $2,000. At the same time that agreement was made, there was also an agreement or contract made between my wife and Mrs. Grace. It was agreed that I was to pay this insurance premium as long as he lived and that was carried through, and we were to look after them and see that they were looked after as long as they lived, and then we were to have this property, both real and personal, at their death. Something was said about nursing them. We were to help them from a physical standpoint, do anything that a son or daughter would do for them in their old age. Something was said about their business affiars. That was the agreement, that we were to do these things for them, anything they needed done, to include looking after their business affairs. Mrs. Salmon looked after their home all the time, and she was to do that under the agreement. That was contract, anything that a son or daughter would do or a sister or any one in the family would do for her own mother. Mrs. Salmon did that as long as they lived. Mrs. Grace died in 1935. In consideration of that help and assistance on the part of my wife, Mrs. Grace was to execute a will and leave all that she had, everything personal and real, to my wife when she died. Mr. Grace died in 1930 and Mrs. Grace in 1935.'

There was testimony by other witnesses as to the services rendered by the claimant and her husband. One of these, Mrs. Ivena Holsomback, testified, among other things: 'She [Mrs. Grace] said she had already given what she had to Bessie and Fred [Mr. and Mrs. Salmon] because they had been so nice to look after her. * * * I saw some diamond rings she had. I tried them on. She said she had given Bessie [Mrs. Salmon] the largest stone and Mrs. Henderson the second one, and I don't know about the third one.'

Mrs. Dan Stevens testified as to services rendered by the claimant and her husband and that Mrs. Crace told her 'that when she left here she wanted Mr. and Mrs. Salmon to have what she had. She did say something to me about a contract or agreement she had with them.'

After the introduction of evidence for the claimant the court, on motion of counsel for the administrator, granted a nonsuit, and the exception here is to that judgment, the plaintiff in error contending that there was sufficient evidence to require submission of the issues to a jury.

James Maddox, of Rome, for plaintiff in error.

Alec Harris, of Rome, for defendant in error.

DUCKWORTH Justice.

While counsel for the defendant in error argues that the evidence is substantially the same as that on the last trial of the case, the issue is not to be determined by such a consideration, but by deciding whether or not there was evidence which would support the contract as finally alleged, whether or not the jury would be authorized to find that there was full performance by the claimant and her husband and a breach on the part of Mrs. Grace.

'Contracts under which one of the contracting parties agrees with the other, for a valuable consideration, that he will make a will giving to the other property, either real or personal, have been sustained and enforced in America from the earliest times, and the validity of such contracts seems now to be beyond all doubt. [Citing.] Where [the] party in whose favor the will is to be made has performed his part of the contract, and the other party dies without making the will, or leaves a will in which there is no provision which can be construed as a compliance with the agreement, or leaves a will which, in its terms, complies with the contract, but which is invalid for some reason, the disappointed party may apply to a court of equity for a psecific performance of the contract, if it was one of...