Savannah Bank & Trust Co. v. Hanley

• Decision Date: 09 April 1951
• Docket Number: Nos. 17416,17426,s. 17416
• Citation: 65 S.E.2d 26,208 Ga. 34
• Parties: SAVANNAH BANK & TRUST CO. v. HANLEY et al. HANLEY et al. v. SAVANNAH BANK & TRUST CO.
• Court: Georgia Supreme Court

Page 26

65 S.E.2d 26

208 Ga. 34

SAVANNAH BANK & TRUST CO. v. HANLEY et al.

HANLEY et al. v. SAVANNAH BANK & TRUST CO.

Nos. 17416, 17426.

Supreme Court of Georgia.

April 9, 1951.

Rehearing Denied May 16, 1951.

Syllabus by the Court.

Where a mother surrenders possession of her infant girl to a third person, for the purpose of having the child adopted by him, in consideration of an alleged promise by the wife of said third person to leave to the mother her entire estate by will, such contract is void as against policy; and where, as here, other allegations as to services rendered to the foster mother were insufficient to set forth a cause of action for specific performance of the alleged parol contract to make a will, the trial court erred in overruling the defendant's grounds of general demurrer.

Mrs. Sarah Hanley and others filed in Chatham Superior Court, against Savannah Bank & Trust Company, as executor of the will of Mrs. Elizabeth Walker Comer, deceased, a petition seeking specific performance of an alleged parol contract to make a will. The petition as twice amended alleged substantially the following: The petitioner, Mrs. Sarah Hanley, is the widow of the late Marion Francis Hanley, who was a brother of Mrs. Comer, the deceased. The other petitioners are children (seven daughters and one son, of Mrs. Sarah Hanley and Marion Francis Hanley (who died on July 25, 1928), and thus are a nephew and nieces of Mrs. Comer. Her estate is of the aproximate value of $88,000, and in addition thereto there is an interest in a 'New York Trust Fund' estimated to be worth $164,000. Mrs. Comer first became acquainted with Mrs. Sarah Hanley in 1912, and their friendly relationship became strengthened as the years went by. Mrs. Comer became attached to Mrs. Sarah Hanley's daughter, Theresa, who is not one of the petitioners, and derived much pleasure in the association and companionship of Theresa. Mrs. Comer and her husband, Hugh M. Comer, caused to be brought, in the Superior Court of Chatham County to the October Term, 1928 a proceeding styled: Theresa Hanley, by her next friend and paternal aunt, Elizabeth Walker Comer, v. Hugh M. Comer and Sarah Hanley--a suit for the specific performance of an alleged contract to adopt Theresa. Attached to the proceeding was a letter dated November 13, 1928, stating that Mrs. Sarah Hanley was absolutely and unalterably opposed to the adoption of her daughter. Mrs. Sarah Hanley was importuned by Mrs. Comer after receipt of the letter to retract and permit said adoption.

Thereafter, Mrs. Comer orally agreed to make a will and leave all of her property to Mrs. Sarah Hanley and her children. The consideration for this promise was past services rendered by Mrs. Sarah Hanley and her children to Mrs. Comer's mother, Mrs. Jane McCloyne Hanley, that Mrs. Sarah Hanley was to agree to the adoption of Theresa, and that she and her children should render to Mrs. Comer services or such character as could be rendered only by a close relative.

The past services to Mrs. Comer's mother were alleged to have been caring for her every want, Mrs. Comer's mother spending summers in the petitioners' home, cooking preparing special meals as she suffered from diabetes, and buying special medicines from their own funds, shopping, and running errands.

It was alleged that Mrs. Sarah Hanley withdrew her objection and agreed to the adoption proceedings. It was also alleged that the petitioners rendered devoted services to Mrs. Comer, such as waiting on her and her husband, being at their beck and call, running errands, nursing them when sick, acting as companion on various trips, making their home her home, and coming to her rescue when Theresa and her husband would mistreat her. Every condition precedent to the execution and carrying out of the contract has been complied with by the petitioners, and they dutifully attended to and showered affection on Mrs. Comer and her mother, from which were derived pleasure, comfort and enjoyment, and the petitioners are legally entitled to said entire estate.

General and special demurrers were interposed by the defendant to the petition as amended. The trial court overruled the defendant's general demurrers and all grounds of special demurrer, except one complaining that there was not annexed to the petition a copy of the trust referred to as a 'New York Trust Fund,' which ground was sustained.

The defendant in a direct bill of exceptions excepted to the judgment overruling its general demurrer, and to the overruling of the aforesaid grounds of special demurrer.

The petitioners filed a cross-bill of exceptions, assigning error on the judgment sustaining the ground of the defendant's special demurrer in reference to the 'New York Trust Fund.'

Gazan, Walsh & Bernstein, Savannah, for plaintiff in error.

Joseph Scott, Los Angeles, Cal., John M. Brennan, Savannah, for defendants in error.

ATKINSON, Presiding Justice (after stating the foregoing facts).

To the petition as amended, the defendant demurred on the ground that the petition and the amendments thereto did not set forth any cause of action against the defendant.

'Specific performance is not a remedy which either party can demand as a matter of absolute right, and will not in any given case by granted unless strictly equitable and just. Mere inadequacy of price may justify a court in refusing to decree a specific performance of a contract of bargain and sale; so also may any other fact showing the contract to be unfair, or unjust, or against good conscience. And, in order to authorize specific performance of a contract, its terms must be clear, distinct, and definite. A petition for specific performance which fails to allege a case authorizing the relief sought under the application of the above stated rules is subject to demurrer.' Shropshire v. Rainey, 150 Ga. 566(2), 104 S.E. 414; Huggins v. Meriweather, 177 Ga. 461(1), 170 S.E. 483; Whitehead v. Dillard, 178 Ga. 714, 717, 174 S.E. 244; ...