Sherman v. Johnson

• Decision Date: 22 April 1953
• Docket Number: Nos. 33119,33164,s. 33119
• Citation: 159 Ohio St. 209,112 N.E.2d 326
• Parties: , 50 O.O. 257 SHERMAN v. JOHNSON et al. KATAFIASZ v. GLEMP et al.
• Court: Ohio Supreme Court

Page 209

159 Ohio St. 209

112 N.E.2d 326, 50 O.O. 257

SHERMAN v. JOHNSON et al.

KATAFIASZ v. GLEMP et al.

Nos. 33119, 33164.

Supreme Court of Ohio.

April 22, 1953.

Syllabus by the Court.

1. An agreement to convey by deed or will, effective after death, is an agreement to make a will or to make a devise by will, within the meaning of Section 10504-3a, General Code.

2. Where a writing does not contain words which can be reasonably construed as words of promise or agreement or as an indication of any contract or agreement, such writing cannot be a memorandum or note of any agreement within the meaning of Section 8621, General Code, or an agreement in writing within the meaning of Section 10504-3a, General Code. (Paragraph one of the syllabus in Kling Adm'r v. Bordner, 65 Ohio St. 86, 61 N.E. 148, approved and followed.)

3. Section 10504-3a, General Code, applies to any action instituted after its enactment, even though such action involves an oral contract entered into before its enactment and even though performance of such contract had been partially completed at the time of such enactment. (Kimmel v. King, 125 Ohio St. 505, 182 N.E. 516, approved and followed.)

4. By virtue of Section 10504-3a, General Code, an agreement to make a will or to make a devise or bequest by will is not enforcible under any circumstances unless it is in writing. (Paragraph one of the syllabus in Snyder v. Warde Adm'x, 151 Ohio St. 426, 86 N.E.2d 489, approved and followed. Paragraph two of the syllabus in Ayres v. Cook, 140 Ohio St. 281, 43 N.E.2d 287, so far as it refers to Section 10504-3a, General Code, overruled.)

Case No. 33119 is, as described by plaintiff-appellee therein, 'a case for specific performance filed by the plaintiff.' The allegations of the amended petition, so far as they may in any way support plaintiff's claim, are that, ever since 'she was three months old, she lived and cohabited with Lola Sherman, and William Sherman, who took said plaintiff with them to rear and raise her * * * that during all of her life, she was known as Janey Sherman, and she knew no other parents except Lola Sherman, and William Sherman (husband and wife), both deceased who at all times led her to believe, in her home and in the community, that she was their natural child, that William Sherman predeceased Lola Sherman, and also died intestate * * * that ever since she attained the age of 12 years, she was keeping house of and for said parents, she cleaned the house, cooked the meals, did the sewing, collected rents, nursed and took care of her said mother during her last sickness and injuries, she bathed and combed her hair, prepared meals, and kept constant companionship with her said mother Lola Sherman, that for the most of her time and particularly the last two years before her said mother died, she accompanied her mother to work and aided her in her employment at the Superior Carbon Co. * * * that Lola Sherman, died * * * possessed of' certain real estate; 'that said property * * * was owned jointly by said Lola Sherman and William Sherman * * * that both of her said parents William Sherman, and Lola Sherman, agreed to leave all of their property to her and they agreed to will said property to her * * * and Lola Sherman, her said mother, left the following written contract:

"June 1946

"My husband and I, consider Janey Sherman, as being our daughter. We raised her from three months old, and we want her to have all our property and everything we own.

"(Signed) Lola Sherman'

'* * * that she sacrificed and rendered all her services to her said parents, as though, they were her own parents, that she honored, respected and obeyed them; that she attended Sunday school, and church with them, and that she gave all her affection and services to them, she took care of them in sickness, in want and adversity, as * * * long as she lived with them during all her hours of life, as though they were her own natural parents'; that 'in the presence of other people, they agreed to will all their property to her, for her kindness and affection and as they considered her to be their own child.'

A demurrer to the petition was sustained 'and plaintiff not desiring to plead further * * * [the] action' was 'dismissed and judgment * * * entered for defendants.'

On appeal, that judgment was reversed by the Court of Appeals for Cuyahoga county.

Case No. 33164 involves a judgment of the Court of Appeals for Lucas county affirming a judgment of the Common Pleas Court wherein, as plaintiff-appellee therein states, 'the court ordered the specific performance of an oral contract between plaintiff and a decedent.' The facts are stated in plaintiff's brief as follows:

'* * * plaintiff * * * came to live with the decedent at the age of about two (2) weeks sometime in July, 1896. She lived with the decedent and her husband as parents and child up until the death of the decedent's husband in 1943 and of the decedent in 1948. During all of that time, she was held out by the decedent and her husband as their child. Before her marriage, she worked and contributed to the support of her purported parents, and just before marriage her purported parents talked with her husband and assured him that he was marrying their daughter. The plaintiff and her husband lived with the decedent and her husband until a time when they decided to buy their own home, at which time [about 1928] the decedent and her husband dissuaded plaintiff from buying any home on the basis that the decedent's home was to be plaintiff's after their death because she was their child. Relying on said promise, plaintiff and her husband refrained from purchasing said home. Sometime in later years, decedent's husband was incapacitated and was unable to support himself and decedent, and plaintiff and her husband, instead of contributing to one-half of the household expenses as they had previously, began to contribute to the whole of the upkeep of the home and food for decedent and her husband and plaintiff continued to look after them as if they were her natural parents. Plaintiff and her husband looked after the property, made repairs, and decedent, before and after the death of her husband, and decedent's husband, before his death, repeatedly made assertions that plaintiff was their daughter and that she was to receive the property in question; that decedent and her husband sometime before his death, both made wills in which one of them was the beneficiary in the other's will. After the death of the decedent * * * an heir-at-law of the decedent, commenced the administration of decedent's estate, and sometime thereafter * * * suit was filed by plaintiff to obtain specific performance of the agreement as alleged in the petition.'

Plaintiff's petition sets forth five causes of action. The judgments of the Common Pleas Court and of the Court of Appeals were based solely on the fourth cause of action in which plaintiff states 'that the decedent, by her statements, promises and actions, had an explicit oral contract with the plaintiff to convey to her by deed or will, effective after her death, the premises occupied by said decedent and plaintiff, and that the defendants have refused to make said conveyance.'

Both of the above cases are now before this court pursuant to allowance of motions to certify the records.

Clayborne Geoge and John G. Pegg, Cleveland, for appellants Johnson and others.

Fred A. Riehm and Wm. Kent Fenton, Toledo, for appellants Glemp and others.

Gus K. Allen, Cleveland, for appellee Sherman.

Thaddeus N. Walinski, Toledo, for appellee Katafiasz.

TAFT, Judge.

The question presented to this court in each of these cases is whether specific performance of the alleged contracts may be enforced, notwithstanding the provisions of Sections 8621 and 10504-3a, General Code.

Those sections read:

Section 8621. 'No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default or miscarriage, of another person; nor to charge an executor or administrator upon a special promise to answer damages out of his own estate; nor to charge a person upon an agreement made upon consideration of marriage, or upon a contract or sale of lands, tenements, or hereditaments, or interest in, or concerning them, nor upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.' (Emphasis added.)

Section 10504-3a. 'No agreement to make a will or to make a devise or bequest by will shall be enforceable unless such agreement is in writing, signed by the party making it or by some other person by his express direction, in which latter case the instrument must be subscribed by two or more competent witnesses who heard such party acknowledge that it was so signed by his direction.' (Emphasis added.)

The petition in case No. 33164 relies only upon an 'oral contract * * * to convey * * * by deed or will, effective after * * * death.' Complete performance of such contract could have been supplied by the making of a proper will. If such a will had been made, there would have been no breach by reason of a failure or refusal to convey by deed. Such a will could have been made any time before death. Therefore, until death, there could have been no breach of such contract. It follows that a breach of the contract to convey by deed or will would necessarily involve the failure to make a will. Cf. Howard v. Brower, 37 Ohio St. 402, 408. Therefore, unless the oral contract is enforcible as, to use the words of Section 10504-3a, General Code, an 'agreement to make a will or to make a devise * * * by will', the judgment of the Court of Appeals must be reversed in case No. 33164. Obviously, under the words of that statu...