Stuckey v. Truett

• Decision Date: 12 April 1923
• Docket Number: 11187.
• Citation: 117 S.E. 192,124 S.C. 122
• Parties: STUCKEY ET AL. v. TRUETT ET AL.
• Court: South Carolina Supreme Court

117 S.E. 192

124 S.C. 122

STUCKEY ET AL. v. TRUETT ET AL.

No. 11187.

Supreme Court of South Carolina

April 12, 1923

Appeal from Common Pleas Circuit Court of Darlington County; James E. Peurifoy, Judge.

Action by Dwight S. Stuckey and others against Angie Truett and others. From a decree for plaintiffs, defendants appeal. Affirmed.

Fraser and Watts, JJ., dissenting.

The decree of Circuit Judge James E. Peurifoy is as follows:

This is an action to enforce the specific performance of a contract to make a will. The complaint charges that Mrs Eliza C. Truett and her husband, Jacob T. Truett, some time prior to 1913, entered into an agreement whereby they agreed that, if Mrs. Truett would devise and bequeath unto her husband, Jacob T. Truett, all of her property, real and personal, Jacob T. Truett would, on his part devise and bequeath said property to the plaintiffs, Dwight C. Stuckey, Oscar C. Stuckey, and Percy P. Stuckey, who were the nephews of Mrs. Truett, and for whom she wished to provide; that pursuant to said agreement, during the year of 1913, Mrs. Truett made her will, devising and bequeathing all of her property, real and personal, unto the said Jacob T. Truett, and left the same of force at her death, which appears by the complaint to have occurred during the year 1913, but which is admitted to have occurred during the year 1917, and that the said Jacob T. Truett enjoyed the benefits of such devise and bequest until his death, which occurred during the year of 1918; that the said Jacob T. Truett neglected and failed to carry out his part of said agreement made with his wife, Eliza C Truett, but, instead of carrying out said agreement, left his will devising and bequeathing such property unto the defendants, except the defendant Z. T. Folsom, who was appointed the executor of the said will; that both wills were duly admitted to probate in common form; that the executor of the will of Jacob T. Truett qualified and is performing his duties; and the plaintiffs ask the court of equity to enforce the specific performance of the agreement above alleged.

The defendants all answered, denying, generally, the allegations of the complaint, and set up the statute of frauds as a bar to the action. None of the pleadings were verified. All of the issues were referred to the acting master, who took the testimony, but on account of his indisposition, by consent of counsel, I heard the case on the testimony taken by the master.

It appears from the testimony and the admission of counsel that before her marriage Mrs. Eliza C. Truett was Eliza C Parrott, and married late in life and left no children; that she was a most industrious, hard-working, businesslike woman of positive character and vigorous intellect; the real estate in question came to her from her father's estate; that she, with her husband, moved upon this piece of land immediately after their marriage; that her property was incumbered by some debts then, which were subsequently paid off. It further appears that Mrs. Truett and her husband were estranged from her husband's people; that there was no communication, social or otherwise, between them, and, although they lived in the same neighborhood, this relationship continued throughout the life of Mrs. Truett, and up until a very short time before the death of Jacob T. Truett; that some time before the marriage of Mr. and Mrs. Truett, the mother of the plaintiffs, who was Mrs. Truett's sister, died, and that Mrs. Truett took charge of the plaintiffs, who were small children at that time, and mothered them and practically reared them, and that a very affectionate relationship grew up between Mr. and Mrs. Truett and the plaintiffs; that they stayed long periods of time with Mr. and Mrs. Truett, and assisted them in their farm work, and were treated by both probably fully as well as if they had been their own children. It further appears that, after the plaintiffs became grown men and had families of their own, and up until the death of both Mr. and Mrs. Truett, this filial affection between them continued unabated, and in the years of their old age they were practically dependent upon these boys, who carefully and lovingly nursed them and cared for them, in a most devoted and commendable manner, up until the times of their deaths. It further appears that in the discussion of their family affairs there was uniform and harmonious agreement that after their deaths the Stuckey boys were to get their property.

During the years of 1907 and 1908, Mrs. Truett apparently undertook to make her will; she made three attempts to do so, but never completed the instrument. In each case she provided for a life estate in her real estate for Mr. Truett, but did not progress far enough with the writing to indicate where the remainder was to go. She finally completed her will, and Mr. Truett carried it, so written by her, to his attorney at Darlington, S.C. What this will contained does not appear, but it does appear that another will was prepared by such attorney for her execution and delivered to Mr. Truett. She kept this will for some time before its execution, and it was finally executed at her residence during the year of 1913. This is the will that was left by her, and in it, she devised and bequeathed all of her property, real and personal, unto her husband. This will was executed during the year of 1913, and during the year of 1917, Mrs. Truett died. It appears that at the time of her death, Mr. Truett was unwell and suffering from Bright's disease, which, about 11 months later, caused his death. During the interim between Mrs. Truett's death and the death of Mr. Truett he spent a good deal of his time with his wife's niece, Mrs. Lizzie Folsom, and considerable time with the plaintiffs, where he was treated by their own physician. He discussed his affairs and particularly his agreement with his wife, with Mrs. Folsom quite frequently and during the last few months of his life, he, especially when he was suffering much, would ask that the Stuckey boys be sent for, so that he could fix up his papers, but never did so. About 10 weeks before he died, the plaintiffs placed him in the Florence Infirmary at Florence, S. C., for treatment, one or the other of them visiting him every few days, where he remained about 7 weeks. While he was under treatment at the Florence Infirmary, we find the first revival of any intercourse between him and his own relations. They began to visit him while he was at the hospital. About two weeks before he died and after his illness had progressed to such an extent that he was incapacitated mentally, from attending to any business at all, he was removed from the hospital under circumstances which can

admit of no doubt that it was done by the agents of the defendants. The conduct of the defendants in thus removing Mr. Truett from the hospital does not commend itself to the court. He was in the last stages of Bright's disease, and needed the utmost care and best medical attention to prolong his life. His mind was so impaired as to render his judgment valueless. He might have imagined that he wanted to go home, but he was in no condition to know what he wanted to do, and certainly did not know what he ought to do. The defendants, under these circumstances, removed him, without the consent or knowledge of the plaintiffs, who had placed him there, nor of the attending physicians, nor of the physicians and authorities in charge of the hospital. They carried him to his home, made no adequate provision for is comfort, and did not carry out his request that the plaintiffs be sent for, although promising to do so. About one week after he was carried home, and about one week before his death he executed his will, whereby he divided his property among the defendants, his own relatives, with a small bequest to the Folsoms.

The defendants pleaded the statute of frauds and it was argued that the absence of a writing of any kind, as required by the statute, was a bar to this action. I do not think so. It was admitted at the hearing that the rule was general that part performance, even of contracts to make a will, took the case out of the statute; but it was argued that the case of Brown v. Golightly, 106 S.C. 531, 91 S.E. 869, Ann. Cas. 1918A, 1185, holds that there must be some writing in a case like this. I have carefully considered this case and I do not think the decision so holds. In that case the testimony of the plaintiff was held incompetent, and without it, and without any written evidence of the contract, it was held that there was an entire failure to establish the contract in that case. This view is made certain by the further language in the same decision: "In order to enforce a contract whereby a party contracts to dispose of real estate by will, the same principles apply and the same proof is necessary as when he contracts to convey title by deed." It would not be contended that part performance of a contract to convey real estate by deed would not take the case out of the statute. I do not, therefore, think that decision alters the general rule, and there being, in this case, satisfactory evidence of part performance, the defense of the statute of frauds is overruled.

My conclusion is that the agreement charged in the complaint was made and should be enforced. I recognize the rule that testimony in a case of this kind must be clear, definite, and convincing. It must more than preponderate. It must be clear and must convince. Stated in another way, it finally comes back to that. The rule does not require any number of witnesses. The testimony of one witness may be clear and carry convincing power, especially when so strongly corroborated by the circumstances as is the case here. The testimony of one witness with

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