Tearney v. Marmiom

• Citation: 137 S.E. 543
• Decision Date: 15 March 1927
• Docket Number: (No. 5720.)
• Parties: TEARNEY. v. MARMIOM et al.
• Court: West Virginia Supreme Court

137 S.E. 543

TEARNEY.

v.MARMIOM et al.

(No. 5720.)

Supreme Court of Appeals of West Virginia.

March 15, 1927.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Appeal from Circuit Court, Jefferson County.

Suit by Frances Tearney against Wm. V. Marmiom, administrator, etc., and others on a contract. From a decree sustaining demurrers to the bill, plaintiff appeals. Reversed and remanded.

John T. Porterfield, of Charles Town, for appellant.

J. Maulsby Smith, of Baltimore, Md., and Brown & Brown, of Charles Town, for appellee Marmiom.

HATCHER, P. This appeal involves the sufficiency of a bill, with several amendments thereto. The circuit court of Jefferson county sustained demurrers to the bill as amended.

The bill, as amended, alleges that the plaintiff is a resident of Pennsylvania; that Edward Tearney, also a resident of that state, died on January 3, 1925; that for about 11 years prior to his death, during which period he had been in very bad health and was an habitual drinker, plaintiff and her mother had cared for and nursed him, under a contract between him and plaintiff that he would convey to her at his death all of his property for her services; that after she had commenced to take care of him, she lived with him as his common-law wife in the state of Pennsylvania, although he was married at the time, "he having promised her that he would give her all of his property at his death, " and having further promised that as soon as he was free from his marriage he would marry her; that he owned both real and personal property in West Virginia, which had descended to him from an aunt; that the aunt suffered from a malignant form of cancer, and during four years prior to her death the plaintiff cared for and nursed her, under the express promise of Tearney that he would compensate plaintiff for her services in so doing when he inherited his aunt's property; that plaintiff would not have entered into the relation of common-law wife with decedent, nor would she have nursed and cared for him, if she had not relied upon his promises to provide for her at his death.

The bill further alleges that Tearney executed a testamentary paper in plaintiffs favor, valid under the laws of Pennsylvania; that the instrument was typewritten, and, having only one witness to Tearney's signature, was invalid as a will in West Virginia; that Tearney was endeavoring in good faith to carry out his contract with plaintiff, and failed to do so only because of his unfamiliarity with the laws of this state. The paper is:

"3720 N. Broad St., Philadelphia, Pa.,

"Dec. 22, 1924.

"Being unable, through illness of a serious nature, to appear before an attorney, I am writing this' to testify that it is my wish and desire that all my stock, interests, and holdings of whatever nature be transferred to Frances Tearney, and herewith affix my signature.

"[Signed] Edward Tearney.

"Witness: V. Kelcher."

The plaintiff prays that the instrument be treated as a memorandum of the contract to compensate her for her services, and that the contract be specifically executed by decreeing plaintiff all of Tearney's property in the state of West Virginia.

Forty years ago Freeman, in one of his dependable notes, said that an almost unbroken current of authorities, both English and American, supported the doctrine that a person could make a valid agreement to dispose of his property in a particular way at his death. 66 Am. Dec. 784. The intervening years-have wrought no change in that doctrine. Davidson v. Davidson, 72 W. Va. 747, 750, 79 S. E. 998; Jefferson v. Simpson, 83 W. Va. 274, 98 S. E. 212; Adams v. Adams, 95 W. Va. 187, 194, 120 S. E. 590; Underhill on Wills, par. 285; Thompson on Wills, par. 33. An agreement by the promisee to take care of the promisor is a sufficient consideration for such a.contract. Brady v. Smith, 8 Misc. Rep. 465, 28 N. Y. S. 776; Smith v. Pierce, 65 Vt. 200, 25 A. 1092; Goff v. Supreme Lodge, 90 Neb. 578, 134 N. W. 239, 37 L. R. A. (N. S.) 1191; Brinton v. Van Cott, 8 Utah, 480, 33 P. 218; Bryson v. McShane, 48 W. Va. 126, 35 S. E. 848, 49 L. R. A. 527. Such agree-ments may be by parol. A leading case on this proposition is Rhodes v. Rhodes, 3 Sandf. Ch. (N. Y.) 279, decided in 1846. In that case Andrew Rhodes was subject to epileptic fits. He orally agreed with his brother Henry that the latter should provide and care for him during his life, and as compensation therefor Henry should have all of Andrew's property. Henry faithfully rendered the services agreed upon, and at Andrew's death the court specifically enforced the contract against Andrew's heirs, holding:

"Where the consideration consists of services to be rendered, which are of such a peculiar character that it is impossible to estimate their value to the vendor by a pecuniary standard, and the vendor did not intend to measure them by such a standard; the performance of the services will entitle the vendee to a specific performance, notwithstanding the contract was by parol."

That case was cited and followed by this court in Bryson v. McShane, supra, where It was held that the care and support of an aged person under a similar contract constituted services of such particular character as to come within the above rule. A like application of that doctrine was made in the recent case of Hurley v. Beattie, 98 W. Va. 125, 126 S. E. 562. See Pomeroy, Spec. Perf. Contracts (3d Ed.) par. 114, and the exhaustive annotation commencing on page 279. Where services are incapable of valuation in money, but are performed because of a special contract, equity holds that it would be a fraud on the promisee to withhold from him the agreed compensation. Bryson v. McShane, supra (page 130 ). In such case, equity cannot cause a will to be made, but it will regard the property of the promisor as impressed with a trust in favor of the promisee, and will require the heirs of the promisor to dispose of the property so as to carry out the intent of the promisor. Pomeroy, supra, par. 191, note 2, p. 490. See, also, annotation commencing at page 399, Ann. Cas. 1914A.

The services of the plaintiff in caring for Tearney during the long period and under the conditions alleged are of that peculiar character for which there is no monetary standard. Therefore the allegations in the bill call for the enforcement of Tearney's covenant to pay for those services. The failure of the testamentary paper as a will does not prejudice plaintiff's case. As was said in Hiatt v. Williams, 72 Mo. 214, 215 (37 Am. Rep. 438), regarding an invalid will made in an attempt to execute an agreement analogous to the one here:

"The attempt to execute the contract by a will would surely not place the plaintiff in any worse condition than he was before. The will was merely introduced in evidence to support the contract, and it was certainly very strong evidence to show the intent of the father, who doubtless supposed that it would accomplish his purpose."

A memorandum in writing is not essential to plaintiff's case, but the testamentary paper will serve as such within the meaning of the statute of frauds. The statute expressly negatives the need of setting forth the consideration in such a writing, and provides that the consideration may be proven by other evidence. Chapter 98, § 1, par. 7, Code 1923. In Shroyer v. Smith, 204 Pa. 310, 54 A. 24, a writing similar to the one here was sought to be treated as a memorandum under the statute. It was objected to because it made no reference to the contract for services. In overruling that contention, the court said (page 315 ):

"It is not necessary that the will should set forth the possession of the premises by the devisees, or that there was a contract. These facts must appear but may be shown by parol proof."

The failure of Tearney to place the plaintiff in possession of the property in question is not a valid ground of objection to specific performance in West Virginia. See Hurley v. Beattie, supra.

From written memorandum filed by the circuit court it appears that its final ruling was based on the theory that the agreement of the plaintiff to live with Tearney as his common-law wife (which was clearly unlawful) is not separable from the contract to care for and nurse him, and that the illegal contract permeated and destroyed the validity of the other. In so ruling the lower court failed to consider one of the amendments to the bill, which alleges that the agreement of plaintiff to act as the common-law wife of Tearney was made after she had commenced to take care of him under the promise that he would convey to her at his death all of his property in payment for her services. The contract for services, having been made prior to the one for the common-law wife relationship, is severable from the latter in time as well as in substance. The latter may have been a consequence of the familiarity growing out of the first contract, but there is nothing in the bill to support an inference that the prospect of illicit relationship entered into the consideration for the first contract, or that the first was in any way contingent upon the second. The plaintiff's right of recovery depends in no wise...