Trotter v. Trotter

• Decision Date: 28 May 1986
• Docket Number: No. 55573,55573
• Citation: 490 So.2d 827
• Parties: Herman TROTTER v. Billy Joe TROTTER, Sr., et al.
• Court: Mississippi Supreme Court

Page 827

490 So.2d 827

Herman TROTTER v. Billy Joe TROTTER, Sr., et al.

No. 55573.

Supreme Court of Mississippi.

May 28, 1986.

Jack W. Brand, Robert M. Logan, Jr., William C. Brabec, Gerald, Brand, Watters, Cox & Hemleben Newton & Jackson, for appellant.

E. Randolph Noble, Jr., Robertshaw & Merideth, Greenville, for appellees.

Before WALKER, P.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court.

The Chancery Court of Newton County, Mississippi, set aside two wills of Mrs. Louise Trotter Rooney, Deceased, causing her property to pass by intestacy, subject to various other rulings of the chancery court. Herman Trotter, executor of the first will and sole beneficiary, appeals.

On May 26, 1980, Louise Trotter Rooney executed a holographic will which made Herman Trotter her executor and sole beneficiary. In June of 1980, she contracted not to revoke the will in exchange for Herman Trotter's promise that he would take care of her for the remainder of her life. The 1980 will made no mention of the contract not to revoke.

On May 7, 1982, Louise Trotter Rooney executed another holographic will, which did not specifically revoke nor refer to the 1980 holographic will, but which did purport to revoke all other wills. In the 1982 will, which appointed no executor, Louise Trotter Rooney left her property to her cousin, Billy Joe Trotter, Sr., his son, Billy Joe Trotter, Jr., four nieces and her nephew, Herman.

On November 18, 1982, Louise Trotter Rooney died. Herman Trotter then probated the holographic will of May 26, 1980, and this will was admitted to probate in January of 1983.

On February 18, 1983, Billy Joe Trotter filed to substitute the May 7, 1982, will for the 1980 will and for the appointment of an administrator, c.t.a. On March 9, 1983, Herman Trotter filed a caveat to the 1982 will on the grounds that the 1980 will which he had first probated was the true will, that the 1982 will was executed at a time when Louise Trotter Rooney was of unsound mind and without testamentary capacity and was subject to undue influence, and for the further reason that he was the beneficiary of an oral contract with Mrs. Rooney not to revoke the 1980 will.

On March 29, 1983, Billy Joe Trotter, Sr. additionally charged that the 1980 will leaving all the property to Herman Trotter was the result of undue influence.

The case was tried and on November 23, 1983, the trial court issued an opinion which found that at the time Mrs. Rooney executed the 1982 will she was without testamentary capacity and therefore the 1982 will was void.

The chancellor then found that Mrs. Rooney did not receive from Herman Trotter the type of care that she had contracted for and, therefore, as a matter of law, Herman Trotter had breached his verbal contract with Mrs. Rooney and that this breach rendered the holographic will of May 26, 1980, void and of no effect, thereby causing Louise Trotter Rooney to have died intestate.

The chancellor found that Herman Trotter, for the services that he rendered, was entitled to reasonable compensation which the court found to be $10,000, plus a 1963 Cadillac of Mrs. Rooney's to which Herman Trotter already held title.

The chancellor found that Mrs. Rooney was not of sound mind at any time in 1982, and, therefore, when her certificate of deposit in the amount of $46,000.00 was placed in both her name and Herman Trotter's name jointly she was without capacity and the transfer was void. The chancellor also found that many years ago Mrs. Rooney made a gift of her dining room suite to Billy Joe Trotter, Jr., with the stipulation that she would retain possession and use thereof during her lifetime. He, therefore, upheld the inter vivos gift to Billy Joe Trotter, Jr.

The chancellor appointed a neutral administrator to administer the intestate estate of Mrs. Rooney.

I. DID THE LOWER COURT ERR IN SETTING ASIDE THE HOLOGRAPHIC WILL OF MRS. LOUISE TROTTER ROONEY DATED MAY 26, 1980?

The chancellor found as fact that in June of 1980 the testatrix sent the appellant her holographic will executed on May 26, 1980, and that she offered to agree not to revoke the will if the appellant promised to take care of her and her property for the rest of her life. The appellant was the sole beneficiary of this will. After deliberation with his wife, the appellant promised to do so. The chancellor found that at this time an oral contract not to revoke the will was entered.

A contract to devise or bequeath property by will is valid. See Estate of McKellar v. Brown, 404 So.2d 550, 552 (Miss.1981).

The chancellor's holding that the 1980 will was void because of the breach of contract by the appellant was based on Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946). The often-quoted relevant holding in Tomme was discussed in Voss v. Stewart, 420 So.2d 761, 764-65 (Miss.1982):

Although this court has acknowledged that an oral promise to devise property is enforceable where services were performed pursuant thereto, it has nevertheless circumscribed the essentials of such contract in addition to the requirement of "clear, definite and certain" evidence.

In Johnson v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946), we stated:

The will, when written in conformity and compliance with the agreement, was a consideration which belonged to the appellee. The testator had no right to revoke it, and its attempted revocation, if deliberately made, constituted a fraud upon her. 199 Miss. at 347, 24 So.2d at 732.

We do not lay down a general rule allowing the establishment of a trust by oral agreement, nor do we design a model for all cases. We do say that where a testator executed a will in compliance with an oral agreement with the devisee that the latter will render unique and necessary personal services to him involving a substantial change in the status and manner of living of the promisee, and such services have been performed so that a revocation of the will amounts to fraud upon the latter, rendering it impossible or impracticable to restore him to the situation in which he was prior to the contract, equity will hold such will to be irrevocable and the rights thereunder may be established. 199 Miss. at 351-52, 24 So.2d at 734.

(emphasis added).

Presumably the rare remedy afforded under Tomme, which is in essence a type of specific performance, is limited to devises. See, e.g., Old Ladies Home Ass'n v. Hall, 212 Miss. 67, 52 So.2d 650 (Miss.1951); Frierson v. Moorehead, 211 Miss. 811, 51 So.2d 925 (Miss.1951); Denson v. Denson, 203 Miss. 146, 33 So.2d 311 (Miss.1948). At Mrs. Rooney's death, her estate consisted solely of personal property.

In any event, a promisee of an oral contract to make a will, who provides the services contemplated by the contract, may at the very least be entitled to the reasonable value of the services actually rendered, known as the quantum meruit, as a claim against the estate if the promisor breaches the contract by making a different devise or bequest than that which was contracted for. Liddell v. Jones, 482 So.2d 1131 (Miss.1986); Ellis v. Berry, 145 Miss. 652, 110 So. 211 (1926). If the promisee parted with any other valuable consideration for the contract, he may well have an action against the estate for that consideration.

The above discussion is relevant to this appeal only as background because the issue in this case does not involve a promisee suing the promisor/testator's estate on the basis of a breach of contract to make a will by the promisor/testator. The issue here does not concern what remedies the appellant, as promisee, would have against Mrs. Rooney's estate if the 1982 will had been found to be valid and, therefore, to revoke the 1980 will. Conversely, it does not concern what defenses Mrs. Rooney's estate would have against such actions. The issue before us is whether the purported breach of the contract by Herman Trotter, the promisee, has the effect of revoking the otherwise valid 1980 will.

As a threshold proposition, we point out that the "principles which apply to a contract to make a will apply to contracts not to revoke a will which the promisor has made theretofore...." 1 Bowe-Parker: Page on Wills Sec. 10.1 (1960). We also note that the 1980 will made no mention of the contract; therefore, it was not conditioned upon the performance of the contract. See Stovall v. Stovall, 360 So.2d 679, 681 (Miss.1978).

In Page on Wills, it was said, "The contract [to make a will or not to revoke a will] cannot be used to prevent admission to probate of a will which had been made in violation of the provisions of the contract." Id. Sec. 10.3. See, e.g., Allen v. Bromberg, 147 Ala. 317, 41 So. 771 (1906) But compare Walker v. Yardbrough, 200 Ala. 458, 76 So. 390 (1917). Therefore, it was inappropriate for Herman Trotter to allege, as a fourth defense to the probate of the 1982 will, the contract not to revoke. The contract not to revoke was not a defense to the probate of the 1982 will. If the 1982 will had been admitted and substituted for the 1980 will, Herman Trotter's appropriate remedy would have been on the contract, pursuant to the cases mentioned above. More than likely, Herman Trotter's remedy would have been limited to a claim for quantum meruit against the Rooney estate, which is in essence what the chancellor gave him.

More important, concerning the effects of Herman Trotter's purported breach, in Page, it was stated: "If the promisee has agreed to render services to the promisor ... his breach of such covenant discharges the contract if the promisor so elects." Id. Sec. 10.19. See, e.g., Clarke v. Portland Trust Bank, 221 Ore. 339, 351 P.2d 51, 61 (1960).

In Page, it was also stated: "If the promisee fails to perform all of his covenants but the promisor does not elect to treat such non-performance as a breach, the heirs and next of kin, on the death of the promisor, cannot set up such breach." Id. Sec. 10.19. See, e.g., Ledingham v. Bayless, 218 Md. 108, ...