Upson v. Fitzgerald

• Decision Date: 24 March 1937
• Docket Number: No. 2053-6844.,2053-6844.
• Parties: UPSON v. FITZGERALD et al.
• Court: Texas Supreme Court

103 S.W.2d 147

UPSON v. FITZGERALD et al.

No. 2053-6844.

Commission of Appeals of Texas, Section A.

March 24, 1937.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Mark F. Upson against Mae F. Fitzgerald, individually and as independent executrix of the estate of Lewis W. Florea, and others. Judgment for plaintiff was reversed and judgment was rendered for defendants by the Court of Civil Appeals [74 S.W.(2d) 1061], and plaintiff brings error.

Affirmed.

Templeton, Brooks, Napier & Brown and W. L. Matthews, all of San Antonio, for plaintiff in error.

Dodson & Ezell and Chas. W. Duke, all of San Antonio, and G. B. Fenley, of Uvalde, for defendants in error.

HICKMAN, Commissioner.

The plaintiff in error, Mark F. Upson, brought this suit against Mrs. Mae Florea Fitzgerald, individually and as independent executrix of the estate of Lewis W. Florea, deceased, and other persons not important here to name, to recover an undivided one-half interest in the estate of Lewis W. Florea. The basis of Upson's asserted right of recovery is an oral contract claimed to have been made by him in 1910, when he was a boy thirteen years of age, with his grandparents, Lewis W. Florea and Mrs. E. A. S. Florea. In the trial court Upson was awarded judgment in accordance with his prayer, but that judgment was reversed by the Court of Civil Appeals and judgment rendered that he take nothing. 74 S.W.(2d) 1061.

Several unrelated questions are presented for decision. We shall therefore not make one connected statement of the entire case, but break the statement up into several parts in order to disclose the status of the record with particular reference to each question discussed. Upson alleged, and the trial court found, in substance, that prior to September 12, 1910, when he was a thirteen year old boy, his grandparents, Lewis W. Florea and wife, promised him that if he would go to school and educate himself and take a course of instruction in animal husbandry and allied subjects qualifying him to manage a ranch and would thereafter take care of and manage their ranch property in Uvalde county during their lifetime and until the death of both of them, they would leave to him by will one-half of their entire estate. At that time, and at the time of their deaths, their estate consisted of both real and personal property. Shortly after making this promise, L. W. Florea, the grandfather, executed a will, by the terms of which he devised and bequeathed to his wife, Mrs. E. A. S. Florea, all of his property of whatsoever nature. The will provided that should Mrs. Florea die before the testator one-half of the estate should go to testator's daughter, Mrs. Mae Florea Fitzgerald, and the other one-half to Upson upon his arriving at the age of twenty-one years. The Floreas had two children, Mrs. Upson, mother of plaintiff in error, and Mrs. Fitzgerald. Mrs. Upson died in June, 1910, leaving one child, the plaintiff in error. The will contained provisions for the disposition of the one-half given to Upson in the event he should die before reaching the age of twenty-one years and leaving no wife or lawful issue, but those provisions need not be specifically noted. Mrs. Florea made her will bearing the same date as that of her husband, in which she devised and bequeathed to her husband all of her property of whatsoever nature and provided for the disposition thereof, in the event he predeceased her, in the identical terms of those in his will. Ten years later, after Upson returned home from college, these wills were delivered to him as evidence of the agreement. Thereafter, new wills were executed by the grandparents. The grandmother's will gave all of her estate to the grandfather. She died in 1929 and he died in 1931. By his will, which in terms revoked all prior wills, he devised to Upson a life estate in a designated portion of the Uvalde county ranch with remainder to his children, next with remainder to Mrs. Fitzgerald and her children. Both wills were duly probated and Mrs. Ftizgerald is acting as independent executrix under Mr. Florea's will. Upson at first contested the probate of that will, but later withdrew his contest. Mrs. Florea's coverture was not pleaded as a defense, and the provisions of article 3716, under which Upson could not have testified to transactions with the deceased, unless called by the opposite party, were waived.

The contract relied upon was, in essence and effect, but a contract for the sale of real and personal property. Article 3995, R.S.1925, provides in part, as follows:

"No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *

"4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year."

The first question for decision is whether the will of Lewis W. Florea, executed in 1910, constituted a sufficient memorandum of the contract under the above statute. We are referred to no decision by this court of the question of whether a will which makes no reference to a contract, but merely makes gifts of an estate in its entirety in the usual form of wills, is a sufficient memorandum under the above statute of frauds. In other jurisdictions, there is not complete harmony of decision on the question. The prevailing, and we think the better, rule is stated in 27 C.J. p. 259, in this language: "A will may be a sufficient memorandum, but not where it does not contain the contract in question, or does not coincide therewith, or where it fails to refer to, or show a connection with, the agreement or bargain in question."

In the case of White v. McKnight, 146 S.C. 59, 143 S.E. 552, 59 A.L. R. 1297, many cases are reviewed and the conclusion is announced that the making of a will pursuant to an agreement to devise land is not a sufficient memorandum of the agreement, where the testator afterwards makes another will revoking the prior one. The Supreme Court of California in the case of Zellner v. Wassman, 184 Cal. 80, 193 P. 84, 87, observes: "A potential factor in furtherance of fraud would be engendered were a will containing a simple bequest permitted to operate as evidence of a binding contract to make such a bequest. It must therefore be held that there is no written memorandum of the agreement here in suit."

That language was quoted approvingly by the Supreme Court of Arizona in Brought v. Howard, 30 Ariz. 522, 249 P. 76, 48 A.L.R. 1347. Among other authorities supporting that view may be listed the following: Watkins v. Watkins, 82 N. J.Eq. 483, 89 A. 253; Hale v. Hale, 90 Va. 728, 19 S.E. 739; Allen v. Bromberg, 163 Ala. 620, 50 So. 884; Miller v. Hill, 64 Misc. 199, 118 N.Y.S. 63; Ortman v. Ortman, 45 Ohio App. 551, 187 N.E. 588; Sorber v. Masters, 264 Pa. 582, 107 A. 892; Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010.

A will giving property to one cannot, without ignoring its very nature and purpose, be construed as a memorandum of a contract to devise it for a consideration. The element or revocability inheres in a will, and to read into it a memorandum of a contract not to revoke it, when no mention of such contract is made therein, is not warranted by any principle with which we are familiar. The consequences of doing so are not difficult to perceive. Nor does the fact that in this case the will was later delivered to Upson affect the rule. If the will itself was not a memorandum of a contract, the delivery thereof would not make it so.

As above noted, a portion of the estate in question, both at the date of the making of the contract and at the date of the death of the testator, was personal property. A contract to transfer such property does not come under the condemnation of the statute of frauds. This leads to a consideration of the question of whether the contract under review is entire or severable. The general rule is that, "If the contract is entire and part is within the statute it is unenforceable as a whole." 25 R.C.L. 704, § 347. On the other hand, if the contract is severable, that is, is susceptible of division and apportionment, having two or more parts not necessarily dependent on each other, the fact that one such part is unenforceable does not prevent a recovery as to the other. Different tests have been suggested by courts of this jurisdiction for determining whether a contract is entire or severable. A discussion of the question with citation of many Texas cases may be found in 10 Tex.Jur., beginning at p. 321, § 185. By any and all of the tests...