Vickers v. Pegues

• Decision Date: 18 April 1946
• Docket Number: 6 Div. 393.
• Citation: 247 Ala. 624,25 So.2d 720
• Parties: VICKERS v. PEGUES et al.
• Court: Alabama Supreme Court

25 So.2d 720

247 Ala. 624

VICKERS v. PEGUES et al.

6 Div. 393.

Supreme Court of Alabama

April 18, 1946

Chester Austin, of Birmingham, for appellant.

Francis Hare, of Birmingham, for appellees.

LAWSON Justice.

The appeal is from a decree sustaining a demurrer to a bill in equity.

The bill is filed by Lillian Vickers against Charlotte Jones Pegues, Mary Beal and Charlotte Hennington, as heirs at law of one Martha Lewis, deceased.

In substance, the bill avers: That complainant and respondents are all the heirs at law of Martha Lewis, who died in June 1943, possessed of certain described real estate; that complainant was reared by the said Martha Lewis and did not leave her home on the property described until about two years after complainant's marriage; that in December 1939, the said Martha Lewis and complainant 'entered into a verbal agreement which in substance, was as follows: That if the complainant and her husband Jessie Vickers, would remove back into the home of the said Martha Lewis and feed and cloth(e) her, cook for her, wash for her and wait on her and keep up and maintain and repair the house on the above described property during the lifetime of the said Martha Lewis, that the said Martha Lewis would execute a will to this complainant, devising and bequeathing to this complainant the property hereinabove described and would put this complainant and her husband in immediate possession of said property upon their removing to same'; that complainant and her husband, relying on the representations made to her by the said Martha Lewis, as above set out, moved into the house of the said Martha Lewis during the last week of December, 1939, at which time Martha Lewis turned over the property to complainant and placed her in full and complete charge thereof.

The bill further alleges: That complainant has fully and completely carried out her part of the agreement, in that from the time complainant and her husband moved back into the home of the said Martha Lewis and until her death, they fed and clothed her, washed for her, nursed her paid for valuable improvements on the property costing hundreds of dollars, and either paid or furnished the money with which to pay taxes.

It is further alleged in the bill: That, in May, 1940, a short time after complainant and her husband moved into Martha Lewis' home, Martha Lewis executed a will devising and bequeathing the said property to complainant; that complainant at one time had the will in her possession when she took it to a lawyer to inspect, but afterwards returned it to the possession of Martha Lewis; that the said Martha Lewis never repudiated the agreement nor expressed any dissatisfaction with the terms thereof; that Martha Lewis, at the time of her death, still owned the legal title to the said property and complainant believed that the will made by the said Martha Lewis devising and bequeathing the said property to complainant was still in existence, but that complainant, although she has made diligent search, cannot locate said will; that the said will has been lost or destroyed by Martha Lewis or some one else not known to complainant.

The bill further alleges: That for a long time prior to her death the said Martha Lewis was in ill health, her mind impaired; that on April 7, 1942, the said Martha Lewis, without the knowledge or consent of complainant, 'drew up' another will devising and bequeathing the said property to her sister, Charlotte Jones Pegues, one of the respondents; that the said Charlotte Jones Pegues had not lived with Martha Lewis, had not administered to her and had only visited her on rare occasions.

The bill prays: 'That upon a final hearing of this cause that the court will make and enter a decree of specific performance against said respondents decreeing that said contract be specifically performed to make this complainant the owner of said real estate above set out. That any right, title or interest that the respondents may have or may have had in the above-described property shall be divested and invested in this complainant.'

It is well established in this jurisdiction that a valid contract by a promisor to dispose of his property by will to a particular person may be enforced in the courts, after his decease, by a bill in the nature of specific performance against his heirs, devisees or personal representative. Bolman v. Overall, 80 Ala. 451, 455, 2 So. 624, 60 Am.Rep. 107; Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am.St.Rep. 46; Allen v. Bromberg, 147 Ala. 317, 41 So. 771; Walker v. Yarbrough, 200 Ala. 458, 76 So. 390; Cox v. Hutto, 216 Ala. 232, 113 So. 40; Hendrix v. Pique, 237 Ala. 49, 185 So. 390. This principle is well and fully discussed in the comparatively recent cases of Wagar v. Marshburn, 241 Ala. 73, 1 So.2d 303, and Cowin v. Salmon et al., 244 Ala. 285, 13 So.2d 190.

The averments of the bill show a valuable consideration for the promise alleged to have been made by the said Martha Lewis, to devise the specific property here involved to complainant. Bolman v. Overall, supra; Cox v. Hutto, supra; McKinney v. Weatherford et al., 242 Ala. 493, 7 So.2d 259.

But it is now settled in this state that an oral agreement to make a will devising real...