Voss v. Stewart

• Decision Date: 29 September 1982
• Docket Number: No. 53154,53154
• Citation: 420 So.2d 761
• Parties: Carolyn VOSS v. James R. STEWART and Anna Dauro Stewart, Co-Executors of the Estate of John P. Dauro, Deceased.
• Court: Mississippi Supreme Court

Page 761

420 So.2d 761

Carolyn VOSS v. James R. STEWART and Anna Dauro Stewart, Co-Executors of the Estate of John P. Dauro, Deceased.

No. 53154.

Supreme Court of Mississippi.

Sept. 29, 1982.

Rehearing Denied Nov. 10, 1982.

Wittmann, Berry & Sneed, Thomas D. Berry, Jr., Gulfport, for appellant.

Larry L. Lenoir, Gulfport, for appellee.

En Banc.

PATTERSON, Chief Justice, for the Court:

Carolyn Morreale Voss had appealed from a decree of the Chancery Court of Hancock County which dismissed her bill of complaint asserting rights to property devised to others by will. She claims an interest in the property by contract for her services, or alternatively, for payment for such services on a quantum meruit basis.

John and Mary Dauro, deceased, owned and operated two candy shops in Bay St. Louis during the 1950's until they died. ¹ Carolyn Morreale, their niece, is the daughter of Mary Dauro's sister, as well as being the godchild of the Dauros. She helped them at Mary Ann's Gift Shop, their first store, in 1950 when she was only nine or ten years of age. The Dauros were attached to Carolyn, having no children of their own, and after purchasing the property ² for the second shop in 1952, decided to name it after her.

The new candy shop was built in 1952, and during that year the Dauros went to Carolyn's home to discuss naming the store after her. Carolyn's father, Ben Morreale, testified their reason for so naming the shop was that it would become Carolyn's upon their death. Apparently the conversation led to the following undated instrument, handwritten by Mary Dauro, and witnessed by two friends of the Morreales and Dauros after being signed.

We, Mary F. & Johnnie Dauro agree to leave Carolyn's gift shop and anything on that property will go to Carolyn upon our death. The shop will be name Carolyns gift shop.

Mary F. Dauro

John P. Dauro

Witness:

Edward J. Gipson

Louise Gipson

The record does not disclose whether Carolyn participated in this agreement and because of her tender years it seems unlikely that she could have done so. She, of course, could not testify under the "Dead Man's Statute" and because the witnesses to the instrument had since died, its authenticity, if a will, was proved by Ben Morreale, as to the subscribing witnesses' signatures. ³

The testimony reflects that Carolyn at times worked for the Dauros in the candy shop when not engaged in school affairs during the regular terms, and on a more regular schedule during school vacation until she graduated in 1957. Whether Carolyn was fully or partially compensated for her activities or paid at all, was sharply disputed. On this conflict the chancellor found, largely on the testimony of Helen Weber, another employee in the candy shop during those years, that Carolyn was in fact compensated weekly. ⁴

There was also evidence of the Dauros being displeased with Carolyn because of a boy she briefly dated in high school, although the testimony varies as to the severity and whether there was a reconciliation.

In any event, John's brother Vincent, related statements made in later years by John and Mary Dauro to Vincent, which disclosed they intended at least at the time of the conversation, for Carolyn to have the shop upon their death, because they had started with little or nothing and Carolyn's help in the shop entitled her to something.

However, for reasons known only to him, John conveyed part of the subject property to Anna D. Stewart, another niece, on March 9, 1979. After John's death in 1979, there was admitted into probate John Dauro's will of July 25, 1973 wherein he devised his property to Helen Weber, Anna Dauro Stewart and her three children without mentioning Carolyn Voss or the gift shop.

On November 8, 1979, Carolyn probated a claim against Dauro's estate for $19,395 for services rendered. The claim however, was withdrawn, and this suit instituted, alleging that Carolyn and the Dauros had entered into a contract which was also a mutual will, wherein it was orally agreed that John and Mary would leave Carolyn's Gift Shop to Carolyn in consideration of her working in the candy shop. She charged the services were without compensation and that Dauro's subsequent will abrogated their agreement. There was also an allegation that the latter will was the product of undue influence and fraud. The complainant prayed she be granted the property upon which Carolyn's Candy Shop was situated, or in the alternative, for an award of $19,395 for services rendered.

An amended bill was filed alleging additionally that John Dauro had forgotten his previous promise because he was old, had become ill, and could neither read nor write, and for these and other reasons his estate should be estopped from conveying the subject property pursuant to his last will.

The issue is whether the 1952 instrument, if a will, was revoked by John Dauro. The resolution of this issue requires a scrutiny of the circumstances at the time of the first instrument's execution and thereafter.

Although the complaint did not request the 1952 instrument be admitted to probate as the last will of the Dauros, the issues presented necessarily required the trial court to resolve the question of whether it was subject to probate. Although our holding in Perry v. Aldrich, 251 Miss. 429, 169 So.2d 786 (1964), would not permit the probate of the earlier instrument when another writing had been probated as the last will of John Dauro, the trial court nevertheless held the earlier instrument to have been a valid will, which was revoked by the later will. The court also found from the conflicting evidence, that "Ms. Weber had been an employee of the Dauros during a portion of the time that the complainant was working for the Dauros. Ms. Weber was paid for her work and her testimony was that the complainant was also paid." In a supplemented opinion, the trial court found that complainant "failed to prove that she is entitled to any relief based on a quantum merit (sic) basis by a preponderance of the evidence," whereupon the bill of complaint was dismissed.

The wording of the earlier writing did not refer to any services that Carolyn would perform for the Dauros. It mentioned only that the shop would be named "Carolyn's Gift Shop" and that the Dauros "agree" to leave it and anything on the property to Carolyn upon their deaths. Since the services entitling her to the property were not mentioned in writing it became Carolyn's burden to prove the agreement concerning her services by clear and convincing evidence and that she performed such in consideration of the promised devise.

If the burden of proof had been met by the complainant it would have had the effect of confirming the irrevocability of the 1952 will. See Monroe v. Holleman, 185 So.2d 443 (Miss.1966); Denson v. Denson, 203 Miss. 146, 33 So.2d 311 (1948); Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946); and, Price v. Craig, 164 Miss. 42, 143 So. 694 (1932). Our difficulty in the instant case is not so much the rule of law to be applied, as it is in finding facts from the evidence upon which to sustain the thesis claimed by the appellant.

The assignments of error urged for reversal are:

1. The trial court erred in failing to find there was a contract between the decedents and appellant shown by clear, convincing and credible evidence.

2. The trial court erred in finding that although it had found that there was a mutual will that it was revoked by Mary Dauro.

3. The trial court erred in finding that John Dauro revoked the mutual will after the death of his wife, Mary.

4. The trial court erred in finding that appellant was not entitled to compensation on a quantum meruit basis.

In addressing the first assignment for reversal we note that in Kalavros v. Deposit Guaranty Bank & Trust Co., 248 Miss. 107, 158 So.2d 740 (1963), we held the following concerning the degree of proof required in this type of case:

The chancellor rejected the claim of appellant, holding that the facts in this case fail to establish an irrevocable contract between the parties, which required Theo Grillis to make a will devising one-half of his property to appellant. We are of the opinion that the chancellor was correct in so doing, because the evidence is not "clear, definite and certain", as is required by the rule of law heretofore recognized in cases in this State where the contract is sought to be established to make a will. See In re Boyd's Estate, 228 Miss. 526, 87 So.2d 902; In re Reinecke's Estate, 225 Miss. 376, 83 So.2d 438. 158 So.2d at 743.

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 Johnston 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 executes 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.

In comparing Kalavros and Tomme to this...