Wilson v. Gordon

• Decision Date: 22 December 1905
• Citation: 53 S.E. 79,73 S.C. 155
• Parties: WILSON v. GORDON et al.
• Court: South Carolina Supreme Court

53 S.E. 79

73 S.C. 155

WILSON v. GORDON et al.

Supreme Court of South Carolina

December 22, 1905

Appeal from Common Pleas Circuit Court of Abbeville County; J. E McDonald, Special Judge.

Action by M. Harvey Wilson against Jane L. Gordon and others. Decree for plaintiff, and defendants appeal. Reversed.

Gary A. J., dissenting in part.

Wm. N Graydon, H. J. Haynesworth, Thos. P. Cothran, and Wm. P. Greene, for appellant s. Tribble & Prince, Frank B. Gary, and J. P. Carey, for respondent.

WOODS J.

This is an action for the partition of the lands of Miss Jane L. Gordon, who died in 1902, intestate, having destroyed her will a short time before her death. Mrs. Jane W. Crymes, a niece, and her children, who are defendants in the cause, deny the right to partition, claiming the entire property under the allegation that Jane L. Gordon and her sister, Mary Gordon, in pursuance of a binding agreement between them, executed mutual wills, each giving to the other her entire property, with a provision in the will of each testatrix that, if her sister should die in the lifetime of the testatrix, her property should go to Mrs. Crymes and her children; that the destruction of her will by Jane L. Gordon after the death of her sister was a violation of the contract of which Mrs. Crymes and her children were the beneficiaries; and that in enforcement of the contract the court should decree the title to the property to be in them as if the will had not been destroyed. It is admitted by the other heirs of Jane L. Gordon that she and her sister Mary did execute contemporaneously wills of this purport, but the case turns on the issue whether these wills were executed in pursuance of a contract which bound the survivor to leave her will so made in force at her death. The referee to whom the cause was submitted held there was no such contract, but the circuit judge came to the opposite conclusion.

1. We consider first the exceptions charging error in the admission and in the exclusion of evidence. It is not necessary to decide whether an agreement to make a will in the future devising real estate may be proved by parol. Here the wills were actually made, and the testatrix who undertook to revoke after the death of her sister had received the full benefit of the provisions of her will. The case is, therefore, stronger on this point than Turnipseed v. Sirrine, 57 S.C. 569, 35 S.E. 757, 76 Am. St. Rep. 580, where such evidence was held competent, and stands on the same ground in this respect as Bruce v. Moon, 57 S.C. 60, 35 S.E. 415. The two wills were drawn by Col. J. N. Brown as attorney for both sisters, and appellants submit his testimony as to the contents of the letter of instruction, and the preparation of the wills should have been excluded as a privileged communication from client to attorney. Mrs. Crymes and her children claim against the heirs of Jane L. Gordon through a contract alleged to have been made by her with Mary Gordon. If Col. Brown was the confidential attorney of either of these ladies, he occupied that relation to both, and as between them or those claiming under them the communications made by them to him were not privileged, especially as these communications related to instructions for drawing their wills. Moffatt v. Hardin, 22 S.C. 9; O'Brien v. Spalding, 66 Am. St. Rep. 202, note.

2. The testimony of Jane L. Gordon, taken by the probate judge in proving in solemn form the will of Mary Gordon, was admitted as the declaration against her right to revoke her will. We do not perceive on what grounds this evidence could be regarded incompetent, and none has been suggested in argument.

3. W. J. Milford testified on behalf of respondents that Jane L. Gordon told him she had destroyed her will. Upon the cross-examination, in giving the remainder of the conversation, he testified: "She said she advised her sister that both should destroy their wills, but she would not do it. She said [Miss Mary] would let hers go as she had made it. It might save each other some trouble, but that Miss Jane might destroy hers if she wanted, but if both destroyed it might cause some trouble." "The general rule upon this subject is that, while it is competent to introduce declarations of a party against his interests, it is not competent to introduce his declarations in his own favor, unless they were made in, and constitute a part of, the conversation brought out by the other side; and this we understand to have been the ruling of the circuit judge, in which we think there was no error." Williams v. Mower, 29 S.C. 332, 338, 7 S.E. 505. Under this rule, when in the effort to show the destruction of the will after the death of her sister, in violation of the contract not to do so after she had received the benefits of the contract, Miss Jane's declaration to the witness that she had burned her will was introduced, it was competent for the witness to testify at least that she told him in the same conversation of having given notice to Miss Mary of her intention to destroy it.

4. The vital question is whether Jane L. Gordon made the will which she destroyed in pursuance of a contract with her sister Mary Gordon; the consideration being the execution of a will by Mary Gordon under which Jane L. Gordon received her property. If the wills of the sisters were made under a mutual contract, and Jane L. Gordon did not give notice to her sister of her intention to revoke, so that she could revoke also, then the right of Mrs. Crymes as a beneficiary of the contract to take the property that would have passed to her under the will of the survivor is unquestioned. A contract to make a certain disposition of property by will is as valid as any other contract; citing 3 Pomeroy's Equity Jurisprudence, § 1244. Chief Justice Simpson, in discussing such contracts, says, in McKeegan v. O'Neill , 22 S.C. 455, 467: "Agreements may be divided into two classes, distinguished by the mode in which they are made. (1) The ordinary agreement, where an intentional offer is made on the one side founded upon a sufficient consideration, and an intentional acceptance on the other, resulting in the meeting of minds upon the same terms. (2) 'Where it is created by representations made by one party and acts done by the other upon the faith of such representations. Where an absolute, unconditional representation of something to be done in the future is made by one person in order to accomplish a particular purpose, and the person to whom it is made, relying upon it, does the act by which the intended result is obtained and purpose accomplished, a contract is thereby concluded between the parties." Such contracts may be established by direct proof of an express promise or inferred as a conclusion of facts from the circumstances surrounding the parties. But where a contract to make or not to revoke a will is set up there are strong reasons for requiring an agreement definite and certain established by evidence clear and convincing. The evidence comes from the living against the dead, who cannot speak in her own behalf in disproof of a charge of the violation of a solemn obligation. For this reason it is obvious little, if any, consideration should be given to the testimony of those who claim the benefit of such a contract. On account of the secrecy observed by most persons as to the will they expect to make, there is little general discussion of the subject, and it is therefore difficult to disprove any intention or agreement attributed to a testator. Again, the discussion by two persons bound to each other by the closest ties of affection as to disposition of their property, resulting in separate wills by which the property of each was left to the other, affords no grounds for the inference that either undertook or exacted a legal obligation. Such action may be far more reasonably attributed to the promptings of affection, and courts should not introduce the mercenary element, except upon clear affirmative proof that it was present within the understanding of both parties.

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