50 So. 884 | Ala. | 1909
This case was before this court, at a previous term, on motion to dismiss the bill, and the facts will be found fully- stated in Allen et al. v. Bromberg et al., 147 Ala. 317, 41 South. 771.
It is claimed by the appellees that the court, on that occasion, decided that the agreement by Mary B. Johnson with her husband, Frederick Johnson, to make a. certain disposition of her property .by will, was valid and binding. A reference to that case will show that the appeal was from a decree oveiTuling a motion to dismiss the bill for want of equity, and to dissolve the injunction, and a decree was here rendered dissolving the injunction and dismissing the bill for want of equity, on the ground that the bill sought to enjoin the probating of the will last made by said Mary B. Johnson, which could not be done. The court, however, stated the general principle that a person may make a valid agreement to dispose of property by will; “but the theory on which the courts proceed is to construe such agreement, unless void by the statute of frauds or other reason, to bind the property,” etc. — Page 321 of
It has been declared, with regard to wills of personal property made mutually by agreement between the parties, that after the death of one of the parties, having complied with his agreement, the other party cannot revoke his will. — Dufour v. Periera, 1 Dickens’ Reports, 419; Stone v. Hoskins, L. R. 1905) 194 (in this case it is not specifically stated that only personal property was involved, but it is presumed, as no .question of the statute of frauds was raised) ; Izard v. Middleton, 1 Desaus. (S. C.) 116. There are also cases, where one of the parties to mutual wills has reaped the fruits of the will of another, he cannot revoke his will made niutnally, even though it relates to lands. These are based upon the performance by one party of his part of the contract, Avhich principle, as avÜI be shown, does not apply under our statute of frauds and decisions.— Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528. Others place it upon the ground that the partial or entire performance Avas of such a nature that it would operate as a fraud upon the party performing to deny relief; others again on the principle that a trust was imposed on the land, Which cannot be done under our statute by parol. — Korminsky v. Korminsky, 2 Misc. Rep. 138, 21 N. Y. Supp. 611; Brinton v. Van Cott, 8 Utah, 480, 33 Pac. 218; Heath v. Heath, 18 Misc. Rep. 521, 42 N. Y. Supp. 1087. There are other cases where the will partook of the nature of a contract, and the statute of frauds was complied with, by placing the devisee in possession at the time of making the will, and he per
Onr statute specifically provides that parol contracts relating to the sale of lands or any interest therein are void, unless the purchase money or a portion thereof be paid, and the purchaser placed in possession (Code 1907, § 4289, subd. 5) ; and our court has uniformly held that both of these requisites are necessary, in order to take the contract out of the operation of the statute. — Heflin v. Milton, 69 Ala. 354, and cases cited in Code; also, Thompson v. New South C. Co., 135 Ala. 630, 637, 638, 34 South. 31, 62 L. R. A. 551, 93 Am. St. Rep. 49. In a case where, by a verbal agreement, the defendant had agreed not to erect, or allow to be erected, a warehouse at a certain landing, if complainant would purchase the adjoining land, erect a warehouse, and store freight free of charge, all of which was done, it was held that this performance did not take the contract out from the operation of the statute of frauds, and that a court of chancery could not enforce the contract. — Clanton v. Scruggs, 95 Ala. 279, 10 South. 757. The reasoning of the court is that even in this extreme case where the party had acted on the faith of the contract, performing his part so as to place himself in a position which could not he retraced, the other party could not be estopped from setting up the statute, at least unless the promise was made fraudulently, with no intention of performing it, and the court does not commit itself even to that proposition (page 283 of 95 Ala., page 758 of 10 South.).
In the Court of Appeals of Kentucky it was insisted that a joint will was invalid, because it destroyed the
The case of Holman et al. v. Overall et al., 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107, is relied ,up on by the appellees in this case. In addition to the fact that the latter cases, above cited, are clear and specific to the point, that decision was based on the wording of the paper itself; the court saying: , “But it is also a contract, in essence and fact, being executed, as stated on the face of the paper, fin consideration of past and future treatment,’ etc. The purpose of the bill, as we construe it, is not to enforce the parol agreement, in which the deceased agreed to bequeath to complainants all the property she might own at the time of her death, but rather to enforce the modified agreement, as evidenced by the written instrument purporting to be a mil. • No question can properly arise, therefore, as to the influence of the statute of frauds.” —Pages 454, 455 of 80 Ala., page 625 of 2 South. (60 Am. Rep. 107). The fact that parties make mu-
It results that, if there was a verbal agreement in this case, it was void under the statute of frauds, and Mrs. Johnson had a light, after the death of her husband, to revoke the former will and make another one. The decree of the court is reversed, and a decree will be here rendered dismissing the bill.
Eeversed and remanded.
