Allen v. Bromberg

Jun 30, 1909

Reporters:: , ,
Before:: Simpson

SIMPSON, J.

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 appеllees that the court, on that occasion, decided that the agreement by Mary B. Johnson with her husband, Frederick Johnson, to makе a. certain disposition of her property .by will, was valid and binding. A reference to that case will show that the appeal wаs 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 *623147 Ala., page 772 of 41 South. It will be seen that the eonrt exрressely refrained from- deciding the most important point in this case, to wit, whether the agreement contended for was Amid under the рrovisions of the statute of frauds.

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 сannot 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 .quеstion 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 reаped the fruits of the will of another, he cannot revoke his will made niutnally, even though it relates to lands. These are based upоn the performance by one party of his part of the contract, Avhich principle, as avÜI be shown, does not apрly 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 оf 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 аt the time of making the will, and he per*624formed, his part, in which it was held that the will could not be afterwards revoked. — Smith v. Tuit, 127 Pa. 341, 17 Atl. 995, 14 Am. St. Rep. 851; Tuit v. Smith, 137 Pa. 35, 20 Atl. 579; Smith v. Pierce, 65 Vt. 200, 25 Atl. 1092 (there was really no acceptance in this case) ; Bird v. Pope, 73 Mich. 483, 41 N. W. 514.

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 оf 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 warehousе 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 еven in this extreme case where the party had acted on the faith of the contract, performing his part so as to plаce 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 thаt 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 *625power of revocation. The court held, it valid, but said, “To make an irrevocable will would be the creation of an instrument , unknown to law,” and went on to state that either party could revoke it after the death of the other. — Hill v. Harding, 92 Ky. 79-80, 17 S. W. 199, 437. An agreement between A. and B. by parol that each would make a will of real estate in favor of the other is void within the statute of frauds. — Gould v. Mansfield, 103 Mass.408, 4 Am. Rep. 573; Swash v. Sharpstein, 14 Wash. 426, 44 Pac. 862, 32 L. R. A. 796; Hale v. Hale, 90 Va. 728, 19 S. E. 739. “A verbal prоmise to make a will devising land to the promisee, in consideration ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of his present conveyance of land to the promisor, is void under the statute of frauds.” — Manning v. Pippin, 86 Ala. 357, 364, 5 South. 572, 11 Am. St. Rep. 46; Manning v. Pippen, 95 Ala. 537, 541, 542, 11 South. 56.

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; thе court saying: , “But it is also a contract, in essence and fact, being executed, as stated on the face of the paрer, fin consideration of past and future treatment,’ etc. The purpose of the bill, as we construe it, is not to enforce thе parol agreement, in which the deceased agreed to bequeath to complainants all the property she might оwn at the time of her death, but rather to enforce the modified agreement, as evidenced by the written instrument purporting to be а mil. • No question can properly arise, therefore, as to the influence of the statute of frauds.” —Pages 454, 455 of 80 Ala., page 625 оf 2 South. (60 Am. Rep. 107). The fact that parties make mu-*626trial wills does not show that there was any agreement to do so (Edson v. Parsons, 85 Hun, 263, 32 N. Y. Supp. 1036; Edson v. Parsons, 155 N. Y. 555; and as said in the Hale Case, supra, the walls themselves cannot furnish any memoranda of the contract. “Neither alludes to any contract or refers to any . other wanting; and the established rule is that the memorandum of a contract for the sale of real estate, required by the statute, must show, either on its face or by reference to some other writing, the. contract between the parties, so that it can be understood without- having recourse to parol proоf.” — Page 731 of 90 Va., page 740 of 19 S. E.

It results that, if there was a verbal agreement in this case, it was void under the statute of frauds, and Mrs. Johnson hаd 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.

Dowdell, C. J., and Denson and Mayfield, JJ., concur.