149 Va. 815 | Va. Ct. App. | 1928
delivered the opinion of the court.
W. B. Frizzell, of Princess Anne county, died October 17, 1924, leaving a widow, Grace G. Frizzell, and a posthumous child, Cecil Harold Frizzell, born April 25, 1925. By his will, dated February 15, 1924, said W. B. Frizzell devised and bequeathed to his nephew, Clarence G. Frizzell, all his real estate situated in Princess Anne county, consisting of two farms, and all horses, mules, live stock and farming implements and utensils that he owned at the time of his death.
After the birth of said posthumous child, who was and is the only child of the testator, this suit was brought by the widow, Grace G. Frizzell, in her own v
Depositions were duly taken in behalf of the appellee, and upon the hearing of the cause the court sustained the contract set up by the cross-bill; decreed that Clarence G. Frizzell is entitled to receive, and is vested with title to, all the real estate and personal property devised and bequeathed him by the said will, and dismissed the bill as to him. From that decree, complainants in the court below took this appeal.
The first and principal question presented by the record is whether the evidence is sufficient to justify the enforcement by a court of equity of the parol contract relied on by appellee to avoid the provisions of the statute above referred to; and it is clear that, in considering this question, the evidence must be looked at as if W. B. Frizzell had died without a will, and Clarence G. Frizzell were now here seeking specific performance of said parol contract against the heirs and personal representatives of W. B. Frizzell.
On February 6, 1924, W. B. Frizzell married Grace-G. Frizzell, one of the appellants in this suit, and took his wife to his home in Princess Anne county, whereappellee and his wife continued to live as before.
According to the substance of appellee’s own testimony, on August 1, 1924, W. B. Frizzell having become in bad health and unable to do any physical labor, the-partnership existing between them was dissolved, and they entered into a new verbal agreement, which is. stated in the cross-bill as follows:
“Your respondent further avers that in August, 1924,. your respondent entered into an agreement with the-late William B. Frizzell whereby your respondent agreed from that time until the death of the late William B. Frizzell your respondent would board the late William B. Frizzell, and his wife, and would render to the said William B. Frizzell such aid and assistance,.
The cross-bill then proceeds to allege that appellee fully performed his part of said agreement, and W. B. Frizzell performed Ms part of the same by maMng the promised devise.
It is contended by counsel for appellants that the contract above set out, to the extent of the real estate involved, comes within the provisions of section 5141 of the Code of Virginia, and is controlled by the interpretation placed upon that statute in the case of Wohlford v. Wohlford, 121 Va. 699, 93 S. E. 629.
The above mentioned statute, after providing that no real estate shall be conveyed except by deed or will, further provides as follows:
“Nor shall any right to a conveyance of any such estate or term in land accrue to the donee of the land, or those claiming under him, under a gift or promise of a gift of the same hereafter made and not in writing, although such gift or promise be followed by possession thereunder and improvement of the land by the donee, or those claiming under him.”
In Wohlford v. Wohlford, supra, it was pointed out by Judge Kelly, speaMng for the court that:
“ ‘Prior to May, 1888, the date upon which the Code of 1887 took effect, a parol gift or a promise of a
After stating the terms of the alleged contract in the case then under consideration, and holding that section 2413 of the Code of 1887 (section 5141 of the Code of 1919) “was expressly designed to abolish the doctrine of Halsey v. Peters and other Virginia eases,” Judge Kelly, later on in the opinion, says: “The instant case presents no stronger facts upon which to claim that the gift was based upon a valuable consideration than did the case of Halsey v. Peters, and we think, therefore, it must be accepted as settled law in Virginia that contracts of the character here involved are expressly invalidated by the statute in question.”
From reference to the facts in Halsey v. Peters and Wohlford v. Wohlford, it is cleaJrly evident that the doctrine of the latter case was intended to apply only to those cases in which the gift or promise of a gift is unsupported by a consideration, and not to those where there is such a consideration for the gift or promise as will allow the same to be treated in equity as a valid contract for the sale or devise of land.
Since, therefore, a consideration is alleged for the promise sought to be enforced in the instant ease, and there is some evidence tending to support that allegation, we do not think the contract now under considera
In Burruss v. Nelson’s Ex’r, 132 Va. 17, 110 S. E. 254, where an aunt had agreed with her nephew that if he would care for her and manage her estate during her declining years, she would, upon her death, leave him a certain farm; and the plaintiff sought to have the agreement enforced, the court said:
“The alleged contract was by parol. Its enforcement in equity depends upon clear and convincing proof.
“In Plunkett v. Bryan, 101 Va. 814, 818, 45 S. E. 742, 744, Judge Harrison, speaking for this court, said: ‘The principles upon which a court of equity
will avoid the statute of frauds and enforce a parol agreement for the sale of land are well settled. They are briefly but clearly stated in Wright v. Puckett [22 Gratt. (63 Va.) 370], supra, to be as follows: “1st. The parol agreement relied on must be certain and definite in its terms. 2nd. The acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved. 3rd. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation. These requisites must concur before a court of equity will decree specific execution.” The act or acts of part performance must be of such an unequivocal nature as of themselves to be evidence of the execution of an agreement. They must be such as could be done with no other view or design than to perform the agreement. They must unequivocally refer to and
While the evidence adduced as to the existence of the alleged contract is not of the clear and convincing character to be desired in cases of this sort, it is unnecessary to discuss it with reference to that question; for if it be conceded that the existence and terms of the contract set up by appellee are satisfactorily proved, it is clear that the evidence fails to meet the foregoing requisites in other essential particulars.
It appears from the evidence that from the time appellee and his wife took up their abode with W. B. Frizzell, he received $50.00 per month for his services until August 1, 1923. From that date until August 1, 1924, appellee was compensated for such services as he rendered under a special partnership agreement in which no contract for the sale or devise of the farms was involved. The only agreement in which there appears to have been any consideration for W. B. Frizzell’s promise to devise the farms to appellee is that of August 1, 1924, when appellee undertook to
An examination of the evidence shows that the “board” referred to consisted merely of furnishing food for Mr. Frizzell and his wife; and the “care” expended was only such usual and ordinary attention as any one would be expected to render a sick relative living under the same roof — especially when that roof was his own. In reference to this subject Mrs. Clarence G. Frizzell testified in effect that she and Mrs. Grace G. Frizzell jointly looked after the housekeeping; “both did about the same;” that Mr. Frizzell was in bed during the two months preceding his death, and “we had to help him up and down;” that he had a nurse part of the time and she and her husband “helped to wait on him, and his wife too.” On the same subject appellee’s testimony was as follows:
“Q. State just what you did in the way of looking after him?
“A. It is hard to do, Captain.
“Q. Well, state generally what you did.
“A. Well, I waited on him as best I could and what I could do night and day. He was an invalid in bed and for his wife and my wife and also myself and a nurse he had for a month or two and did what I could for him; went after medicine, gave him medicine, and everything else I could do, got anything for him he wanted.
“Q. Did you board him and his wife?
“A. I did.”
Considering the fact that appellee was at the time making his home at Mr. Frizzell’s house and had
It is contended by counsel for appellee that a refusal of specific performance will operate a fraud on the appellee, and “place him in a situation that does not lie in compensation;” and this view was expressed by the trial court in its decree. We are unable to concur in this conclusion.
There is nothing so exceptional or peculiar in the character of the alleged acts of performance in this case that their pecuniary value may not be easily estimated. Mr. Frizzell lived less than three months after the alleged contract was made, and there is no good reason why appellee cannot be fairly and justly compensated, if necessary, for such personal services as he and his wife rendered* in helping to nurse and wajt on him during his last illness. The “board” and taxes also, if they can be considered as a part of the consideration for the alleged promise, can be readily computed in dollars and cents. These considerations alone are sufficient to bar specific execution of the alleged parol contract.
That Mr. Frizzell wanted appellee to have the real and personal property referred to, at his death, we have no doubt. At the time he made his will he had
It only remains to consider the question of title to the personal property bequeathed to appellee by the will, which he claims was given to him by W. B. Frizzell in his lifetime. It is contended by counsel for appellants that this gift is invalid under the provisions of section 5142 of the Code. As it appears that the gift or transfer was not in writing, and that the donor and donee were residing together at the time, we deem it only necessary to say, without discussion, that this contention should be sustained, and the property referred to dealt with by the court below according to the provisions of the statute relating to pretermitted children.
Counsel asks in his petition for appeal that this court adjust and decree the respective equities of the parties under that statute, but as those questions did not arise in the trial court, by reason of its decree, and counsel for appellee does not undertake to deal with them in his brief, we do not consider they are now properly before us, and, therefore, refer them to the learned chancellor of the lower court for consideration.
Reversed and remanded.