Gray v. MarinoGray v. Marino
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Flоyd D. Gray instituted this suit in chancery in the Circuit Court of Nicholas County praying for specific performance of a verbal agreement to make a will. The bill alleges that in the month of October, 1947, Mrs. Myrtle Ritchie, a widow, promised plaintiff, Gray, that if he would move into her home and remain with her each night thereafter, for as long as she lived and remained in business, she would give him, by will, all of her property at her death. The bill then alleges his acceptance and full compliance with the obligations imposed uрon him thereby; and sets forth that, upon her death, two wills were produced and probated, one dated May 13, 1948 in which he was named sole devisee and beneficiary, and another, dated February 2, 1951, by which the property was given to the defendants.
The defendants demurred to the bill on the ground that the suit was barred by the Statute of Frauds and that the plaintiff had an adequate remedy at law, which de-murrrer was overruled by the court. The defendants then jointly answered denying the material allegations of the plaintiff’s bill.
The cause proceeded to trial and at the conclusion of the evidence, the court entered its order granting the
The parties will be referred to in this opinion as plaintiff and defendants, the positions they occupied in the trial court.
The defendants seek a reversal of the decree of the circuit court upon the grounds that: (1) The plaintiff failed to prove the contract аlleged by clear and convincing evidence; (2) the agreement is too indefinite to be enforceable; (3) the plaintiff failed to prove valuable consideration; (4) the contract sued upon is not equitable; and (5) the alleged verbal agreement upon which the suit is founded is unenforceable under the Statute of Frauds, Code, 36-1-3. The plaintiff maintains that the verbal contract was clearly proved, and that the contract was not within the provisions of our Statute of Frauds inasmuch as: (a) thе first will of Mrs. Ritchie was a sufficient note or memorandum in writing to meet the requirements of the statute;, (b) there was performance by ihe plaintiff under the terms of the contract; and (c) the contract required services on the part of the plaintiff of a personal nature and peculiar character not measured by any pecuniary standard.
This Court will not reverse a decree of a trial court unless it is plainly wrong, without evidence to support it, or clearly against the preponderance of all of the evidence. 1 M.J., Appeal and Error, § 277; Hurley v. Hurley, 127 W. Va. 744, 34 S. E. 2d. 465; and numerous other West Virginia cases cited in the text above mentioned.
“A contract to make a will is controlled by the same rules and principles and enforceable as other contracts.”
Turner
v.
Theiss,
129 W. Va. 23, 38 S. E. 2d. 369.
Jefferson
v.
Simpson,
83 W. Va. 274, 98 S. E. 212. There is no doubt, notwithstanding the ambulatory nature of a will, that a person may by a certain and definite contract bind himself to dispose of his estate by will in a particular way, and that such a contract in a proper casе will be
“It is a well-established principle of equity that, in order to entitle one to specific performance, all the material provisions of the contract must be distinctly and clearly proven. Equity will not enforce a doubtful contract, for fear of doing a greater wrong by doing so than by leaving the parties to their legal remedy. Accordingly, * * * if it be parol, the proof must be so clear, cogent and convincing as to leave no doubt in the mind of the chancеllor that the particular contract as averred was made, and its terms and conditions must be clearly shown. * * * ” 17 M. J., .Specific Performance, § 101; Kennedy v. Burns, 84 W. Va. 701, 101 S. E. 156; Cooper v. Cooper, 65 W. Va. 712, 64 S. E. 927.
In
Davidson
v.
Davidson,
72 W. Va. 747, 79 S. E. 998, this Court said: “We are bound by the rule that such contracts [parol agreements to devise and bequeath property] are viewed by courts with suspicion, are not favored, and to be enforceable must be upon sufficient consideration, and be equitable, and clear and definite in terms.” Furthermore, even where the terms of a con
The plaintiff in this litigation is confronted with two statutes, both of which are actually rules of evidence. The first, Code, 36-1-3, reads as follows: “No contract for the sale of land, or the lease thereof for more than one year, shall be enforceable unless the cоntract or some note or memorandum thereof be in writing and signed by the party to be charged thereby, or by his agent. But the consideration need not be set forth or expressed in writing, and it may be proved by other evidence.” The second statute, often referred to as the deceased person’s statute, Code, 57-3-1, reads in part as follows: “No person offered as a witness in any civil action, suit or proceeding, shall be excluded by reason of his interest in the event of the action, suit or proceeding, or because he is a party thereto, except as follows: No party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, insane or lunatic, * * The defendants were likewise handicapped in presenting their evidence by the last quoted statute.
We must apply the facts in this cause to these well established legal and equitable principles to determine the rights of the parties, and this requires a rather detailed recitation of the evidence adduced at the trial.
Mrs. Ritchie, deceased, had, for a period of approximately eight years prior to 1947, resided in the Town of Gilboa, in Nicholas County, where she operated a place
Bona Nutter, a brother of Keith, stated that Mrs. Ritchie told him, shortly after Gray came to live at Uncle Tom’s Cabin, that she had promised Gray that if he would move into her home and remain with her each night thereafter that she would will him her property. The witness further stated that Mrs. Ritchie repeated this conversation to him on two or three occasions after Gray came to live with her.
Mrs. Clarence Meeks, an aunt of the plaintiff Gray, a resident of Cannelton, West Virginia, testified that she, her husband,. Mrs. Ritchie and Floyd Gray went to John’s Hopkins Hospital in Baltimore, Maryland for the purpose of having her husband and Mrs. Ritchie go through the clinic at that institution, and that while there in Mrs. Ritchie’s room, while she, Mrs. Ritchie and Gray were present, she heard Mrs. Ritchie make the following . statement:
“The second day we were there. She said, ‘Floyd’, she said, I ‘believe they found something wrong with my heart.’ She said, ‘They are checking me awfully close,’ and she said, ‘In case something would happen to me that I would drop off or anything’, she said, ‘you go home and put that will that I made — or get those papers,’ she said, ‘and put them on record, and then send Bell and Simonds after my body because’ she said, ‘you can’t never tell what my people might try to do,’ and she turned to me and she said, ‘You don’t know what, of course, I am talking about but,’ she said, T have obligated myself to give Floyd everything that I have by my will if he would come and stay with me, because I had to run this business here onthe road,’ she said, ‘and I am afraid.’ She said, ‘My health is bad and I am afraid to stay there by myself, because I handle a good bit of money and,’ she said she told him if he would just come and stay with her аnd be there at night, why, she would, by her will, will him everything she had, because she said, ‘My people don’t need it;, they have plenty,’ and she said she didn’t want to stay there by herself.”
The witness stated that the four people named departed for Baltimore on November 15, 1948, arrived there on _the 16th, and that the conversation which she related occurred on the second day after their arrival. She further stated that Mrs. Ritchie visited in her home a half dozen times or more, that she had visited Mrs. Ritchie a number of times and had obsеrved that Floyd Gray was regularly staying at Mrs. Ritchie’s house. However, when asked, upon direct examination, she stated that she did not remember the date of Mrs. Ritchie’s death, nor the month, but she believed the year to be 1951. Mrs. Ritchie’s physician testified that she had been suffering from a heart condition since the year 1911.
The trial chancellor was correct in permitting the testimony of Keith Nutter, he not coming within the prohibition of the deceased person’s statute, by virtue of being indebted to Mrs. Ritchie at the time of hеr death. The testimony of Bona Nutter and Mrs. Meeks was also admissible as being declarations against interest made by Mrs. Ritchie subsequent to the date of the alleged oral contract. Jefferson v. Simpson, supra; Bartlett v . Patton, 33 W. Va. 71, 10 S. E. 21.
“The courts are not inclined to regard statements by the promisor against interest as of great weight, since it is recognized that such evidence consists in the repetition of oral statements which may be the result of a misunderstanding of the exact language used by the promi-sor, and generally regard such a statemеnt as insufficient in itself to secure the establishment and specific performance of such a contract. * * * ” 57 Am. Jur., Wills, § 186; Peters v. Poro, 96 Vt. 95, 117 A. 244, 25 A.L.R. 615.
Mrs. Ritchie was taken to the hospital the last time on May 8, 1951, аnd died June 28, 1951. The plaintiff Gray testified that he left Uncle Tom’s Cabin after Mrs. Ritchie went to the hospital the.last time; that he was married to his third wife on May 12, 1951, and thereafter lived in Summersville, West Virginia.
Betty Miller, savings teller at the Montgomery National‘Bank, testified that on March 29, 1949, a savings account was opened at that bank in the sum of $5*000.00 in the name of Floyd Gray, and that a “short time thereafter it was changed to a joint account in the names of Floyd Gray and Myrtle Ritchie. She further stated that on September 18, 1950, Gray withdrew the account and opened it in the name of Mrs. Myrtle Ritchie, but that two days later Mrs. Ritchie and Floyd Gray came to the bank and reopened it as a joint account. On March 9, 1951, this witness says Mrs. Ritchie came to the bank, had the account changed to her name only, and that it remained in that status thereafter.
John William Groves, testified on behalf of the defendants, and said that he was a close friend of Mrs. Ritchie, aiding her on occasions with her business and personal affairs. He stated that he had spent “quite a few” nights and week ends at Uncle Tom’s Cabin, after Gray came to live there, when the latter was absent. He stated that on some of those occasions Gray would be coon hunting, but where he was on other nights when absent he did not know. He further stated that Cecil Seebert lived directly across the highway from the Cabin, and that, while Gray was staying at Mrs. Ritchie’s place, Seebert did all the general work that was to be done. He was asked this question, and made the following answer:
“Q. Do you recall any occasion when Myrtle Ritchie called upon Mr. Floyd Gray to perform such services for her which he refused to do ?”
“A. Well, one specific thing I can mention is the stove down in the living room which went for quite a while and the weather was really cold and couldn’t get a stove up. Cecil had to get it оut of the old barn or garage, get the stove pipe from down at Mr. Gray’s store, and put up the stove. That was one thing that I definitely recall.”
He further stated that he was at the Cabin on one occasion when Mrs. Ritchie had pneumonia and that, although Gray was there, Mrs. Marino was required to build a fire. Mrs. Marino is apparently Evelyn Marino, one of the defendants in this cause.
Cecil Seebert, a witness on behalf of the defendants, stated that he lived within calling distance of the Cabin across the highway; that hе took his meals with Mrs. Ritchie, serving as a kind of handy man for her; “helped
The defendants offered R. A. Clapperton, an attorney of Summersville, as a witness, who stated that Mrs. Ritchie came to his office in December, 1950, or early in January, 1951, but the trial court refused to permit him to testify as to a conversation had at the time between Mrs. Ritchie and the witness relative to a will. We are of the opinion that the court was correct in excluding this testimony, the declarations having been made in the absence of Floyd Gray, the other party to the alleged parol agreement, and such statements under those circumstances were self-serving.
Crothers
v.
Crothers,
40 W. Va. 169, 20 S. E. 927;
Jefferson
v.
Simpson, supra.
However, the testimony of this witness to the effect that he saw a handwritten will in Mrs. Ritchie’s possession, upon the occasion of her visit to his office, on which was written the name of “Evelyn Marino”, among other things which he could not recall, was admissible. This witness had no interest in this cause that would exclude his testimony under the deceased person’s statute, nor was there an attorney-client relationship between him
The evidence adduced in this cause, perhaрs partially because of the prohibition of the deceased person’s statute, does not clarify the relationship which existed .between Floyd Gray and Mrs. Ritchie between October, 1947 and May, 1951. “ * * * Circumstantial evidence as to the relation of the parties, their business habits, and the surrounding circumstances is admissible on the issue whether a contract to devise property in consideration for services to be rendered was made. * * * ” 57 Am. Jur., Wills, § 185. We know that in October, 1947, Floyd Gray, freshly divorced from his secоnd wife, came to live with Mrs. Ritchie in the residence part of her place of business; that on May 13, 1948, Mrs. Ritchie executed a holographic will devising and bequeathing all of her property to Floyd Gray; that on February 2, 1951, Mrs. Ritchie executed another holographic will by which she gave her property to the defendants; that on May 8, 1951, she was taken from her home to a hospital in Charleston, where she died June 28, 1951 without returning to her place of residence at Gilboa; and that, on May 12, 1951, four days after shе was removed to the hospital, Gray left Mrs. Ritchie’s establishment, married a third wife, and established residence in the Town of Summersville. The other pertinent events and occurrences that transpired during this period of time have been related.
The plaintiff maintains that the will of May 13, 1948, is evidence of the alleged parol agreement between the parties, and cites in support of this contention
Wilson
v.
Starbuck,
116 W. Va. 554, 182 S. E. 539;
In Re Reed’s Estate,
125 W. Va. 555, 26 S. E. 2d. 222. This Court has considered it as such, along with the other evidence, in arriving at its conclusion in this cause. Hоwever, the
Wilson
and
Reed
cases involved mutual testamentary, instruments and, of course, the decisions in all of the cases relied upon were based upon the factual situations as pre
In
Miller
v.
Miller’s Ex’r.,
2 Va. Dec. 97, 21 S. E. 471, 473, the court said: “It is a serious matter, when a man dies, for a claimant to come forward, and demand the estate, upon the ground that deceased had in his lifetime verbally promised or agreed to make a will giving his estate to said claimant, and that, too, in the face of a will which has given it to some one else. Such a claim naturally excites surprise, and a court of equity will always require the clearest and most convincing proof to sustain such a claim.” Realizing that the discretion of a court of equity to grant or withhоld specific performance of a contract is not an arbitrary or capricious one, but is a judicial discretion to be exercised in accordance with settled rules and principles of equity, and with regard to facts and circumstances of the particular case, we hold that the plaintiff failed to prove the parol agreement alleged in his bill of complaint by clear and con
In view of the plaintiff’s failure to prove the contract as alleged, it is unnecessary to pass upon the question of whether or not the revoked will of May 18, 1948, would have been a sufficient memorandum to avoid the effect of the Statute of Frauds. However, as the question was ably and intelligently argued and briefed by counsel on both sides, and has been answered in the affirmative by the trial court in passing upon defendants’ demurrer, it may be well to discuss it very briefly at this pоint.
We are of the opinion that the precise point has not been heretofore decided by this Court, but we believe the rule to be that a will, containing no reference whatsoever to the parol agreement sought to be established and subsequently revoked by the execution of another will, in and of itself does not constitute a sufficient memorandum to permit the by-passing of the Statute of Frauds. That such-may be some evidence to support a purported parol agreеment is clear.
Wilson
v.
Starbuck, supra; In Re Reed’s Estate, supra.
However, we are in accord with the holding in the case of
Hale
v.
Hale,
90 Va. 728, 19 S. E. 739, wherein it was said: “ * * * the appellant contends that the case is not within the statute, because the wills in question are sufficient memoranda of the agreement to satisfy the requisition of the statute. But can this view be maintained? We think not. An examination of the wills, which are exhibited with the bill, shows that each purports to be a mere will, and nothing else. Neither alludes to any contract, or refers to any other writing; and the established rule is that the memorandum of a contract for the sale of rеal 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 proof.” This rule has been approved
The decree of the Circuit Court of Nicholas County is reversed and the bill is dismissed.
Reversed; bill dismissed.