179 Ga. 836 | Ga. | 1934
On March 2, 1934, J. N. Harp filed a petition against J. H. MeGeh.ee Jr., as administrator of the estate of W. J. Waller, praying that all the property of the defendant’s intestate be decreed to belong to petitioner under the terms of an alleged agreement made between him and W. J. Waller during the lifetime of Waller. Petitioner alleged that on Jufy 1, 1912, when Waller was sick, he agreed with the petitioner that if petitioner would "quit his business and stay with him, the said W. J. Waller, care for him during his sickness, wait on him, nurse him, and attend to his business affairs until he, the said W. J. Waller, died, that he would make a will and will to the said J. N. Harp all of his property, both real and personal, of which he died seized and possessed, to take effect after the death of his sister, Mrs. M. J. Green, stating that he wanted his said sister to have all his property during her life, and that under his said will he would give all said property to
The defendant demurred on the ground, among others, that the plaintiff’s cause of action, if any he had, accrued on the death óf Waller in 1912, and is now barred by the statute of limitations. The plaintiff offered an amendment alleging that he was a nephew" of Waller, who was unmarried and living with his sister, Mrs. Green, who at that time was an old woman; that Waller was sick, and desired plaintiff to move to Zebulon and care for him and attend to his business until he died; that he prevailed on plaintiff, who was living in Arkansas and doing well in business, to come to Zebulon, telling plaintiff he would give him all his property after the death of Mrs. Green if he would live with Waller and help care for him during his last illness, and would “help Mrs. M. J. Green during her life, with the property he was leaving;” that Mrs. Green insisted on plaintiff’s accepting said offer; that after the death of Waller the plaintiff carried out his agreement to stay and assist Mrs. Green until her death; that after Waller’s death the plaintiff learned he had not made a will as agreed, and plaintiff then told Mrs. Green and his mother, Mrs. E. E. Harp (who but for the agreement made with plaintiff would have been the sole heirs at law of the deceased) that he intended seeing a lawyer as to the necessity of taking some action in order to be sure the property of said estate would be his after the death of Mrs. Green; that Mrs. Green stated this would not be necessary, and that plaintiff’s interest would be respected and the property kept intact and upon her death would go to him; that Mrs. Harp also told him that she did not
The defendant demurred on the grounds that the amendment set up a new and distinct cause of action, based on an alleged agreement with the intestate and Mrs. Green, or with Mrs. Green and Mrs. Harp; and that the amendment set out nothing which would relieve the bar of the statute of limitations. The court dismissed the action, holding that “whatever rights, if any, plaintiff may have had under the claimed agreement between him and defendant’s intestate, have been forfeited by his long delay in attempting to assert and establish same.” The plaintiff excepted to that judgment.
We are of the opinion that the learned trial judge erred in dismissing the action on the demurrer. According to the allegations of the petition, the plaintiff has a good cause of action if he establishes his allegations. The action is not barred by laches or the statute of limitations. It must be admitted, for the purposes of demurrer, that the plaintiff was induced by his uncle to remove from Arkansas and take up his residence with his uncle, upon the promise that he would provide for him by will by making him sole heir of his worldly possessions, subject only to a life-estate in his sister, Mrs. Green. If this promise was made and not fulfilled, it can be compelled by specific performance. Maddox v. Rowe, 23 Ga.
Judgment reversed.
