Hill v. Hill

149 Ga. 50 | Ga. | 1919

George, J.

(After stating the foregoing'facts.) “Contracts under which one of the contracting parties agrees with the other, for a valuable consideration, that he will make a will giving to the other property, either real or personal, have been sustained and enforced in America from the earliest times, and the validity of such contracts seems now to be beyond all doubt.” Banks v. Howard, 117 Ga. 94, 96 (48 S. E. 438), and authorities there cited. Likewise, the validity of contracts under which one of the contracting parties agrees with the other, for a valuable consideration, to make provision for the support of the other, have been sustained. The cases generally agree that the parol contract of a decedent to give to one a certain portion of his estate or to make provision for the support of such one in consideration of services rendered can only be enforced when the contract is clearly and satisfactorily established, and when its terms are definite and certain. Graham v. Graham, 10 Cas. (34 Pa.) 475; Pollock v. Ray, 4 Norris (85 Pa.) 428; Walls’ Appeal, 111 Pa. St. 460 (5 Atl. 220, 56 Am. R. 288). This rule has been applied in this State in like and similar cases. Pair v. Pair, 147 Ga. 754, 757 (95 S. E. 295). In the instant case the plaintiff seeks to have the alleged contract, resting wholly in parol, specifically performed, not by the administratrix of the estate of the deceased brother, but by his widow and sole heir at.law. If she can not have the contract specifically performed, the prayer is for damages. Civil Code, § 4639. Generally, a parol contract upon which specific performance is sought must be certain, definite, and clear, and so precise in ijts terms that neither party can reasonably misunderstand it. Miller v. Cotten, 5 Ga. 341; Harper v. Kellar, 110 Ga. 420, 423 (35 S. E. 667). The agreement in the instant case, as interpreted by the plaintiff in her petition, is: “if she would continue the [brother’s] home as it had been conducted prior to their mother’s death, that he [the brother] would make provisions sufficient for her to live on the remainder of her life.” If it be conceded that the character of the service to be rendered by the plaintiff, in the light of the allegations of her petition, is sufficiently definite and certain to meet the requirements of the decided cases, and if it also be conceded that the obligation of the brother to make provision for the maintenance of the plaintiff, while vague and indefinite, is yet sufficient to require him to maintain the plaintiff in the manner in which she was accustomed to live, nevertheless a 'material term of the contract, if not the most material term of the contract, is left in a state of entire uncertainty, that is, the length or term of service during which the plaintiff was to “continue the home as it had been conducted prior to their mother’s death.” How long was she to thus continue the home? One month, one year, until marriage, or during the life of her brother? Giving to the language of the petition a literal interpretation, it is entirely impossible to answer this important question. It is true that an implied meaning may be reasoned out that the plaintiff was to thus continue'the home for the brother so long as he lived. A resort to inference, which in this case is mere speculation as to the real meaning of the parties, is necessary, however, in order to arrive at this conclusion. At the time of the making of the alleged contract the brother was a bachelor with no prospect of marriage. When in fact he did marry is not stated in the petition. The mother died on April 8, 1915, and the brother died on October 12, 1916. Sometime after the death of the mother he had in fact married, because the suit is brought against his widow and sole heir at law. A breach of the contract is alleged. Let it be assumed that prior to his death and on the date of his marriage he breached the contract. "What would have been the rights of the plaintiff? Could she, in consideration of the full performance of the contract on her part to the date of its breach, have compelled specific performance of the contract according to its terms; that is, could she have compelled the brother to make “provisions sufficient for her to live on the remainder of her life?” While the contract fixes, as we have conceded, “a species of compensation,” and while the character of the service to be rendered by the plaintiff is sufficiently indicated to meet the requirements of the decided cases, we think the failure to specifically provide the length or continuance of the service which the plaintiff was to render precludes recovery by the plaintiff, except upon a quantum meruit for serv-. ices actually rendered. It is immaterial that she did perform the services until the death of her brother. That is a mere incident. The petition, so far as the allegations go, discloses that she was provided for so long as she rendered the services; and that being true, we are of the opinion that the general demurrer to the peti-' tion was properly sustained.

The contract considered in Wall’s Appeal, supra, is much like, the contract in the instant case: “Her [the appellant’s] aunt had been beating her, and her mother came in and she said she would taker her away; that she would not have her daughter treated in that way; that she had been made a slave of alb her life ever since she was there. Her uncle stepped up and said if she would let her stay that things would be different;, that she would have a good home as long as he lived, and at his death he would provide for her; that she should never want as long as she lived. ' Annie’s mother agreed to let her stay, and she stayed until she was married.” Mr. Justice Green, speaking for the court, said: “The literal meaning of these words leaves the contract upon which the claim is founded in a state ’ of entire uncertainty in its most material part, and that is as to the length or continuance of the service which the appellant was to render. How long was she to stay? Was it one month, one year, until her marriage, or during the life of the uncle? It is simply impossible to answer this question. A species of compensation is alleged to have been fixed, to wit, a good home as long as he lived, and a provision for her at his death, so that she would never want as long as she lived. Supposing this rather indefinite compensation to be sufficiently certain to abide the test or the decisions, what was to be done by the appellant in order to entitle her to it? Admittedly she was to render service, but how much service? Just here is the difficulty. The contract itself ought either to specify the amount of service to be rendered, or at least ought to afford the means of ascertaining or defining with some sort of precision the consideration which was to be given for the compensation claimed. If this is not done, the law has no standard by which to measure the performance by the claimant of her part of the contract. Where such is the case the alleged contract is hopelessly uncertain and cannot be enforced.” It is also to be noted-that the alleged contract does not state how, that is, in what manner the provision for the support and maintenance of the plaintiff was to be made. It is true that in the case of Best v. Garlapp, 69 Neb. 811 (96 N. W. 641, 99 N. W. 837, 5 Ann. Cas. 491), the court in effect held that a promise to leave property in return for support or service need not specify how title to the property is to become vested in the promisee, but it is sufficient if the contract clearly discloses an intention to give the property as compensation. While we deem it of some importance to specify, in a case of this character, whether the provision is to be made by deed, by will, or by the payment of money, nevertheless we rest our decision upon the conclusion already reached. We therefore find it unnecessary to discuss any other term or provision of the alleged contract, or to rule upon the other grounds of the demurrer urged in the court below.

Judgment affirmed.

All .the Justices concur.