148 Ga. 774 | Ga. | 1919
1. The plaintiff in error submitted a large number of written requests to charge, which the court refused to give, and error is assigned upon the refusal to give in charge these requests. Among them was the following: “It is not every parol contract which the court will specifically enforce. It will never enforce any parol contract for the sale of land or the making of a will or the testamentary disposition of property, unless the party who is seeking such performance will be defrauded if the contract is not enforced, even if all other elements are shown to exist which would entitle a party to such relief.” The court did not err in refusing to give this charge. This charge is not in harmony with the doctrine laid down in other cases decided by this court, that a contract to make a will will be
2. Another written request to charge, which the court refused to give, was as follows: “The court instructs you, that, since the law has provided what disposition shall be made of the estate of one who dies, the court favors the disposition fixed by the law, and will not, except when a strict compliance is had, permit it to be diverted from the channel so prescribed by the law. The law is very strict in requiring that its provisions for the proper disposition of the estate of the dead shall be observed, and the safety of the estate of every one depends upon their observance. So long as one lives, he is presumed to be able to look after his estate; when he is dead, the law steps in and undertakes to care for it and see that it is legally and properly disposed of. It will see it reaches his heirs at law, or go to his legatees under his last will and testament. The law has thrown around the estates of those who die every safeguard to protect it. It is in the faith of' this fact we all labor and toil to accumulate property, feeling that when we die our estates will be safe. It is the duty of the court and jury to exercise great care and extreme caution in the effort to see that the estate of one who is dead shall not be diverted from the channels and removed from the safeguards of law. You see this suit is an effort to take this estate out of the channels prescribed by the law, and that by a parol contract. While such an effort, under the law, may succeed, it can do so only when, under the evidence, which is so strong and convincing and satisfactory that the jury to a reasonable moral certainty are convinced of its truth, and not to enforce it would result in a fraud on the plaintiff, because it is not practical to make her whole by awarding in money the value of her performance or part performance. It is a very serious proposition, after one dies, for an outsider, one who under the law. would have no. rights or interest in the dead man’s estate, to set up a parol agreement, had with the man who is now dead and unable to speak, whereby not a part of his estate, but his whole estate, belongs to her, and not to those upon whom the law cast it. You must realize, gentlemen of the jury, such an effort
3. Requests to charge were also made in writing as follows: (5) Here the law is very strict. It does not look with favor on such a contract, and therefore it requires the very strictest proof to establish such a contract, proof that is convincing and so strong as to convince you to a reasonable moral certainty that it was made, as alleged. (6) Not only must such be the character of the proof, but it must be accurate and definite and certain. It must establish the contract which is alleged. That is, the evidence must establish substantially the exact terms and conditions, every detail as it is laid in the declaration or petition; and unless you are satisfied to a reasonable moral certainty that the evidence of this character the court has referred to, that L. A. Brown, in his lifetime, made such a contract, then that would end your investigation and you should find in favor of the defendant. (8) Then, further, that the plaintiff fwas to cook for her (his mother) and him and nurse him if he should become sick, make his beds or
4. The court was also requested in writing to charge as follows: “That he would compensate her for such services (that is. the services which the alleged contract set out) by executing a will
5. The other requests to charge, so far as they were legal and pertinent, were sufficiently covered by the charge as given by the court, and other requests besides those which we have specifically referred to were properly refused, both in view of what we have said above, and for the further reason that they would have tended, had they been given to the jury, to lead them to believe that the court disapproved of contracts like that which it was here attempted to set up, and viewed the same with great suspicion. It is not improper-here to. say that it may be true that there is always great danger in the law. allowing such contracts to be specifically enforced where the contracts rest solely in parol and parol evidence alone is adduced to sustain them. And it may be forcibly argued in such instances that there is great inducement to perjury, whereby the property of a man, after his death, will be diverted from the course which the law has prescribed for it. But the validity of these contracts has been recognized by the courts for a long time, and whether they should be allowed to stand and should be enforced is not now a question for this court, but for the legislature. The lawmaking body knows what the courts have held on this subject, the doctrine that has been repeatedly laid down; and if it is dangerous to the public welfare and is not a salutary doctrine, it is within the province of the lawmaking body of the State to change it and lay down a different rule.
6. Certain charges of the court are excepted to upon the ground that they tend to convey to the jury a mistaken and confused idea as to what the real contract was, and the real agreement upon the part of the decedent as to the property that he would bequeath in his will to the petitioner. It appears from a reading of the charge upon this subject that this question was fully and fairly submitted to the jury. The jury must have understood from the instructions, and no doubt did understand, that if they -believed that it was established with the requisite degree of certainty and definiteness by the evidence that the decedent,
7. The seventh ground of the motion for a new trial is as follows: “The'husband of the plaintiff, IJrma Rivers, being sworn as a witness for the plaintiff, testified in regard to the alleged contract as follows: By counsel for plaintiff. Q. ‘How came you to move to Mr. Brown’s house ?’ A. ‘We were living on his mother’s place. I was farming. He came down there to get me to help him cut some stock; he said he wanted to build more rooms to the house; he made a contract with Clyde to move to his house. He said he told her if she would move to his house and take care of his mother her lifetime, take care of him his lifetime, he would make his will and will her what he had and all he would get before he died. My wife was there at home when he told me that; she heard it. I told her it would be right smart on her, but, if she thought she could do the work and wait on him, we would move there. He was present. We moved there after we got the crop gathered.’ On cross-examination, in answer to the questions propounded by counsel for defendant, as follows: Q. ‘Tell the jury just what he said the contract was.’ A. ‘Well, he came down to my house in August to get me to help him to cut some stock; he wanted to build some to the house. He said he had made a contract with Clyde to move to his house. He said if she would move to his house and take care of his mother her lifetime, and stay on and take care of him his lifetime, that he would make his will" and will her all he had got and all he would get before he died.’ Q. ‘That was all, he stated, of the contract that he made; that was all of it, wasn’t it?’ A. ‘That is all I remember he said.’ Q. ‘You made an affidavit in this case didn’t you, written by your lawyers?’ A. ‘Yes, sir.’ Q. ‘Well I will read you the affidavit as quoted in the bill of exceptions: “In the month of August, 1910, L. A. Brown came to the house of affiant, and in the presence of affiant’s wife stated to affiant that
The court did not err in refusing to exclude the testimony of this witness on the grounds urged. He was not a party to the suit and was not a party to the contract sued upon. Intermingled with his testimony regarding the contract sued upon, and connected with that contract, is evidence of what might be called a collateral undertaking upon the part of the husband of the petitioner. This did not render him incompetent as a witness.
8. The testimony of the physician attendant upon the decedent in his last illness, tending to show that he then desired to make
9. Under the charge of the court the jury returned a verdict in favor of the petitioner, the verdict being in the following language: "We, the jury, find for the plaintiff on all the issues in this ease.” The court thereupon rendered its judgment decreeing that the plaintiff recover from the defendant all the estate of L. A. Brown which had come into the hands of the defendant, Mrs. Landrum, as the administratrix of the estate of the decedent, or which might come into her hands as such administratrix, less such costs as might be taxed in the case. The court further decreed that title to the realty constituting a part of the estate be in the plaintiff as against the defendant and the estate of the decedent. It was further decreed, that the personal property belonging to the estate of the decedent which had not been sold be turned over to the plaintiff; that the defendant make a deed conveying the realty described in the decree to the plaintiff, this being the realty which constituted a part of the estate of the decedent; that the proceeds of the sale of any of the property of the estate, and any other money that might come into the hands of the defendant as a part of the estate of the decedent, be delivered to the clerk of the superior court of Campbell county; that if the defendant had paid any debt of the decedent, which was a just claim against the estate, she deliver to. the clerk of the court the receipts, canceled notes, or other evidence of the payment of any money on account of such estate, and that if these claims were just, they be taken and held in lieu of any money which she would have to pay over had those claims not been paid. It was further decreed, that the administratrix should keep and retain nothing on account of any services she had rendered, or should thereafter render, as administratrix of the estate, or for any money she had paid or agreed to pay out to any person, as administratrix or otherwise, except such money as had' been paid out on obligations due by L. A. Brown at the date of his death; and that she make a statement .to the court, verifying the same by oath, showing just what money she had received, and from what source, and how it had been distributed, and to whom, and paying over to the clerk of the court the balance in her hands. The decree further makes provision for the
Judgment affirmed.