53 S.E. 79 | S.C. | 1905
December 22, 1905. The opinion of the Court was delivered by This is an action for the partition of the lands of Miss Jane L. Gordon, who died in 1902, intestate, having destroyed her will a short time before her death. Mrs. Jane W. Crymes, a niece, and her children, who are defendants in the cause, deny the right to partition, claiming the entire property under the allegation that Jane L. Gordon and her sister, Mary Gordon, in pursuance of a binding agreement between them, executed mutual wills, each giving to the other her entire property, with a provision in the will of each testatrix that if her sister should die in the lifetime of the testatrix her property should go to Mrs. Crymes and her children; that the destruction of her will by Jane L. Gordon after the death of her sister was a violation of the contract of which Mrs. Crymes and her children were the beneficiaries, and that in enforcement of the contract the Court should decree the title to the property to be in them as if the will had not been destroyed. It is admitted by the other heirs of Jane L. Gordon that she and her sister Mary did execute contemporaneously wills of this purport, but the case turns on the issue whether these wills were executed in pursuance of a contract which bound the survivor to leave *158 her will so made in force at her death. The referee to whom the cause was submitted held there was no such contract, but the Circuit Judge came to the opposite conclusion.
We consider first the exceptions charging error in the admission and in the exclusion of evidence. It is not necessary to decide whether an agreement to make a will in the future devising real estate may be proved by parol. Here the wills were actually made, and the testatrix who undertook to revoke after the death of her sister had received the full benefit of the provisions of her will. The case is, therefore, stronger on this point than Turnipseed v. Sirrine,
The two wills were drawn by Col. J.N. Brown as attorney for both sisters, and appellants submit his testimony as to the contents of the letter of instruction, and the preparation of the wills should have been excluded as a privileged communication from client to attorney. Mrs. Crymes and her children claim against the heirs of Jane L. Gordon through a contract alleged to have been made by her with Mary Gordon. If Col. Brown was the confidential attorney of either of these ladies, he occupied that relation to both, and as between them or those claiming under them the communications made by them to him were not privileged, especially as these communications related to instructions for drawing their wills. Moffatt v. Hardin,
The testimony of Jane L. Gordon taken by the probate judge in proving in solemn form the will of Mary Gordon was admitted as the declaration against her right to revoke her will. We do not perceive on what grounds this evidence could be regarded incompetent, and none has been suggested in argument.
W.J. Milford testified on behalf of respondents that Jane L. Gordon told him she had destroyed her will. Upon *159
the cross-examination, in giving the remainder of the conversation, he testified: "She said she advised her sister that both could destroy their wills, but she would not do it. She (Miss Mary) said would let hers go as she had made it. It might save each other some trouble, but that Miss Jane might destroy here if she wanted, but if both destroyed it might cause some trouble." "The general rule upon this subject is that while it is competent to introduce declarations of a party against his interests, it is not competent to introduce his declarations in his own favor, unless they were made in, and constitute a part of, the conversation brought out by the other side; and this we understand to have been the ruling of the Circuit Judge, in which we think there was no error." Williams v. Mower,
The vital question is whether Jane L. Gordon made the will which she destroyed in pursuance of a contract with her sister Mary Gordon, the consideration being the execution of a will by Mary Gordon under which Jane L. Gordon received her property. If the wills of the sisters were made under a mutual contract, and Jane L. Gordon did not give notice to her sister of her intention to revoke so that she could revoke also, then the right of Mrs. Crymes as a beneficiary of the contract to take the property that would have passed to her under the will of the survivor is unquestioned.
A contract to make a certain disposition of property by will is as valid as any other contract. Citing 3 Pomeroy's Equity Jurisprudence, sec. 1244, Chief Justice Simpson, in discussing such contracts, says, in McKeegan v. O'Neill, *160
Such action may be far more reasonably attributed to the promptings of affection, and courts should not introduce the *161 mercenary element except upon clear affirmative proof that it was present within the understanding of both parties.
With this statement of the character and strength of the evidence which ought to be required in cases of this kind, we consider that which is here offered. Mary Gordon and Jane Gordon were maiden sisters, who lived together until the death of the former at the age of eighty-two. They were devoted to each other, and seem to have lived very much in common, though keeping their property separate. Mrs. Crymes was a favorite niece, who lived with them from infancy until her marriage at the age of eighteen, and after her marriage frequently visited at their home, their affection for her being apparently unchanged. In 1892, after consulting with each other, they came to the common determination to make wills, and communicated their intentions to the husband of Mrs. Crymes. As a result of consultation with him, they sent written instructions signed by both of them to Col. J.N. Brown, an attorney living in Anderson, who prepared the wills as directed, the language used in each being precisely the same, except for the transposition of the names. Each devised and bequeathed her entire property to the other without limitation, but provided that if her sister should die during the lifetime of the testatrix, her property should go to Mrs. Crymes and her children. The old ladies executed the wills at their home at the same time and in presence of the same witnesses, but neither of them said anything as to any agreement to make them or not to revoke them, or as to their terms or the motives and intentions by which they were actuated. Miss Mary Gordon died in 1894, and her sister Jane took her entire property under her will. Proof of this will in solemn form having been required, Miss Jane Gordon testified at the hearing, and as her evidence taken by the probate judge is relied on to support the alleged agreement, so much of it as is pertinent is quoted:
"Col. Brown, of Anderson, drew up the will of sister Mary W. Gordon. Sister sent instructions by Mr. Crymes to Col. Brown for making the wills in December. She gave *162 in all her property at the time and stated that she wanted me and Mrs. Crymes and her children to have all she had. She raised Mrs. Crymes from infancy, and that is why she gave the property to her. She took Mrs. Crymes when she was but three weeks old. Mr. Crymes sent the wills down in January, I think. We read the wills and laid them away and were a little careless about signing them. People don't generally talk about their wills, that is left till they are gone. Mary was in her 83d year when she died. She never made any other will. We consulted each other often about making our wills. We spoke of Judge Lyon as the proper person to draw our wills, but finally agreed to get Col. Brown to draw them. I think Mary's will was signed first. She read her will often before it was signed. She knew all about her property, and gave Mr. Milford special instructions about her business. She suggested the making of the wills. The instructions to Col. Brown for making the wills were written by her. * * * None of the relatives were consulted about making the wills." Mrs. Crymes testified that Miss Jane gave this additional testimony, which was not taken down by the probate judge: "Miss Jane L. Gordon testified that my aunts had agreed to make wills, and had so agreed for a long time, but did not carry the agreement out until after her brother's death. She said that my husband had confidence in Col. Brown, and that she was willing for him to do such work. She said that my aunt had said she wanted to leave her property to the widow and fatherless. This was not put down, but she said it." Miss Mary on her death-bed said to Mr. Milford that he had witnessed her will, and she wanted him to see it fully carried out. After the death of her sister, Miss Jane having become dissatisfied with the settlement made by the executor of her sister's will, burned her own.
This is the testimony upon which the Court is asked to find that the wills were made in pursuance of a binding contract. It will be observed the only direct evidence that the sisters had agreed to make wills is the statement attributed *163
by Mrs. Crymes to Miss Jane in her testimony before the probate judge, but this is not borne out by the written version of her evidence taken by the probate judge, and is not corroborated by any witness present at that hearing. Assuming, however, that this testimony is true and uncolored by any feeling of self-interest, it is very far from proving an admission by Miss Jane of a binding contract between the sisters to make wills, the one being the consideration for the other. The testimony establishes conclusively an almost common life, mutual affection for each other, common purposes, common affection for Mrs. Crymes, conference and agreement as to the wisdom of making wills, and the terms in which they should be made. But this flowing together of life, thought and action so far from importing that what they did for each other was the result of contract, a benefit received being regarded the consideration of another bestowed, connotes the mutual bestowal of benefits growing out of devotion and intimate association entirely independent of consideration and without thought of contract. Contract imports the standing apart and coming together as the result of an agreement for a consideration. The distinction is forcibly illustrated by the case of Gardner v.Gardner,
In Dufour v. Periera, 1 Dick., 419, the will itself contained words indicating an intention to make a binding contract. In Bruce v. Moon,
But there are some facts which go very far towards disproving any contract. Not only was there no intimation from either of the sisters that they so understood it in the lifetime of Miss Mary, but the terms of the wills are very significant. They were prepared with great care and after much consideration. The fact that there was an absolute devise from each sister to the other without limitation, was strong evidence that there was no intention to limit the power of alienation. When an intention is reduced to writing either in the form of a will or a contract, there is always a strong implication of fact that the whole intention has been expressed, and an implication still stronger that there is no agreement or intention contrary to that expressed.
The evidence is far from clear and convincing that Jane L. Gordon made an intentional offer to make a will as a consideration for a will to be made by her sister, or that her sister intentionally accepted such an offer; or that Jane L. *165 Gordon made an absolute representation that she would make a will in order to induce her sister to make one of like import in her favor. The right to dispose of property by will would be seriously jeopardized if it were held to be surrendered upon such meagre proof as is here offered.
A petition has been filed very recently in this Court by S.L. Miller and others, who claim land involved in this litigation by title paramount to Mary Gordon and Jane Gordon. This Court has no power to adjudge their rights at this stage of the litigation, but this judgment is without prejudice to any proceedings they may be advised to institute in the Circuit Court.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the cause be remanded for further proceedings consistent with this opinion.
MR. JUSTICE GARY. I cannot concur in the conclusion announced in the opinion of Mr. Justice Woods, as I think the judgment of the Circuit Court should be affirmed for the reasons therein stated.