Wells v. Brooks , 199 Miss. 327 ( 1946 )

PARTIALLY DISSENTING OPINION. Both of the decrees rendered by the court below should be affirmed. As to the decree refusing to hold that Mrs. Wells was entitled to the property here involved for the reason that Miss Fowler had agreed for a consideration to devise it to her, the court below held, and the evidence clearly discloses, that Miss Fowler made no such agreement, either written or verbal; consequently, the discussion here of the effect of a verbal agreement to devise property is unnecessary, as is also the comment on the case of Anding v. Davis, 38 Miss. 574, 77 Am Dec. 658, and, therefore, I do not join therein.

An implied contract by Miss Fowler to pay Herman Wells for the services he claims to have rendered her must rest, if at all, on the excerpt from the evidence of the wife, Mrs. Wells, set forth in the controlling opinion. A near neighbor and friend of Miss Fowler testified, without objection, that he heard her say that Wells "was doing it (rendering the services he did for her) through free gratis." And on the whole evidence, which was voluminous, the Chancellor was justified in believing that Miss Fowler did not make the statement attributed to her by Mrs. Wells; and it cannot be said that he was manifestly wrong in disregarding it.

Alexander, J., concurs in the foregoing dissent.