Stuckey v. Truett , 124 S.C. 122 ( 1923 )

April 12, 1923. The opinion of the Court was delivered by For the reasons therein stated the decree of his Honor the Circuit Judge is affirmed.

MESSRS. CHIEF JUSTICES COTHRAN and MARION concur.

MESSRS. JUSTICES WATTS and FRASER dissent.

MR. JUSTICE COTHRAN: I concur in the opinion of the Chief Justice affirming the decree of the Circuit Judge upon the following grounds:

The evidence, with all the surrounding circumstances, demonstrating the propriety, reasonableness and probability of the alleged agreement, satisfies me that the Circuit Judge was right in finding that the will was executed upon the promise of the devisee to devise the property to the boys who had been raised by Mrs. Truett and were the objects of her solicitude and affection. In 1 Tiffany, Real Property, § 94, it is said:

"If one procures a devise by promising the testator to give the beneficial interests in the whole or a part of the property to a third person, he will be regarded as holding in trust for such person" — citing Dowd v. Tucker,41 Conn., 197. Olliffe v. Wells, 130 Mass. 221. Gilpatrick v. Glidden,81 Me., 137; 16 Atl., 464; 2 L.R.A. 662; 10 Am. St. Rep., 245. Ragsdale v. Ragsdale, 68 Miss., 92; 8 South., 315; 11 L.R.A., 316; 24 Am. St. Rep., 256. O'Hara v. Dudley,95 N Y, 403; 47 Am. Rep., 53. Hoge v. Hoge, 1 Watts (Pa.), 163; 26 Am. Dec., 52.

To which may be added: Whitehouse v. Bolster, 95 M. E., 458; 50 Atl., 240. Smillin v. Wharton, 73 Nef., 667; 103 N.W., 288; 106 N.W., 577; 112 N.W., 622; 113 N.W., 267. Fairchild v. Edson, 154 N.Y., 199; 48 N.E., 541; 61 Am. St. Rep., 609. People v. Schafer, 266 Ill., 334;107 N.E., 617. Gemmel v. Fletcher, 76 Kan., 577; 92 P. 713; 93 Pac; 339. Taylor v. Fox 162 Ky., 804; 173 S.W. 154.Benbrook v. Yancy, 96 Miss., 536; 51 South., 461. Mead v.Robertson, 131 Mo. App., 185; 110 S.W. 1095. Heinisch v. Pennington, 73 N.J., Eq., 456; 68 Atl., 233. Powell v.Yearance, 73 N.J. Eq., 117; 67 Atl., 892. Van Houten v.Stevenson, 74 N.J. Eq., 1; 77 Atl., 612. Tyler v. Stitt,132 Wis. 656; 112 N.W., 1091; 12 L.R.A. (N.S.), 1087; 122 Am. St. Rep., 1012. Hollis v. Hollis, 254 Pa., 90; 98, Atl., 789. Barron v. Stuart, 136 Ark. 481; 207 S.W. 22.Brazil v. Silva, 181 Cal., 490; 185 P. 174.

MR. JUSTICE FRASER: I cannot concur with the Chief Justice in affirming the Circuit decree. The undisputed facts are:

Mrs. Eliza C. Truett was married rather late in life to Jacob T. Truett. She had a tract of land upon which there was a mortgage. Very soon after the marriage she and her husband moved on the land and moved into a small tenant house. By hard work and thrifty habits they farmed the land, paid off the mortgage, and built a dwelling house and other houses necessary to a good farm. The plaintiffs in this case were nephews of Mrs. Truett, and lived with her for several years, when they were boys of tender years. The relationship was close and affectionate. Mrs. Truett frequently expressed her determination to give her property to her nephews, the plaintiffs after her death. There were several partially written wills, written by Mrs. Truett, in which she gave a life estate to her husband, Jacob T. Truett, but stopped there and left them incomplete as to the remainder. These partial wills were not signed. It is alleged that Mr. Truett took one of these wills to a lawyer, and brought back a will giving to Mr. Truett a fee in the land, with no provision for a remainder. This will Mrs. Truett kept for some time, but finally executed it. The plaintiffs claim that Mrs. Truett executed it under an agreement with Mr. Truett that he would give the land to her nephews. Mr. Truett, however, made a will giving the property to his own kin, in violation, the plaintiffs claim, of his parol agreement. This suit is brought to enforce that parol agreement.

This action is hard to classify under legal remedies. It cannot be a suit to enforce a contract for mutual wills, as no witness testifies that Mr. Truett agreed to give the property to the plaintiffs by will. The same is true as to a deed. There is no evidence of fraud. The testimony shows that Mrs. Truett knew that the will gave to her husband a fee, and made no provision for her nephews, when she signed it. There was no undue haste. Mrs. Truett kept the will unsigned for some time. It cannot be said that Mrs. Truett executed the will in reliance on the promise of her husband, because she said time and again that she was afraid that Mr. Truett would not give the property as he had agreed to do. There is no evidence of undue influence. Mrs. Truett was not weakminded. From the testimony of some of the plaintiffs' witnesses, it would appear that Mrs. Truett was the controlling spirit of their joint labors.

The simple question is: Will the Courts enforce a parol agreement to convey land, without any circumstances upon which to base an estoppel? To illustrate: A man has two nephews; the one is dutiful, the other undutiful. He loves the one and hates the other. He has said innumerable times that he intends to make his will giving all to the dutiful nephew and disinheriting the undutiful nephew, and yet he dies intestate. This case demands that the Court shall make a will for Mrs. Truett, and it has no power to do it. Mrs. Truett was under no legal or moral obligation to her nephews, the obligation of the nephews to Mrs. Truett was very great. Doubtless Mrs. Truett's love for the plaintiffs was very great, as men and women love those for whom they labor. That kind of love is a free gift. While Mr. Truett had no legal right (except the law of wills) to that property, he did not have a moral right to have in fee at least a part of the property upon which he had spent years of labor. Strike out Mrs. Truett's will, and the law would have given him half in fee. The plaintiffs claim it all. This claim being based solely on parol, should not, I think, be allowed.

For these reasons I dissent.

MR. JUSTICE WATTS concurs herewith in dissent.