Stone v. Burgeson , 215 Ala. 23 ( 1926 )

The rights of the parties to an agreement such as the one set out in this bill of complaint, and the mode and extent of its enforcement by a court of law or equity, have been fully discussed and determined by this court. Bolman v. Overall,80 Ala. 451, 455, 2 So. 624, 60 Am. Rep. 107; Manning v. Pippen,86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46; Walker v. Yarbrough, 200 Ala. 458, 76 So. 390; Mayfield v. Cook, 201 Ala. 187,77 So. 713; Poe v. Kemp, 206 Ala. 228, 89 So. 716; Taylor v. Cathey, 211 Ala. 589, 100 So. 834.

These cases hold that a valid contract by a promisor to dispose of his property by will to a particular person may be enforced in the courts, after his decease, by an action for its breach against the personal representative, or, in a proper case, by bill in the nature of specific performance against his heirs, devisees, or personal representatives.

These cases also hold that, in case of the breach of such a contract during his lifetime by the party who agreed to make the will, the remedy is not in equity by bill for specific performance, or for relief in the nature of specific performance, but only by an action at law for damages. Poe v. Kemp, supra; Bolman v. Overall, supra; Manning v. Pippen, supra. Indeed, in the two last cited cases the court was apparently of the opinion that there could be no actionable breach of an agreement to make a will until after the death of the promisor without performance.

But, however that may be, this bill, filed against the living promisor, is without equity, and the demurrer was properly sustained. The want of equity in the primary purpose of the bill is not supplied by the mere allegation that the items of account between the parties are complicated, so as to authorize a retention of the bill as one for an accounting. Pollak v. Claflin, 138 Ala. 644, 35 So. 645, 647; Knotts v. Tarver,8 Ala. 743; Beggs v. Edison, etc., Co., 96 Ala. 295, 11 So. 381, 38 Am. St. Rep. 94; State v. Bradshaw, 60 Ala. 240. The specific allegations of the bill contradict the theory of a complicated account and show that nothing more is required in the statement of the account than the simple arithmetical processes of addition and subtraction.

The original bill having been amended without effect, the amended bill was properly dismissed after demurrer sustained for want of equity.

Affirmed.

All the Justices concur.