McCraw v. Llewellyn , 256 N.C. 213 ( 1962 )

123 S.E.2d 575 (1962) 256 N.C. 213

Wayne McCRAW
v.
H. H. LLEWELLYN, Administrator of the Estate of Minnie Lynch Higgins.

No. 671.

Supreme Court of North Carolina.

January 12, 1962.

J. C. Barefoot, Jr., and Benjamin D. Haines, Goldsboro, for plaintiff appellee.

Woltz & Faw, Mount Airy, for defendant appellant.

RODMAN, Justice.

Plaintiff does not claim as a beneficiary under the will. He recognizes Minnie's marriage subsequent to 30 December 1958 constituted a revocation of her will. G.S. § 31-5.3; In re Will of Tenner, 248 N.C. 72, 102 S.E.2d 391. He predicates his right to recover for breach of an express contract.

Defendant's denial of the special contract placed the burden of proving the asserted contract on plaintiff. If he offered any evidence sufficient to support his allegation and to require compliance with the contract, he was entitled to have that issue submitted to the jury. If he failed to offer such evidence, but offered evidence of services rendered from which a jury could infer they were rendered and received upon the expectation that compensation would be paid because not gratuitously rendered, plaintiff would be entitled to recover the fair value of the services rendered. As said by Stacy, C. J., in Ray v. Robinson, 216 N.C. 430, 5 S.E.2d 127: "It is established by a number of decisions that in the absence of some express or implied gratuity, usually arising out of family relationship or mutual interdependence, services rendered by one person to or for another, which are knowingly and voluntarily received, are presumed to be given and accepted in expectation of being paid for, and the law will imply a promise to pay what they are reasonably worth." But this promise which the law implies is not expanded to imply a promise to pay at death and by will. If the time for payment is to be extended to the death of the recipient of the services, there must be agreement to that effect. Hodge v. Perry, 255 N.C. 695, 122 S.E.2d 677; Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760; Edwards v. Matthews, 196 N.C. 39, 144 S.E. 300; Brown v. Williams, 196 N.C. 247, 145 S.E. 233; Miller v. Lash, 85 N.C. 51.

Plaintiff's parol evidence amply supports his allegation of the close and affectionate relationship existing between him and Minnie. Several witnesses testified to declarations by Minnie of her affectionate regard for plaintiff and her desire that plaintiff should, upon her death, have all of her property. No witness testified to a declaration by Minnie that she had by contract obligated herself to devise and bequeath her property to plaintiff. There was evidence that plaintiff, who resided in Greensboro, went to Surry County when Minnie's first husband died and assisted her in making funeral arrangements, that he visited her on several subsequent occasions, and rendered her other services. Whether plaintiff is entitled to recover on an implied contract to pay for the services rendered (not gratuitously furnished) need not now be determined. Defendant, maintaining that plaintiff's sole remedy, if any he had, was on an implied contract, tendered issues determinative of questions arising on such a theory. The court declined to submit the issues so tendered. It submitted issues relating to a specific contract to devise. Defendant's exception to the issues submitted and to the refusal to submit the issues tendered and the assignments of error based on these exceptions present for determination the correctness of the theory of the trial adopted by the court.

Minnie's estate consisted of both real and personal property. A contract to dispose of such estate by will is a contract controlled by our statute of Frauds which provides: "All contracts to sell or convey any lands * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith * * *." G.S. § 22-2; Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524; Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R. 2d 1325. A denial of the alleged contract suffices to require compliance with the statute if plaintiff is to recover on the contract alleged. Humphrey v. Faison, supra; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331; Weant v. McCanless, 235 N.C. 384, 70 S.E.2d 196; Chason v. Marley, 224 N.C. 844, 32 S.E.2d 652; Embler v. Embler, 224 N.C. 811, 32 S.E.2d 619.

Minnie's will dated 30 December 1958, by Item One directs her executor to pay her debts, place a monument at her grave, and provide for the care of her cemetery lot. Items Two and Three read as follows:

"Item Two

"I will, devise and bequeath to Wayne McCraw all of my property of every sort, kind and description, both real and personal, consisting of everything of every nature, which is left over after carrying out the provisions of Item One.

"Item Three

"I hereby authorize and direct my executor hereinafter named to sell all of my property, both real and personal, in such manner, and at such prices and upon such terms as he may deem proper or do any act which in his opinion is for the best interest of estate and after carrying out the provisions in Item One distribute remainder to Wayne McCraw."

Item Four, the remaining item of the will, named defendant as executor with "authority to sell any property or do any act which in his opinion is for best interest of estate."

This will was deposited with plaintiff for safekeeping. There is evidence from which the jury could find that James Higgins knew of the will prior to his marriage to Minnie, and both before and subsequent to Minnie's death expressed his approval of the provisions of the will. He died prior to the institution of this action.

The crucial question then for decision is: Does the will dated 30 December 1958 suffice as a memorandum or note of a contract by Minnie to will her property to plaintiff? The answer, unless we depart from wellestablished legal principles, must be in the negative.

The statute of frauds deals with contracts to convey lands, not with rights to dispose of property by will as provided by G.S. § 31-1. "A contract is an agreement between two or more persons upon sufficient consideration to do or to refrain from doing a particular act." Belk's Dept. Store of New Bern v. George Washington Fire Ins. Co., 208 N.C. 267, 180 S.E. 63; Campbell v. Campbell, 234 N.C. 188, 66 S.E.2d 672; Bank of Varina v. Slaughter, 250 N.C. 355, 108 S.E.2d 594.

"``One of the essential elements of every contract is mutuality of agreement.' Croom v. Goldsboro Lumber Co., 182 N.C. 217, 108 S.E. 735, 737. And ``mutuality of promises means that promises to be enforceable, must each impose a legal liability upon the promisor. Each promise then becomes a consideration for the other.'" Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322; Smith v. Barnes, 236 N.C. 176, 72 S.E.2d 216; Brown v. Williams, supra; Dodds v. St. Louis Union Trust Co., 205 N.C. 153, 170 S.E. 652.

The mere exercise of the statutory right to dispose of one's property at death is not of itself evidence that the disposition directed is compelled by a contractual obligation.

The writing must show the promise or obligation which the complaining party seeks to enforce. Yeager v. Dobbins, 252 N.C. 824, 114 S.E.2d 820; Deaton v. Coble, 245 N.C. 190, 95 S.E.2d 569; Burriss v. Starr, 165 N.C. 657, 81 S.E. 929.

"An aggrieved party may recover for the breach of a contract, made upon sufficient consideration, that the promisor will make him the beneficiary of a bequest or devise in his will, but such a contract must be established by the mode of proof legally permissible in establishing other contracts." Halsey v. Snell, 214 N.C. 209, 198 S.E. 633.

"The agreement must adequately express the intent and obligation of the parties. Parol evidence cannot be received to supply anything which is wanting in the writing, to make it the agreement on which the parties rely." (Emphasis added.) Chason v. Marley, supra; Keith v. Bailey, 185 N.C. 262, 116 S.E. 729; Hathaway v. Jones, 48 Ohio App. 447, 194 N.E. 37; Holsz v. Stephen, 362 Ill. 527, 200 N.E. 601, 106 A.L.R. 737; White v. McKnight, 146 S.C. 59, 143 S.E. 552, 59 A.L.R. 1297; Brought v. Howard, 30 Ariz. 522, 249 P. 76, 48 A.L.R. 1347; 37 C.J.S. Frauds, Statute of § 194, p. 680; 49 Am.Jur. 636.

In Luders v. Security Trust & Savings Bank, 121 Cal. App. 408, 9 P.2d 271, the will recited the property was willed to appellant "for her faithful service to me." There, as here, the will was subsequently revoked. The court, in answering the argument that the quoted language sufficed to meet the requirement of the statute of frauds, said: "A potential factor in furtherance of fraud would be engendered were a will containing a simple bequest permitted to operate as evidence of a binding contract to make such a bequest."

Plaintiff has failed to establish an enforceable contract to devise as alleged in the complaint. The erroneous theory adhered to over defendant's objection requires a new trial. The parties may, at that time, present such evidence as they may have relating to an implied promise to pay for services rendered.

New trial.