York v. York , 270 P.2d 656 ( 1953 )

: BLACKBIRD, Justice.

Plaintiff in error, hereinafter referred to as plaintiff, is one of the nephews of W. Lee York, who died intestate and a bachelor, on January 5, 1952, while a resident of McClain County, seized and possessed of a 40 acre farm in said County. Sometime after another of the decedent’s nephews, Tom York, had been appointed administrator of said decedent’s estate, plaintiff commenced this action against said administrator and the decedent’s other nephews and nieces and statutory heirs, as defendants, to compel specific performance of an oral contract he allegedly had with the deceased to devise him the farm, and to quiet his alleged title thereto by reason thereof, against said defendants. According to plaintiff’s petition he had, prior to his marriage, resided on the farm with the deceased who had a hernia, by reason of which he was physically unable to properly cultivate the farm and cafe for himself.

The oral contract was allegedly entered into between plaintiff and his uncle when, in 1932, plaintiff decided to marry and establish a home of his own, and upon his communication of such information to his said uncle, the latter proposed that after his marriage, plaintiff and his wife reside with him, and plaintiff continue to cultivate and manage the farm, and'in addition, with the help of his wife, keep house, cook, wash and do other things necessary to the care, comfort and well-being of the said Lee York, in consideration for which York “would take the necessary steps and make the necessary arrangements to insure that * * * plaintiff would become the sole owner of the farm upon York’s death.” Plaintiff further alleged that during the years remaining in his uncle’s life, after said oral agreement was entered into, he and his wife fully carried out their part of said agreement, including the making of improvements on the farm, but that since his uncle’s death they had been unable to discover any evidence that he had ever made a will.

Defendants answered plaintiff’s petition with a general denial and a special plea that if any such oral agreement had been entered into as alleged in plaintiff’s petition, it was invalid under the Statute of Frauds, because no note or memorandum of it, in writing, was ever made or was ever subscribed to by Lee York.

At the trial of the cause to the court, without a jury, because of a serious im- ■ pediment in plaintiff’s speech preventing him from testifying articulately, it was stipulated that if able to testify, he would relate among others, the following facts: That prior to his marriage in 1932, he “spent considerable time in Lee York’s home, that subsequent to his marriage plaintiff and his wife made their home on the York farm until about September, 1942; that in the latter month, plaintiff and his family, accompanied by York, moved from that farm to the farm of plaintiff’s wife’s father, Mr. Hofstetler, (after the latter’s wife’s death), and they all continued to reside there until January, 1945, when they moved to the Fry farm, where they continued to reside until about September, 1947, when plaintiff and his family and York moved back to York’s farm, where they resided until the latter’s death in January, 1952; that during said entire period of time, from 1932 on, with the exception of two years”, plaintiff farmed the York place, “looked out for its upkeep and maintenance and paid to * * * Lee York, the customary farm rent in crop shares”; that plaintiff, at his own expense, set out fruit trees and shrubbery and maintained fences and made other necessary repairs to the buildings on the farm at his own expense.

Plaintiff’s only other witnesses were his nineteen-year-old married daughter, Mrs. Helen Myers, his fifteen-year-old daughter, Gay, his wife’s half-brother and half-sister, Buster Porter and Mrs. Irene Riley, and one of the deceased’s nephews, Frank York. Four other nephews, the administrator Tom York, W. C. Mankins, and Olen Roberts, and plaintiff’s brother, Henry York, testified for the defendants.

At the close of the evidence, the trial judge took the cause under advisement, and thereafter, in accord with plaintiff’s previous request, promulgated and filed certain findings of fact and conclusions of law, in accord with which he later rendered judgment for the defendants.

In his present appeal from said judgment, the only decisive one of the trial court’s findings plaintiff challenges is the 7th one, wherein said court found the evidence insufficient to establish the contract upon which the action was based, and thereupon concluded that the specific performance plaintiff sought was not warranted.

The digest of the authorities pertaining to the granting of specific performance of “decedent’s agreement to devise, bequeath, or leave property as compensation for services” contained in the exhaustive annotations at 69 A.L.R. 14, and 106 A.L.R. 742, reveals that such relief has, in the majority of jurisdictions, been granted where the contract sued upon has been sufficiently proved and the conditions precedent for the granting of this form of equitable remedy are present. 106 A.L.R. 747. However, it is the almost universal rule, as held in Robinson v. Haynes, 147 Okl. 95, 294 P. 803, 806, that:

“Before a court of equity will specifically enforce an oral contract to devise property, the proof of the contract must be so cogent, clear and forcible as to leave no reasonable doubt as to its terms and character.” (Emphasis ours.)

In accord, see Kinnett v. Goodno, 170 Okl. 620, 41 P.2d 824, and Paull v. Earlywine, 195 Okl. 486, 159 P.2d 556. The majority of courts that have expressed themselves on the subject are agreed that such an action, being an effort by a contract resting in parol, to distribute the estate of a deceased person in a different way from that provided by law, should be looked upon skeptically and the evidence to establish it “weighed in the most scrupulous manner.” 106 A.L.R. 748, and authorities there cited. Thus, it is said that he who claims under such an alleged oral agreement must show a clear and mutual understanding and a positive agreement of both parties to the terms of the contract, and if the language employed by the parties leaves their intention in doubt, or if there is uncertainty in regard to what was intended, a court of equity will not undertake to decree specific performance. In commenting upon the character of proof required in such cases, the court, in Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 877, 881, demonstrated that such a contract cannot be established by testimony as to conversations either “too ancient” on the one hand or “too loose or casual” on the other; that proof of the contract must be such as to leave no reasonable doubt in the mind of the chancellor that the contract claimed was in fact made. It must be recognized, however, that what is necessary to attain such a 'high degree of definiteness and certainty must depend to some extent upon the subject matter of the contract, the purpose for which it was entered into, the situation in relation to the parties, and the circumstances under which it was made. In all such agreements involving realty, where there is no note or memorandum of the agreement in writing, performance by the parties seeking its specific performance will take the agreement out of the Statute of Frauds, 15 O.S.1951 § 136, but such performance must be clearly referable to the contract and must consist of services whose character is exceptional and extraordinary and whose value cannot be fairly estimated by any pecuniary standard, or it must appear that the promisee’s “whole course of life was changed” by his performance, 106 A.L.R. 756-761, both inclusive. The relaxing of the rule established by the Statute of Frauds, by holding that a.part performance removes the bar of the statute, is based upon the ground that it is a fraud for the promisee to insist on the absence of a written instrument when he has permitted the contract to be partly executed. If the promisee, with the knowledge and consent (either tacit or express) of the promisor, does acts pursuant to and in obvious reliance upon a verbal agreement which has so changed the position of the parties as to render a restoration of their former condition impracticable, it is a virtual fraud on the part of the promisor’s heirs or estate to set up the Statute of Frauds as a defense and thus rob the promisee of the benefits of the contract after he has performed thereunder, and his chance for receiving any reward or pay for his services in a suit at law, may be more or less remote or even non-existent. 69 A.L.R. 121, 122, 124, and authorities cited under Notes 73 and 77. The acts of the parties and the equities arising therefrom are the real basis of equitable relief and for their acts to be “referable” to their contract, they must point clearly and exclusively to the existence of that particular contract or one of the same general tenor. See Annotations, supra, and 69 A.L.R. 12S, 129, Notes 78 and 79. Thus, conduct which can be reasonably explained without reference to such an oral contract does not usually constitute the “performance” required. “What is done must itself supply the key to what is promised.” 69 A.L.R. 128. Thus, in Burns v. McCormick, 233 N.Y. 230, 135 N.E: 273, 274, it was said:

“Inadequacy of legal remedies, without more, does not dispense with the requirements that acts, and not words, shall supply the framework of the promise. * * * (That requirement) is ‘intended to prevent a recurrence of the mischief’ which the statute would suppress. * * * The peril of perjury and error is latent in the spoken promise. Such, at least, is the warning of the statute * * *. Equity, in assuming what is in substance a dispensing power, does not treat the statute as 'irrelevant, nor ignore the warning altogether. It declines to act on words, though the legal remedy is imperfect, unless the words are confirmed and illuminated by deeds.”

This Court in Pancoast, Adm’r v. Eldridge, 134 Okl. 247, 273 P. 255, referring to the use of testimony in cases like the present, explained one good reason why oral contracts to devise property are viewed with suspicion, and the clearest and most convincing evidence is required in such cases: In accord with the weight of authority, we think it altogether fitting and proper that when an oral agreement to devise property is sued upon and the promisee relies on his performance of personal services to render the Statute of Frauds inapplicable, it should appear with reasonable certainty that the services would not have been performed but for the oral agreement.

This brings us to the task of weighing the evidence in the present case to see if the trial court’s finding and conclusion in question is sustainable on the basis of the above principles. If so, his judgment must stand even though there might be good and sufficient ground for adopting a different view. See Stow v. Bruce, 178 Okl. 127, 61 P.2d 1043.

At the outset, we note that plaintiff made no effort to prove the allegations of his petition to the effect that the alleged oral contract between him and his Uncle Lee was entered into before plaintiff married. The stipulation as to what plaintiff would have testified to contains no reference to the contract or the occasion on which it was allegedly entered into, but plaintiff’s daughters, both of whom were very young at that time, corroborated in a general way by Buster Porter and Frank York, testified to what transpired one morning in 1947, after plaintiff’s marriage was several years old and the family had made its second move since living on the York farm, and was then living on the Fry farm. On that occasion, according to these witnesses, Lee York, about breakfast time, proposed that the family move back to his farm and “take care of him”, in consideration for which the farm would be plaintiff’s at his death. There is no question but that the family soon made such a move, but the evidence is also undisputed that after relocating on the uncle’s farm, plaintiff paid him the regular crop rent of a tenant and there is serious question, on the basis of the evidence, as to whether the relationship between plaintiff and his uncle was otherwise any different from what it had previously been. Of course, it was shown that Mr. York ate some of his meals with the family, but it also appears that he had also done that even while they were living on the Fry farm, which was near his farm. It also appears that York had often slept at plaintiff’s house on the Fry farm and it was indicated that he roomed and boarded with plaintiff’s family .continuously for the first six months after they moved back to his farm, but thereafter had a small house built there for himself, making it unnecessary thereafter for them to all live in the same dwelling. It is further indicated that he thereafter continued to take most of his meals with plaintiff’s family, but that he also purchased groceries. Also, it was not established that Mr. York was so incapacitated by his hernia that he could not manage the farm and look after his own personal needs. On the other hand it was unequivocally established only that he was not able to do the heavier work on the farm. In the matter of paying taxes and bills and looking after other business matters entailing no heavy manual labor, it appears that he was probably more capable than plaintiff, and that plaintiff was little more than a combination tenant, confidant, errand boy and/or chauffeur of 'his uncle. Undoubtedly each did favors for the other that were reciprocated, not because of any feeling of contractual obligation, but from motives of mutual love, affection and helpfulness. Typical of the evidence as a whole and the varying inferences to be drawn therefrom is the testimony concerning the doing of the intestate’s laundry. Some of the testimony represented that it was all done by plaintiff’s wife, but other testimony indicated that, at least part of the time, it was done in a commercial or help-yourself laundry and paid for by the intestate. Nor is the testimony concerning the making of improvements on the York farm such that it can be said to have any decisive significance or be different from what is sometimes done by ambitious and energetic tenants. Looking at the personal services furnished his uncle by the plaintiff and his wife, against the background of their previous and continued relationship and association, it is difficult if. not impossible to find anything the latter did for the uncle after he made, the promise attributed to him that they would not have done otherwise, and had it not been for such a promise. The facts concerning this relationship strongly induce the belief, often referred to as a “presumption” in the case of close relatives, that such services were furnished gratuitously and more because of mutual love, affection, esteem, high regard, gratitude, and/or hope of some future but undetermined reward, than in performance of the claimed contract. In this connection see 69 A.L.R. 132 and, as to that subject, generally, see the Annotation on the Recovery For Services To Relative appearing in the Annotation beginning at 7 A.L.R.2d 8. Without further lengthening this opinion to detail the evidence, we need only say that we have examined it thoroughly and upon consideration of it as a whole, together with the inferences to be reasonably drawn therefrom, it is such that the trial court’s finding and conclusion cannot be held to be contrary to it or to the law as applicable thereto.

Accordingly .we conclude and hold that the trial court’s judgment denying plaintiff specific performance of the alleged “contract” was not error; and the same is hereby affirmed.

HALLEY, C. J., JOHNSON, V. C. J., and CORN and DAVISON, JJ., concur. WELCH, O’NEAL, and WILLIAMS, JJ., dissent.