Young v. Levy , 206 S.C. 1 ( 1945 )

This case comes by way of appeal from Sumter County where action was brought by the respondent for equitable relief to enforce the performance of an agreement, which she claims to have entered into with one Elliott Johnson, now deceased, whereby the respondent was to live with and take care of the said Elliott Johnson and his mother in consideration whereof he was to give her at the time of his death, under his last will and testament, practically all of his property. Elliott Johnson died on July 10, 1942, and there was admitted to probate in common form by the Judge of Probate for Sumter County, South Carolina, shortly after his death, a paper purporting to be his last will and testament, and bearing date March 6, 1939. On August 4, 1942, this suit was commenced for the purpose of declaring a will of Elliott Johnson, dated August 24, 1936, as his last will and testament under a contract made with the respondent by the testator, and for the purpose of declaring the will of March 6, 1939 to be in violation of such agreement with the respondent.

After issues were joined the case was referred to the now lamented, the Honorable H.C. Haynsworth, Master in Equity for Sumter County, and after taking a mass of testimony, he wrote a very able and comprehensive report in which he, in effect, sustained the claim of the respondent. On exceptions to the Master's report, Honorable P.H. Stoll, resident Judge of the Third Circuit, after going into the matter thoroughly, which fact is stressed in his decree, overruled all of the exceptions and confirmed the Master's report.

The appellants have taken nine exceptions to the decree of the Circuit Judge, but in their printed argument state the "Questions Involved" to be:

"I. Did the testator make with plaintiff the contract alleged in the Complaint? (Exceptions 1, 2, 3 and 4.)

"II. Did the trial Judge err in holding that the alleged contract was put into effect by the making by the testator of a will in favor of plaintiff and that such will was proof of the terms of the alleged contract? (Exception 6.)

"III. If the alleged contract was made by the testator was it breached by plaintiff? (Exceptions 5, 7 and 8.)

"IV. Did the trial Judge err in holding that the alleged contract having been made, the testator breached the same, and that if it was breached by plaintiff the testator condoned such breach? (Exception 9.)"

The respondent, in her printed brief, has also stated the "Questions Involved" from her standpoint, but in our opinion the questions necessary to a decision of this case may be condensed and are as follows: 1. Is there competent and substantial evidence in the record to support the finding of fact by the Master in Equity, concurred in by the Circuit Judge, (a) that Elliott Johnson, the testator, entered into an agreement with the respondent to make a will whereby and wherein the respondent was to be the main beneficiary, and (b) that the respondent performed her part of the contract? 2. Upon the performance of the contract by the respondent, did her rights under the contract become vested? 3. Was the making and execution of the 1936 will, whereby the respondent was made the chief beneficiary, in the light of the other testimony, any evidence of the alleged agreement between Elliott Johnson and the respondent? 4. Can a party to a suit testify to a conversation between the deceased and a third person not a party to the suit?

This Court held in the case of Dicks v. Cassels, 100 S.C. 341,84 S.E., 878, and in many other cases, that to show a contract by parol, similar to the one which the respondent has sought to prove in this case, it is necessary that such contract be established by clear, cogent, and convincing evidence which carries irresistible conviction to the mind, that such a contract was made as claimed by the respondent. This is unquestionably a very sound principle of law and we shall adhere to it in deciding the questions involved in this case.

Attention is directed to the comparatively recent case ofBaylor et al. v. Bath et al., 189 S.C. 269,1 S.E.2d 139, a suit to enforce the performance of an alleged oral contract to make a will. The printed brief of appellants in that case cited the case of Dicks v. Cassels, supra. While the cited case was not referred to by name in either the report of the Special Referee (who occupied the same status as a Master in Equity) or the opinion of the Court, no doubt the Court gave full effect to the principle of law established by the Dicks-Cassels case.

That the Master in Equity and the Circuit Judge gave due consideration to this principle of law is evidenced by the citation of the Dicks-Cassels case in the report of the Master, and the order of the Circuit Judge confirming and adopting the report of the Master, wherein it is stated: "Under the rule laid down in the case of Erskine v. Erskine, 107 S.C. 233,92 S.E., 465 (following the rule in Dicks v.Cassels), I have scrutinized the testimony in this case with great care, and I concur with the Master in his findings that the terms of the contract or agreement by Elliott Johnson, deceased, to make a Will in favor of the Plaintiff herein, are definite and certain, and are established by clear and convincing evidence."

In Wilson v. Gordon, 73 S.C. 155, 159, 53 S.E., 79,81, it is stated: "A contract to make a certain disposition of property by will is as valid as any other contract; citing 3 Pomeroy's Equity Jurisprudence, § 1244. Chief Justice Simpson, in discussing such contracts, says, in McKeeganv. O'Neill, 22 S.C. [454], 455, 467: ``Agreements may be divided into two classes, distinguished by the mode in which they are made. (1) The ordinary agreement, where an intentional offer is made on the one side founded upon a sufficient consideration, and an intentional acceptance on the other, resulting in the meeting of minds upon the same terms. (2) "Where it is created by representations made by one party and acts done by the other upon the faith of such representations. Where an absolute, unconditional representation of something to be done in the future is made by one person in order to accomplish a particular purpose, and the person to whom it is made, relying upon it, does the act by which the intended result is obtained and purpose accomplished, a contract is thereby concluded between the parties."'"

It is contended by the appellants that since the respondent is a party to the action and an interested witness, her testimony as to Elliott Johnson's statement to the attorneys in Rocky Mount, North Carolina, when they were preparing to draw the will, is inadmissible under the provisions of Section 692 of the 1942 Code. Section 692 does not bar testimony of a party to the action as to communications between the deceased and third persons, but only communications between the party to the action and the deceased. This interpretation of this section has been established by many decisions of this Court. Some are: Hughey v. Eichelberger,11 S.C. 36; McLaurin v. Wilson, 16 S.C. 402;Colvin v. Phillips, 25 S.C. 228; Roe v. Harrison, 9 S.C. 279. The Master, in admitting the testimony of the respondent as to the conversation between Elliott Johnson and his attorneys, relied upon the rule laid down in the above cases and ably and concisely gave as his reasons for so doing as follows: "Section 692 is an exception to the fundamental right given by statute, as well as by common law, to every litigant to testify in his own behalf. This rule is general; the exception is particular. The language of the particular exception to the general rule must be strictly construed. * * * The excepting statute does not bar the litigant from testifying to communication between the deceased and third person."

Appellants cite the case of Merck v. Merck, 89 S.C. 347,71 S.E., 969, Ann. Cas., 1913-A, 937, and contend that the principle therein announced makes the testimony of the respondent regarding the conversation between the deceased and his Rocky Mount attorneys inadmissible. There is a distinction between the Merck case and this case. The Merckcase is authority for the principle that one who has witnessed the execution of a deed and thereafter becomes the owner of the property conveyed by that deed cannot testify thereafter, in a suit in which he is a party, that he saw the grantor sign the deed when at the time he attempts to testify, such grantor is dead. The Court specifically stated that the witness who was a party to that transaction was disqualified from testifying. Nowhere in the decision is it stated that a party in interest cannot testify to a conversation which he heard between the deceased and a third party. The respondent was not a party to the transaction, but simply heard the conversation between the deceased and his attorneys. Even though she might have been interested in that conversation, her interest does not make her testimony incompetent under Section 692.

This Court has held on numerous occasions that where issues of fact in an equity case are found by the Master and concurred in by the Circuit Judge, that such factual findings will not be disturbed unless such findings are without evidence to support them or are against the clear preponderance of the evidence. In the case of Alderman v. Alderman, 178 S.C. 9,181 S.E., 897, 105 A.L.R., 102, it is stated: "It is a fixed rule that this Court will not disturb concurrent factual findings of the Master and Trial Judge in an equity case unless such findings are without evidence to support them or are against the clear preponderance of the evidence."

To cite other cases on the subject would serve no useful purpose. This principle of law is recognized in South Carolina as a cornerstone in equitable jurisprudence.

Elliott Johnson was a negro possessed of considerably more than average intelligence. He was employed for many years by the Atlantic Coast Line Railroad Company and accumulated property of value, consisting of a number of tenant houses and some personality. He never married. In the Spring of 1936 he had a stroke and was an invalid or a semi-invalid for the rest of his life. He spent considerable time in Railroad Hospitals in Rocky Mount, North Carolina, and Waycross, Georgia. In March, 1936, the respondent, a sister of Elliott Johnson, moved to the home of Elliott in Sumter, South Carolina, upon the invitation of Elliott; she was engaged in profitable employment in New York City prior to this time.

When Elliott Johnson and the respondent were in Rocky Mount, N.C., in June, 1936, a power of attorney was executed by Elliott, which bears date June 29, 1936, under which power of attorney there was turned over to respondent the handling of his entire business. While in Rocky Mount and when Elliott was in conversation with his attorneys who prepared the will of August 24, 1936, the respondent testified that she heard Elliott tell his lawyers that his sister, the respondent, and he had entered into an agreement whereby it was understood that if she would give up her work in New York and make Sumter her home and live with him as a housekeeper, and take care of his mother and himself the rest of their lives, and take care of his property and his business, that he would leave the respondent all of his property, except two insurance policies; that respondent was carrying out her agreement; and that he wanted to make a will as a part of the contract. Norine Bailey, a Notary Public of North Carolina, stated in substance that Elliott Johnson came to her and said that he wanted a will drawn, and she told him that she was not qualified to prepare a will, and directed him to Thorpe Thorpe, Attorneys, in Rocky Mount, North Carolina. Elliott told this witness that he wanted a will drawn giving the respondent the larger portion of his property for taking care of him and looking after him, and that the respondent had given up her work in New York and came and lived in his home for such purposes; and that she was the only one who would come and take care of him and live with him, and he did not know what he would do if it were not for her. Ruby McNair in substance testified that she lived in Rocky Mount, North Carolina, and that Elliott Johnson had told her in the presence of her parents that he was going to give the respondent all he had for taking care of him, and that he had fixed it so in his will that she would get it. Mamie McNair in substance testified that Elliott Johnson told her that the respondent had come from New York to take care of him and his mother; that he had asked her to give up her business in New York and come to his home to take care of him, which she had done; that he was going to give her all of his property and that he wanted her to have everything that he had. Elliott stated further to this witness that the respondent had agreed to his proposition and that he had agreed to give her all of his property. Another witness, Randolph Prince, testified that he was present and heard Elliott tell the respondent that he wanted her to leave, and that in spite of her leaving there would not be any changes made in the agreement.

It does not seem reasonable that a person of the respondent's intelligence would have given up her independence and undertaken the difficult and exacting task of looking after an invalid brother and his business without some understanding about compensation. There is no evidence that she was paid a salary, even though it is admitted that she lived with her brother for almost three years. While it is true that there might have been some sisterly affection which might have played some part in persuading the respondent to come to South Carolina and live with and take care of her sick brother, yet we do not think that she would have done so, or that the average person would have undertaken the task which was before her without some agreement that she would in some way be paid for her services.

We have read and studied the record in this case and there is an abundance of evidence to support the Master and Circuit Judge in their concurrent factual findings that there actually was an agreement between the respondent and Elliott Johnson, with the covenants and conditions substantially as alleged in the complaint, and this is true without the testimony of the respondent.

Having held that there was a contract, our next inquiry is: Was it put into effect when Elliot Johnson made his will on August 24, 1936, and if such will was any evidence of the contract? In the light of testimony we think that the will is in effect a consummation of the agreement between the parties, and actually gives life to the contract. An instrument of such vital importance in a case of this kind cannot be ignored, and we think that is of primary importance in the case. It is true that it is not sufficient in and of itself to prove the agreement relied upon by the respondent, but it certainly is entitled to consideration in recognition of the agreement. The case of Wilson v. Gordon, supra, relied upon by appellants, does not hold that no consideration should be given to a will which is drawn in pursuance of an agreement between parties whereby the testator agreed for a good and valuable consideration to leave his property to another person. In that case the Court held that there was no evidence of a contract. The only evidence relied upon was the will itself, which contained no reference to an agreement, and the Court properly held that the plaintiff was not entitled to the relief asked for since she failed to prove the contract.

We have seen that an agreement was reached between Elliott and his sister, under which he on the one part was to make a will giving her most of his property, and she on her part was to take care of him and his mother. The agreement is corroborated by two outstanding facts, i. e., (1) the respondent entered upon the performance of her duties, and (2) Elliott made the will and delivered it to the respondent. Our Courts have held that a contract of this character is irrevocable, but this does not mean that the contract cannot be abrogated by mutual consent, or if breached by one party, such breach condoned or acquiesced in by the other. In the case of Bruce v. Moon, 57 S.C. 60,35 S.E., 415, 418, it is stated: "Both upon principle and authority we have no doubt that A.H. Moon could not defeat the testamentary provision made for the plaintiff in his will by the conveyance. To allow A.H. Moon, after having received and enjoyed the consideration upon which he promised to give his property, at his death, to the plaintiff, and after having, in recognition of such promise, actually executed his will to that effect, to defeat such testamentary provision by this conveyance to his son would be a palpable fraud on the plaintiff, which a court of equity should not and will not tolerate."

The question now arises: Was the contract breached by respondent? There is ample evidence that the respondent performed her part of the contract by living with her brother and taking care of him for almost three years and of his (their) mother until she left to live with a daughter, and that she (respondent) only left his home when she was required to do so. The witness, Randolph Prince, stated that he heard Elliott Johnson say to his sister, the respondent, that if she did not leave his home he would get the police to come to his assistance and force her to leave. The witness further stated that when respondent asked Elliott what was going to be done about the agreement, Elliott said: "There will not be any changes made at all." If the contract was broken, therefore, Elliott Johnson and not the respondent is responsible; and she should not be required to forfeit her rights under the contract and thereby suffer a loss on account of his acts and conduct. To require her to do so would not be equity.

The respondent performed her part of the contract for almost three years. His other sisters, who lived in Darlington, and some of his friends apparently induced him to get rid of the respondent. There is no evidence that she consented to herself being discharged. The only competent witness, who testified on the subject, was Randolph Prince. He stated that he heard Elliott say to his sister that she would have to leave his home, and when she demurred, he threatened to call the police; and at the time she asked him about the agreement and he said that no change would be made. It seems that it would be far fetched to hold or even claim that the respondent under such circumstances voluntarily surrendered her vested rights because she left the testator's home rather than to submit to physical ejectment by the police. It is true that the respondent's settlement with Mr. Levy, the testator's attorney, concerning money in hand belonging to Elliott, some time after she left Elliott's home, might be slight evidence of her relinquishment of her rights under the contract; but it is no evidence that the respondent knew of her rights under the agreement with Elliott and that she knowingly and voluntarily relinquished such rights. Despite this transaction the evidence is more than sufficient to sustain the Master and Circuit Judge on this question.

In the Master's report of this case, under the sub-heading "Impressions Made by Witnesses", we have been given a most interesting and graphic word-picture of the key witnesses in this case. He was one of wide experience in weighing testimony, therefore this portion of the Master's report, beginning on page 481 of the Transcript of Record and continuing to the top of page 488, down to the sub-heading "Conclusions of Law" will be reported with this opinion. The writer of this opinion is tempted to also direct the reporting of other portions of the Master's report, especially his summation of the testimony of the witnesses, but will not do so.

For the above stated reasons, it is my opinion that the judgment of the Court of Common Pleas should be affirmed.