Gordon v. Spellman , 145 Ga. 682 ( 1916 )

Evans, P. J.

(After stating the foregoing facts.)

1, 2. It was said by Mr. Justice Cobb in Banks v. Howard, 117 Ga. 94 (43 S. E. 438): “Contracts under which one of the contracting parties agrees with the other, for a valuable consideration, that he will make a will giving to the other property, either real or personal, have been sustained and enforced in America from the earliest times; and the validity of such contracts seems now to be beyond all doubt.” If the promisor in such a case makes a will which is probated, devising specific land to another -in violation of the terms of the contract, equity will impress a trust on the property, which will follow it into the hands of the personal representative or devisee of the promisor. Belt v. Lazenby, 126 Ga. 767 (5), 773 (56 S. E. 81). Where one makes a will in violation of his contract to make a particular devise, the probate of such will does not defeat the equitable remedy of the other party for the enforcement of his rights under the contract. The plaintiff is making no attack on the judgment of probate, but is seeking a decree to avoid the attempted devolution of title by the will, by the impressment of a trust on the property devised.

3, 4. If on the trial of an action against a devisee for specific performance- of the plaintiff’s contract with the testator of the devisee, with reference to the land devised, it should be developed that, without fault of the plaintiff but on account of the defendant himself, a specific performance of the contract is impossible, damages may be awarded for a breach of the contract. Civil Code (1910), § 4639; Banks v. Howard, supra; Spearman v. Wilson, 44 Ga. 473 (3). The measure of damages is the value of the property promised to be devised. The court instructed the jury that for breach of the contract the plaintiff would be entitled to recover the reasonable value of her services. The jury returned a verdict for the plaintiff “for the value of her services, the sum of five thousand ($5,000.00) dollars, to be levied and paid out of the whole estate of Mrs. Mary Graeffe, including property devised to the Gordons.” The measure of damages prescribed by the judge was erroneous. It is true that in another portion of his charge he gave the correct rule as to the measure of damages, but the jury in formulating their verdict specifically stated that they found for the plaintiff for the value of her services. It is argued that inasmuch as the defendants admitted in their answer that the value of the property on which the trust was sought to be impressed exceeded the amount of recovery, the error was harmless. We can not agree to this, because the jury expressly stated in their verdict that they were compensating the plaintiff for her services. We can easily conceive of a case where the disparity between the value of the services and that of the property may be such that a jury, with the court’s sanction, may be willing to compensate the plaintiff by awarding to her the value of her services, though unwilling to find in her favor as for a breach of contract.

5. An oral contract to devise lands falls within the statute of frauds; but where the party in whose favor the will is to be made has performed his part of the contract, and the other party dies leaving a will in which no devise is made pursuant to the oral contract,, the disappointed party may, in a proper case, apply to a court of equity for specific performance. Banks v. Howard, 117 Ga. 94 (supra), and authorities cited at page 96.

6. The consideration of the contract is personal service rendered Mrs. Graeffe during life. The plaintiff’s cause of action did not accrue -until her death and until her failure to make the devise according to contract.

7. A judgment admitting a will to probate can not be collaterally impeached. The theory of the plaintiff’s case recognized the validity of the probate of the will of Mrs. Graeffe. She did not attack the probate, but sought to impress a trust on the devise in the probated will. In the course of his charge the court instructed the jury that he did not understand that any attack was made upon the testamentary capacity of the deceased to make a will. Nevertheless he charged on the subject of the requisite mental capacity to make a will, and also on the subject of undue influence as destroying testamentary capacity. The charges were clearly irrelevant. The plaintiff in her petition charged that the testatrix was old and infirm, and the proof took a wide range with respect to the conduct of the Gordons during their acquaintance with the testatrix, which extended over but a few months prior to the making of the will. The court’s instruction as to testamentary capacity and undue influence was calculated to arouse prejudice against the defendants in respect to the making of the will, or to create an impression that the devise to the Gordons would be invalid if the testator was deficient in testamentary capacity, or was unduly influenced by the Gordons to make the devise to them.

8. The ruling in the 8th headnote has the sanction of this court in Hudson v. Hudson, 90 Ga. 581 (4), 587 (16 S. E. 349).

9. Complaint is made that the court erred in permitting counsel for the plaintiff, in cross-examination, to question one of the defendants as a witness as to experiences and facts surrounding his marriage, as to who procured the license, and so forth, over objection of defendants that same was irrelevant. The replies elicited by the cross-examination are not stated; and under repeated rulings of this court this ground of the motion is incompíete, and will not be considered. Stoner v. Patten, 132 Ga. 178 (63 S. E. 897).

Judgment reversed.

All the Justices concur.