Rape v. Lyerly

215 S.E.2d 737 (1975)

Donald G. RAPE et al.
v.
Woodrow W. LYERLY et al.

No. 94.

Supreme Court of North Carolina.

June 26, 1975.

Kluttz & Hamlin by Lewis P. Hamlin, Jr., Richard R. Reamer, and Malcolm B. Blankenship, Jr., Salisbury, for plaintiffs-appellees.

Collier, Harris, Homesley, Jones & Gaines by Walter H. Jones, Jr., Mooresville, for defendants-appellants.

SHARP, Chief Justice:

We consider first defendants' contentions (1) that the evidence was insufficient to warrant a finding that Mr. Jim contracted to devise his real property as alleged by plaintiffs and (2) that the writing signed by Mr. Jim was insufficient to comply with G.S. § 22-2, our statute of frauds.

Although an oral contract to devise land is unenforceable, Pickelsimer v. Pickelsimer, 257 N.C. 696, 698, 127 S.E.2d 557, 559 (1962), a valid written contract to devise land is enforceable in equity. Schoolfield v. Collins, 281 N.C. 604, 615-16, 189 S.E.2d 208, 215 (1972).

"An annotation following Naylor v. Shelton, 102 Ark. 30, 143 S.W. 117, Ann.Cas. 1914A, 394 (1912), contains this statement: ``[W]hile a court of chancery is without power to compel the execution of a will, and therefore the specific execution of an agreement to make a will, cannot be enforced, yet if the contract is sufficiently proved and appears to have been binding on the decedent and the usual conditions relating to specific performance have been complied with, then equity will specifically enforce it by seizing the property which is the subject matter of the agreement, and fastening a trust on it in favor of the person to whom the decedent agreed to give it by his will.' Ann.Cas.1914A at 399. This statement is quoted with approval in Stockard v. Warren, supra [175 N.C. 283] at 285, 95 S.E. [579] at 580, and in Clark v. Butts, 240 N.C. 709, 714, 83 S.E.2d 885, 889 (1954)." Schoolfield v. Collins, supra at 616, 189 S.E.2d at 215.

Plaintiffs rely upon the 1959 will, specifically the paragraph thereof designated "FOURTH," as a memorandum of a valid contract to devise land in compliance with G.S. § 22-2. Its sufficiency as a contract must be determined by application of legal principles stated by Justice Rodman in McCraw v. Llewellyn, 256 N.C. 213, 217, 123 S.E.2d 575, 578, 94 A.L.R. 2d 914, 920 (1962), as follows: "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. (Citations omitted.)" (Our italics.)

In Mayer v. Adrian, 77 N.C. 83, 88 (1877), Justice Bynum, for the Court stated: "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." (Our italics.) This statement is quoted with approval in Chason v. Marley, 224 N.C. 844, 845, 32 S.E.2d 652, 653 (1945), and McCraw v. Llewellyn, supra, 256 N.C. at 217, 123 S.E.2d at 578, 94 A.L.R.2d at 920. See Restatement, Contracts, Second, Tentative Drafts Nos. 1-7, Revised and Edited § 207 (1973).

The memorandum on which plaintiffs rely designates the property to be devised, identifies the parties, sets forth their respective obligations as consideration for their contract, and is signed by Mr. Jim, the party to be charged therewith. Hence, it was sufficient as a memorandum to devise "for the purposes of the statute of frauds." 72 Am.Jur.2d, Statute of Frauds § 304 (1974); Annot., "Statute of frauds: will or instrument in form of will as sufficient memorandum of contract to devise or bequeath," 94 A.L.R. 2d 921, 931-34, 947-954. Moreover, being in the form of a will, the memorandum fixes the precise manner in which Mr. Jim is to dispose of his real property in performance of his obligations under the contract. The contract involved in Bumpus v. Bumpus, 53 Mich. 346, 19 N.W. 29 (1884), cited by defendants, was held unenforceable because of the vagueness of the obligations of the promisee.

In the Restatement, Contracts, § 207 at p. 279 (1932) and Restatement, Contracts, Second, supra at 464, after stating the general requisites of a memorandum, in order to make enforceable a contract within the Statute of Frauds, this illustration is given: "A makes an oral contract with B to devise Blackacre to B, and executes a will containing the devise and a recital of the contract. The will is revoked by a later will. The revoked will is a sufficient memorandum to charge A's estate."

There was ample evidence to support the jury's affirmative answer to the first issue, a finding that Mr. Jim contracted to devise his real property to Mildred for the consideration and upon the conditions set forth in the paragraph designated "FOURTH" in the 1959 will. There was also ample evidence to support the jury's affirmative answer to the second issue, a finding that Mildred, during her lifetime, performed her obligations as contemplated by the contract.

We note here that Mildred, Basil, and the Rape children, had lived with Mr. Jim and Miss Pearl from 1945 until 1959. The evidence discloses that in 1959 (1) the five members of the Rape family could not continue to live in the Lyerly house unless additional rooms were provided; and that (2), having lived with Mildred, Basil, and the Rape children for the past fourteen years, Mr. Jim and Miss Pearl knew the kind of care they might reasonably expect in the days ahead, and they desired to continue the relationship with that family.

We further note that, beginning in 1946, the expenses of the two households, Woodrow's household and the Rape-Lyerly household, were paid from partnership funds, and that this continued throughout the subsistence of the formal partnership agreement between Woodrow and Basil, that is, until 1 August 1969. The evidence discloses that these payments, which benefited Mr. Jim and Miss Pearl directly or indirectly, constituted the care provided by Woodrow in discharge of his obligations under the paragraph designated "FOURTH" of the 1959 will.

Defendants contend, however, that even if the paragraph designated "FOURTH" was a valid contract to devise when Mr. Jim signed the 1959 will, it called for the personal services of Mildred and therefore terminated at Mildred's death.

Obviously the parties contemplated that Mildred would perform the services required to care for the personal needs of her mother and father in the home. Her health was good when the 1959 will was executed. Her malignancy was discovered in 1961. Successive reoccurrences after surgery ultimately caused her death in April of 1965.

To support their contentions, defendants cite Siler v. Gray, 86 N.C. 566 (1882), and Stagg v. Land Co., 171 N.C. 583, 89 S.E. 47 (1916). These decisions are cited in Peaseley v. Coke Co., 282 N.C. 585, 596, 194 S.E.2d 133, 141 (1973), in support of the statement therein contained that many courts have held that contracts calling for the personal services of a salesman do not survive his death, "the rationale being that the death of the person who was to perform the personal services makes further performance impossible."

Notwithstanding, "even though the contract is one which would terminate at the promisee's death, the promissor may waive this feature of the contract and does so where he permits others, associated with the promisee in his lifetime in rendering the performance, to continue after his death and accepts such performance without giving notice within a reasonable time of an intention to consider the obligation as ended." 94 C.J.S. Wills § 117d, p. 879 (1956). Accord, 57 Am.Jur. Wills § 175, p. 155 (1948); 1 Page on Wills, Section 10.25 (Bowe-Parker rev. 1960); Soper v. Galloway, 129 Iowa 145, 105 N.W. 399 (1905); Prater v. Prater, 94 S.C. 267, 77 S.E. 936 (1913). For the factual situation in Soper, supra, and for apposite quotations from the opinions in Soper and Prater, supra, reference is made to Judge Britt's opinion for the Court of Appeals. In Bourget v. Monroe, 58 Mich. 563, 25 N.W. 514 (1885), and in Parker v. Macomber, 17 R.I. 674, 24 A. 464, 16 L.R.A. 858 (1892), decisions cited by defendant, the promissor repudiated the contract to devise upon the death of the person whose services constituted the consideration for the contract and refused to accept the services of others in lieu thereof.

For present purposes, we assume that upon Mildred's death, Mr. Jim had the right to terminate the contract to devise on the ground that his obligation to devise depended upon the rendition of personal services by Mildred; and we further assume that neither Basil nor plaintiffs had a legal right to substitute their services for the services of Mildred. Suffice to say, Mr. Jim did not terminate the contract. On the contrary, the services which Mildred would have performed were rendered by Basil and plaintiffs and accepted by Mr. Jim and Miss Pearl. Moreover, there was plenary evidence that Mr. Jim was outspoken in his praise of the services he and his wife received both before and after Mildred's death and by him until his own death. Instead of seeking to terminate the contract embodied in the 1959 will, the evidence is to the effect that Mr. Jim considered that Basil and plaintiffs were obligated to render and provide the services Mildred would have rendered and provided had she outlived her parents. There was ample evidence to support the jury's affirmative answer to the third issue, a finding that, following the death of Mildred, care was furnished Miss Pearl and Mr. Jim by or on behalf of plaintiffs as contemplated by the contract until both died, and that Mr. Jim accepted such services "in fulfillment of the said agreement."

Defendants further contend that, by operation of law and by provisions therein, the 1969 will revoked the 1959 will.

"``Revocation' has been defined as the avoiding and invalidating of an instrument which, but for the revocation, would have been the last will and testament of the party by whom it was executed." 95 C.J.S. Wills § 262, p. 30 (1957). As stated In re Estate of Ramthun, 249 Iowa 790, 798, 89 N.W.2d 337, 341-42 (1958): "All wills are by nature ambulatory, and thus their provisions may be changed prior to death by the maker unless by contractual provisions others' rights thereunder become fixed. In other words, a will is revocable only to the extent that the testator has not contracted to make it irrevocable. [citations omitted]." (Our italics.)

The applicable legal principles are well stated in Estate of McLean, 219 Wis. 222, 227-228, 262 N.W. 707, 710 (1935), as follows: "A will made under an agreement based upon a valuable consideration is contractual as well as testamentary, and equity will enforce the provision made for the promisee. A will so made cannot be revoked by the testator so as to defeat the bequest or devise made by it pursuant to his agreement. Nor can the testator destroy the effect of a provision therein so made by making a subsequent disposition by will of the property so devised or bequeathed by the first will. He cannot so avoid his contract which he has performed. His heirs can gain no advantage by his revocation, if he revoke the will, nor can devisees or legatees under a subsequent will gain any. The execution of the will pursuant to the promise creates a trust in the property devised or bequeathed pursuant to the contract which will be enforced in equity against the heirs or those claiming under a subsequent will." These legal principles are applicable and have been applied to factual situations such as that now under consideration. Nelson v. Schoonover, 89 Kan. 388, 131 P. 147 (1913); Torgerson v. Hauge, 34 N.D. 646, 159 N.W. 6, 3 A.L.R. 164 (1916).

In the Annotation, "Right to Revoke Will Executed Pursuant to Contract," 3 A.L.R. 172 (1919), the author states: "The general rule is, therefore, that a will executed pursuant to a contract cannot be revoked so as to relieve the testator of its contractual obligation." In addition to Nelson, supra, and Torgerson, supra, the following decisions involving factual situations in which personal services performed and to be performed were the consideration for the promise to devise land, are cited in support of the quoted statement: Bolman v. Overall, 80 Ala. 451, 2 So. 624, 60 Am.Rep. 107 (1886); Smith v. Tuit, 127 Pa. 341, 17 A. 995, 14 Am. St. Rep. 851 (1889), Second appeal, Tuit v. Smith, 137 Pa. 35, 20 A. 579 (1890); Bruce v. Moon, 57 S.C. 60, 35 S.E. 415 (1900). Later decisions to the same effect include the following: Goodin v. Cornelius, 101 Or. 422, 200 P. 915 (1921); Brock v. Noecker, 66 N.D. 567, 267 N.W. 656 (1936); White v. Smith, 43 Idaho 354, 253 P. 849 (1926); Johnston v. Tomme, 199 Miss. 337, 24 So. 2d 730 (1946). Also see Remele v. Hamilton, 78 Ariz. 45, 275 P.2d 403 (1954), and Cagle v. Justus, 196 Ga. 826, 28 S.E.2d 255 (1943), and cases cited therein.

The 1969 will contained an "in terrorem" clause, providing in part that "if any person entitled to any legacy, bequest or devise under the terms of this Will shall, directly or indirectly, . . . institute any proceedings, suit or action, for the purpose of . . . changing the effect of this Will, wholly or in part, then and in that event, all the legacies, bequests or devises declared in favor of such person by this Will. . . shall immediately thereupon be revoked and become wholly void and of no effect." Based on this provision, defendants alleged as a counterclaim that plaintiffs, by the institution of this action, had forfeited the rights to which they would have been entitled under the 1969 will.

The counterclaim was properly dismissed since the rights of plaintiffs under the 1959 will had become irrevocable. The "in terrorem" clause in the 1969 will was irrelevant in respect of the claim asserted by plaintiffs in this action. Plaintiffs have asserted no claim under the 1969 will. Also, there was ample evidence to support the jury's affirmative answer to the fourth issue, a finding that this action was brought in good faith. In this connection, see Ryan v. Trust Co., 235 N.C. 585, 588, 70 S.E.2d 853, 855 (1952); and Haley v. Pickelsimer, 261 N.C. 293, 134 S.E.2d 697 (1964).

Defendants further contend plaintiffs did not commence this action within three months from the rejection by defendants' counsel of plaintiffs' claim as set forth in a letter from plaintiffs' attorney to defendants.

G.S. § 28-112, on which defendants base their contention, does not apply. These statutes refer to claims of creditors of an estate, payable out of the assets of the estate. Plaintiffs assert no claim against the estate of Mr. Jim. Nor have they filed any claim with the executrix thereof. They assert present equitable ownership of the real property under the 1959 contract to devise, contending the beneficial interest in such real property did not pass under the 1969 will and did not become part of Mr. Jim's estate.

The three-year statute of limitations for breach of contract, G.S. § 1-52(1), did not begin to run until Mr. Jim's death. Stewart v. Wyrick, 228 N.C. 429, 432, 45 S.E.2d 764, 766 (1947); Speights v. Carraway, 247 N.C. 220, 222, 100 S.E.2d 339, 341 (1957). This action was commenced well within this limitation.

Defendants, seeking to invoke the equitable defense of laches, contend this action is barred because of plaintiffs' delay in commencing it. The contention is without merit. The doctrine of laches applies only when circumstances have so changed during the lapse of time it would be inequitable and unjust to permit the prosecution of the action. Teachey v. Gurley, 214 N.C. 288, 294, 199 S.E. 83, 88 (1938).

According to uncontradicted evidence, Woodrow read the 1959 will shortly after Mr. Jim signed it. To what extent, if any, the other defendants were advertent to the exact provisions thereof is unclear. It is implicit in the evidence, however, that the entire Lyerly family knew that the Rapes had been promised the homeplace at Mr. Jim's death. Mrs. Mack was fully aware that the 1969 will changed the provisions of the prior will to the detriment of plaintiffs. All defendants were fully advised of plaintiffs' claim and the basis therefor shortly after Mr. Jim's death. Plaintiffs continued in possession of the subject property. They did not participate in any way in the administration of the personal estate under the 1969 will, nor did they accept any distribution from Mr. Jim's personal estate. This factual situation discloses no change in circumstances sufficient to invoke the doctrine of laches.

Assuming their motion for a directed verdict was properly denied, defendants contend a new trial should be awarded because of errors in the conduct of the trial. They assign as error the admission over their objection of the testimony of Basil concerning what was said and done when Mr. Jim produced the 1959 will, submitted it to Mildred, Basil, and Woodrow, for reading and approval, and delivered it to Basil for safekeeping. They contend that Basil's testimony was incompetent under G.S. § 8-51 in that he was a person interested in the outcome of this action against the devisees of Mr. Jim and that he was testifying in his own behalf against those devisees with reference to a personal transaction between himself and Mr. Jim.

For conditions prerequisite to the disqualification of a witness under G.S. § 8-51, see Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043 (1890); Peek v. Shook, 233 N.C. 259, 261, 63 S.E.2d 542, 543 (1951); Sanderson v. Paul, supra, 235 N.C. at 58-59, 69 S.E.2d at 158; 1 Stansbury's N.C. Evidence, § 66 (Brandis Rev. 1973).

Parenthetically, we note here that Basil is not a party to this action. Defendants' motion to dismiss this action upon the ground that Basil is a necessary party was denied by the judge presiding at the October 1972 Session. We also note that Basil filed in the Court of Appeals a disclaimer of any interest in the real property formerly owned by Mr. Jim. Notwithstanding, the question is whether Basil had a legal pecuniary interest in the event of the action at the time he was examined as a witness at trial. Sanderson v. Paul, 235 N.C. 56, 61, 69 S.E.2d 156, 160 (1952).

It may be conceded Basil's testimony that Mr. Jim delivered the 1959 will to him for safekeeping was a personal transaction within the meaning of G.S. § 8-51. Obviously, both Mr. Jim and Woodrow contemplated that Basil would cooperate with Mildred and assist her in the discharge of her obligations under the 1959 contract-will. However, this document imposed no legal obligation on Basil to perform personal services for Miss Pearl and Mr. Jim. Nor did it impose any obligation on Mr. Jim to devise his real property or any interest therein to Basil. Since decision is based on the ground stated below, it is unnecessary to decide whether the fact that Basil was present and saw and heard what occurred when the 1959 contract was entered into between Mildred, Mr. Jim, and Woodrow, constituted a personal transaction between Basil and Mr. Jim. In this connection, see 1 Stansbury, supra at § 73, p. 223.

Although a "person interested in the event" of the action is disqualified, his interest must be a "direct legal or pecuniary interest" in the outcome of the litigation. "The key word in this phrase is ``legal,' the cases as a whole showing that the ultimate test is whether the legal rights of the witness will be affected one way or the other by the judgment in the case. The witness may have a very large pecuniary interest in fact—as the interest of a wife in an important law suit to which her husband is a party—and still be competent, while a comparatively slight legal interest will disqualify the witness." 1 Stansbury, supra at § 69, p. 211, and cases there cited.

Plaintiffs do not claim ownership of Mr. Jim's property as heirs of their mother. They base their claim solely on the 1959 contract-will. The obligations assumed by Mildred, having been fully performed on her behalf and accepted by Mr. Jim in fulfillment of the contract until his death on 23 November 1970, plaintiffs contend the attempt by means of the (secret) 1969 will to change the disposition of Mr. Jim's real property constituted a breach of contract and, in respect of the real property, did not revoke the 1959 contract.

"[A] decree for specific performance is nothing more or less than a means of compelling a party to do precisely what he ought to have done without being coerced by a court." 71 Am.Jur.2d, Specific Performance § 1, p. 10 (1973). Accord, McLean v. Keith, 236 N.C. 59, 71, 72 S.E.2d 44, 53 (1952).

"It is sometimes said that the will is irrevocable in equity, but the meaning of that simply is that while equity knows that the will has been revoked, it will nevertheless decree that the property shall be held for those who would have taken if the will had not been revoked." Costigan, Constructive Trusts Based on Promises Made to Secure Requests, Devises, or Intestate Succession, 28 Harv.L.Rev. 237, 250 (1915), quoted in Knox v. Perkins, 86 N.H. 66, 163 A. 497 (1932).

The foregoing impels the conclusion that the rights of plaintiffs are determinable as if Mr. Jim had died leaving a valid, probated will, in which he devised his real property in the manner set forth in the paragraph designated "FOURTH" in the 1959 contract-will. Had he done so, plaintiffs would take as the issue of Mildred by virtue of G.S. § 31-42(a) which provides: "Unless a contrary intent is indicated by the will, where a devise or legacy of any interest in property is given to a devisee or legatee who would have taken individually had he survived the testator, and he dies survived by issue before the testator, whether he dies before or after the making of the will, such devise or legacy shall pass by substitution to such issue of the devisee or legatee as survive the testator in all cases where such issue of the deceased devisee or legatee would have been an heir of the testator under the provisions of the Intestate Succession Act had there been no will." (Our italics.)

Plaintiffs having acquired ownership as issue of Mildred, Basil had no pecuniary legal interest in plaintiffs' real property; therefore, his testimony was not incompetent under G.S. § 8-51. For the same reasons, he was not a necessary party to this action.

In Linebarger v. Linebarger, 143 N.C. 229, 55 S.E. 709 (1906), cited by defendants, the Court held the wife of one of the caveators, a son of the testator, was not a competent witness to declarations of the testator. Basing decision on the statute now codified as G.S. § 8-51, the Court said: "It is clear that if the caveators succeeded in their contention, the husband of the witness, as one of the heirs at law, became the owner of an undivided interest in the real estate. It is well settled by a number of decisions that the wife immediately upon the seizin, either in law or deed of the husband, becomes entitled to ``an inchoate right of dower or estate in the land' of her husband. [Citations omitted.] She therefore had an interest in the property dependent upon the result of the controversy and, under the ruling in Pepper v. Broughton, 80 N.C. 251, was incompetent." Id. at 231, 55 S.E. at 710.

In Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241 (1914), in the husband's action against the administrator to recover compensation for personal services rendered to the decedent, the Court held plaintiff's wife was a competent witness to declarations of the decedent. The Court noted that "the wife had no interest [within the meaning of G.S. § 8-51], as, upon a recovery by the plaintiff no right growing out of the married relationship would attach to the money recovered." The Court further noted that Linebarger v. Linebarger, supra, was "not in point, because the property in controversy was land, and the wife's inchoate right to dower attached immediately upon the recovery by her husband." Id. at 205-206, 83 S.E. at 241. For the reason noted in Helsabeck v. Doub, supra, Linebarger is not applicable to the facts of the case we are considering.

Defendants also assign as error, based on G.S. § 8-51, the admission over their objection of portions of Basil's testimony with reference to personal services he and plaintiffs performed for Miss Pearl and Mr. Jim. For the reason discussed above, this contention is without merit. In this connection, we note that Basil was cross-examined at length with reference to such services; that Mr. Jim's brother and sister, Miss Pearl's nephew, Mr. Jim's friends and neighbors, also testified to such services and to Mr. Jim's statements of satisfaction with reference thereto; and that two of the plaintiffs (Donald and Caroline) testified, without objection, with reference thereto.

Defendant also assigns as error the admission of testimony of oral statements made by Mr. Jim to various relatives and neighbors concerning the arrangement he had made for the care of himself and of Miss Pearl. This testimony, much of which was admitted without objection, was the subject of extensive cross-examination as well as direct examination. It was competent as tending to show that Mr. Jim regarded the arrangement he had made as contractual, as contended by plaintiffs and denied by defendants, not to prove an oral agreement. Admittedly, plaintiffs' recovery must be on the 1959 contract-will, irrespective of any variations in declarations Mr. Jim may have made to relatives and neighbors relative to the exactness of the agreement he had made.

The testimony of statements made by Mr. Jim relating to the arrangement he had made for the lifetime care of himself and his wife, as well as those relating to his appreciation and acceptance of the services rendered, was competent, these statements being declarations against interest and inconsistent with a right to avoid the obligations of the 1959 contract-will. Smith v. Perdue, 258 N.C. 686, 129 S.E.2d 293 (1963); Hager v. Whitener, 204 N.C. 747, 169 S.E. 645 (1933); 1 Stansbury, supra at § 147, pp. 493-499. On the other hand, the statements attributed to Mrs. Mack were self-serving declarations which, upon objection, should have been excluded.

All of defendants' remaining assignments of error have been considered. None discloses prejudicial error or presents a legal question of sufficient significance to merit discussion.

The evidence fully supported the verdict, and the judgment based thereon is in accordance with applicable law. Hence, the decision of the Court of Appeals is affirmed.

Affirmed.

COPELAND and EXUM, JJ., did not participate in the hearing or decision of this case.