1. Specific performance is not a remedy which either party to an alleged contract can demand as a matter of absolute right, and will not in a given case be granted unless strictly equitable and just; and a court will be justified in refusing a decree of specific performance upon inadequacy of price or any other fact showing the contract to be unfair or unjust or against good conscience. In order to authorize specific performance of a contract, its terms must be clear, distinct and definite.

( a) While it is the general rule that to enforce a contract under which one of the parties agrees that, in return for services to be rendered by the other, he will make a will devising property to such other person, the petition must allege the value of the services to be rendered and also the value of the property to be willed, so as to show that the contract sought to be enforced is not unfair or unjust or against good conscience, exceptions exist in cases where one goes into the home of a near relative agreeing to nurse and give the other personal, affectionate, and considerate attention such as could not be readily procured elsewhere, and where the value of such services could not be readily computed in money.

( b) The petition as amended, seeking specific performance of an alleged oral contract between the petitioner and the defendant executor's testatrix, whereby in consideration of services to be rendered by the petitioner to the testatrix the latter promised to make a will leaving to the petitioner described real estate, and setting forth full performance by the petitioner of the agreement and a breach by the testatrix, set forth a cause of action for specific performance.

( c) Under the allegations of the petition as amended as to the defendant executor not being under bond, his insolvency, and his liability for rents and profits from the property in question since February 23, 1945, and that unless a receiver be appointed to take charge of such property the petitioner would suffer irreparable loss, the petitioner would be entitled to the appointment of a receiver and an accounting in equity, since such full relief could not be afforded by the court of ordinary in which the will of the testatrix had been probated in common form and in which administration was pending.

2. The special demurrers are without merit.

No. 16548. APRIL 14, 1949. REHEARING DENIED MAY 12, 1949.

Jo James Pope filed in the Superior Court of Fulton County, Georgia, an equitable petition against George Holliday, individually and as executor under the will of Rebecca Smith. The petition was twice amended and, after one paragraph had been stricken on demurrer, the petition as finally amended alleged: The petitioner is the grandson of Rebecca Smith, deceased, who departed this life on February 20, 1945, while a resident of Fulton County. The defendant was not related to her by blood or marriage and was not a creditor of her. At the time of her death she was seized and possessed of described property at 977 Smith Street in the City of Atlanta, Georgia. About 1930 she entered into a verbal contract with the petitioner to will him the said real estate in consideration of his agreement to make his home with her and render her such service and assistance from time to time as she required. In reliance upon the said agreement, the petitioner did make his home with her until he married. In further reliance upon the said agreement, the petitioner rendered her the service and assistance that she required.

By an amendment of April 25, 1947, it was alleged that the service and assistance required by her and furnished by the petitioner and accepted by her was as follows: He waited on her when she was ill by handing her water, medicine, food and whatever she requested, and calling a doctor when she wanted one, going to the store and making purchases for her, bringing in coal, building fires, sweeping the floors, washing the dishes, making the beds, running errands of whatever kind she directed, sometimes helping her cook meals, and after he got old enough to work he obtained employment wherever he could and did whatever he could for such wages as he was able to obtain and used the same to buy clothes, food, kindling, coal, medicine, and other household and personal necessities. As he grew older and earned more money, he gave her money in varying amounts at irregular times up to the time of her death, the amounts ranging from $1 or $2 to $15 and $20 at the time, the monthly amount at the time of her death being approximately $15 regularly. After he married and moved out of the home of his grandmother, he sent money as she requested it for her needs, and from time to time she wrote him for money for the purpose of painting the house, paying labor, and buying paint, and for the purpose of buying shoes, clothes and food, medicines, and for physicians to treat her, and the petitioner sent her the money as requested. She depended on him to provide for, care for, and protect her, and recognized him as if he were her own child and looked to him in the same manner, and repeatedly recognized and acknowledged, affirming and reaffirming her agreement that he should have all of her property at her death. On one occasion, when writing the petitioner for money with which to pay for painting and repairing the property, she reaffirmed the contract between her and the petitioner that at her death all of the property would become the property of the petitioner, and that he, therefore, should see that the property was protected, preserved, and kept up, not one house but both houses, and he complied with this request. One postoffice money order for $15 was in the mail from the petitioner to his grandmother at the time of her death, the same having been issued February 19, 1945, and mailed on that date from the petitioner in Florida to her in Atlanta, the same being represented by postoffice money order receipt number 297285. The petitioner was engaged in national defense work at the time of her death, and had been for a long time prior thereto, and his employment carried him to Florida where it was impossible for him to visit and be with his grandmother as much as desired, but he was subject to the Selective Service Draft Law and desired to remain out of military service as long as he legitimately could, and to do this required that he be and remain with a national defense activity actually working to promote the national defense in some critical employment. Because the Selective Service Draft regulation of the draft boards made employees quitting defense jobs subject to the draft and immediate induction into military service, the petitioner was afraid to quit his employment and try to get other employment in Atlanta. He gave his grandmother $60 to paint the house in 1943, but it cost only $45. He purchased two tons of coal for her each winter while he was living in the house with her, and after that he kept the house in repair, paid the taxes, and painted the house each year. Until her death the petitioner purchased his grandmother clothing for spring, summer, and winter, and ever since he has been grown he provided every necessity for her and urged her to quit work, but she insisted on working as long as she could. He has been working with his grandmother since he was 9 years old. She was taking in washing and ironing, and he helped her by bringing wood and putting fire under the washpot and carrying the clothes and hanging them out and actually doing some of the washing with his own hands. After he got old enough to work he was employed at the Terminal Station, Davison-Paxon Company, Atlanta Mattress Company, Rogers grocery store at 933 McDaniel Street, and he was a delivery boy at several drug stores. He worked for $90 a month at a warehouse in Atlanta, and of this amount $25 went to his grandmother every two weeks. When he went to Florida he had his baby sister stay with his grandmother in 1943 from February 7 until August 15, and then had his brother stay with her in 1944 until 1945. The petitioner's wife lived with his grandmother after he went to Florida until he married his wife and sent for her to join him in Florida. Each time his grandmother would get ill the petitioner sent his wife to stay with her and wait on her until she recovered. After the petitioner went to Florida in the war defense work, he returned several times to Atlanta to see how his grandmother was getting along and planned to return to Atlanta for good as soon as the war was over, June 1, 1945, in accordance with arrangements between him and his grandmother already made. He was to return and live in the house with her, but she died in February, 1945, and after her death the petitioner got a better job in Florida and remained there. The defendant is not under bond as executor of the estate of the said deceased, and he is collecting rent from the properties, for which he should account. On information and belief the petitioner alleges that the defendant is insolvent, and if required to account to him for rent collected from the said properties, he will be unable, on account of his insolvency and poverty, to do so.

By a second amendment on October 28, 1948, it was further alleged as to his services: The fair and reasonable value of the services the petitioner rendered his grandmother was $25 per month from 1930 to the date of her death, or a total of $4500. He cannot allege the exact amounts of money he furnished his grandmother in varying amounts from time to time for the reason that he did not keep any account of the same, but the average amount he furnished his grandmother per month is in excess of $10 from 1935 up to the time of her death. He cannot allege the exact amount of groceries, clothing, coal, kindling, paint, house repairs, and other purchases and provisions made and obtained by the petitioner for his grandmother, because he never kept any book of account, but it averaged in excess of $25 per month from 1935 to the time of her death. The value of the services rendered by him, together with the moneys he furnished his grandmother and spent for her by him, is in excess of $8750.

It was alleged in the original petition: It was a part of the verbal agreement that when the petitioner married he would move from his grandmother's home. Pursuant to that agreement, when the petitioner married he removed his residence from his grandmother's home, but continued to serve and assist her, and she continued to receive and accept such service and assistance to the day of her death. Therefore, in equity and good conscience the petitioner is now the owner of the said property, entitled to the possession and enjoyment thereof with the rents and profits therefrom, and the defendant is in possession as trustee for the petitioner. Notwithstanding the facts hereinbefore alleged, the defendant did, on or about February 23, 1945, usurp and take possession of the said real estate, claiming the ownership there under the said will of the deceased and as executor of the said will. The will was filed for probate in common form by the defendant on or about February 23, 1945, a copy thereof being attached to the petition as Exhibit "A" and made a part thereof. This exhibit shows that the petitioner was willed certain realty located at 401 Arthur Street in the City of Atlanta, to become his when he reached the age of 21 years, to be held for him in the meantime by the executor, who was directed to give him from time to time such amounts as he might in his discretion, think necessary and proper. The property here involved, however, was willed to George Holliday, the defendant. It was further alleged as follows: The defendant has collected the rents and profits from the property since February 23, 1945. The fair rental value of the property for the said period has been $35 per month, and the fair market value is $3500. The said will was made in violation of the said verbal agreement between the petitioner and Rebecca Smith, and her failure to will the property described in the petition was a breach of the said verbal agreement. The said will was probated in common form in the Court of Ordinary of Fulton Court on or about March 7, 1945. Under the law, no objection or caveat could be filed to the probate in common form, and the Court of Ordinary of Fulton County has no jurisdiction to decree specific performance of equitable relief. The petitioner is an heir at law of his said grandmother. On information and belief the petitioner alleges that, except for the said property, the defendant is insolvent. By reason of the facts herein alleged, the petitioner is entitled to an accounting from the defendant for the rents and profits since taking possession of the said property and is entitled to the appointment of a receiver to take immediate possession of the property and protect the same by fire insurance and collect and hold the rents from the property until this case can be tried, and on the trial the petitioner is entitled to a decree vesting title to the said property in the petitioner of record. Unless equity assume jurisdiction and enjoin the defendant from further trespass in the premises and appoint a receiver to take charge of the property and protect the same and enjoin the defendant from interfering in any way with the said property, the petitioner will suffer irreparable loss because the defendant is not under bond as such alleged executor under the said will. On account of the facts herein alleged, the petitioner is entitled to specific performance of the said verbal agreement between him and his deceased grandmother, but if this is impossible for any reason the petitioner should be awarded damages for breach of the said verbal agreement.

The prayers were: (a) for process; (b) that specific performance be decreed; (c) that a receiver be appointed; (d) for an accounting; (e) that a declaratory judgment be entered declaring the petitioner to be the owner of the real estate and entitled to the rents and profits therefrom since the death of the petitioner's grandmother; (f) that the defendant be restrained and enjoined from attempting to probate the alleged will in solemn form in the Court of Ordinary of Fulton County; (g) that the said will be decreed to be fraudulent and in violation of the said verbal agreement between the petitioner and his grandmother and a breach thereof, and that the property became the property of the petitioner upon the death of the grandmother, and that, therefore, there was no property to pass to the defendant under the said will, and the defendant is holding the said property as trustee, and that the trust is executed; and (h) for general relief.

Demurrers were filed to the original petition. After the first amendment the demurrers were renewed with an additional ground of demurrer to the petition as amended and the amendment was demurred to on various grounds. After the second amendment the previous grounds of demurrer were renewed to the petition as amended, and numerous grounds of demurrer were urged to the second amendment. The court, on November 29, 1948, rendered three separate judgments. The first judgment sustained one ground of special demurrer and struck from the original petition a paragraph which has been omitted from the foregoing statement of facts, all other grounds of demurrer being overruled. The second judgment overruled all grounds of the second demurrer, and the third judgment overruled all grounds of the third demurrer. The grounds of general demurrer to the petition as finally amended were as follows: No cause of action is set forth by the petition as amended. Under the allegations it appears that the court is without jurisdiction to set aside the will of Rebecca Smith. Under the allegations it appears that the court is without jurisdiction of the subject-matter, because it affirmatively appears that the will was proven in common form in the Court of Ordinary of Fulton County and the court of equity is without power to interfere with the right of administration of the estate in the court of ordinary for the purpose of attacking the validity of the will. The allegations are too vague and indefinite to show any valid contract in law or equity enforceable against the defendant, either in his individual or representative capacity. The petitioner has no standing in law or equity to maintain an action which is adverse to the will of Rebecca Smith without renouncing the legacy made to him under the will. It affirmatively appears from the petition as amended that the petitioner, at the time of the alleged contract, in the year 1930, was a minor and incompetent to make a contract.

Special demurrers were urged to the petition as amended, to various paragraphs of the original petition, to various allegations of the amendment of April 25, 1947, and to numerous paragraphs of the amendment of October 28, 1948, all grounds of demurrer being renewed upon the filing of the second and third demurrers. Further reference to the grounds of demurrer will be found in the opinion.

DUCKWORTH, Chief Justice. (After stating the foregoing facts.

1. While three separate judgments were rendered and excepted to, the only judgment which requires consideration here is that which overruled the demurrers to the petition as finally amended and to the last amendment. This is true for the reason that, when the original petition was amended after being demurred to, the questions raised by the first demurrer became moot, and the demurrer became extinct or nugatory, and when the petition as then amended was demurred to and again amended, the second demurrer likewise became extinct or nugatory. Powell v. Cheshire, 70 Ga. 357, 360 (48 Am. R. 572); Livingston v. Barnett, 193 Ga. 640 ( 19 S.E.2d 385); Hughes v. Purcell, 198 Ga. 666 (1) ( 32 S.E.2d 392); Mooney v. Mooney, 200 Ga. 395 (2) ( 37 S.E.2d 195). The demurrer to the petition as finally amended, renewing all previous grounds of demurrer and adding other grounds of demurrer, is, therefore, the only one which requires consideration on the exceptions of the defendant, the grounds of demurrer having been generally referred to in the foregoing statement of facts.

"Specific performance is not a remedy which either party can demand as a matter of absolute right, and will not in any given case be granted unless strictly equitable and just. Mere inadequacy of price may justify a court in refusing to decree a specific performance of a contract to bargain and sale; so also may any other fact showing the contract to be unfair, or unjust or against good conscience. And in order to authorize specific performance of a contract, its terms must be clear, distinct, and definite." Shropshire v. Rainey, 150 Ga. 566 (2) ( 104 S.E. 414); Coleman v. Woodland Hills Co., 196 Ga. 626 (1) ( 27 S.E.2d 226). It is the general rule that the petition must allege the value of the services to be rendered and also the value of the property to be willed, so as to show that the contract sought to be enforced is not unfair or unjust or against good conscience. Johns v. Nix, 196 Ga. 417, 418 (2) ( 26 S.E.2d 526); Matthews v. Blanos, 201 Ga. 549, 562 ( 40 S.E.2d 715). Exceptions exist in cases where one goes into the home of a near relative agreeing to nurse and give the other personal, affectionate, and considerate attention such as could not be readily procured elsewhere, and where the value of such services could not be readily computed in money. Potts v. Mathis, 149 Ga. 367, 370 ( 100 S.E. 110); Brogdon v. Hogan, 189 Ga. 244, 250 ( 5 S.E.2d 657); Bullard v. Bullard, 202 Ga. 769 (1) ( 44 S.E.2d 770).

Tested by the above-stated principles of law, the petition is not subject to the general ground of demurrer that no cause of action was set forth against the defendant; but, on the contrary, it sets out clearly, distinctly, and definitely facts which would authorize specific performance of the alleged contract. It alleges that about 1930 the petitioner entered into a contract with his grandmother whereby it was agreed that, if he would make his home with her and render her such services and assistance from time to time as she required, she would will him described real estate. It alleges with particularity her requirements and his full compliance therewith and the failure of the grandmother to fulfill her promise. It alleges the value of the services rendered, and though it fails to set forth the value of the real estate to be devised, the near relationship of the contracting parties brings the case within the exception to the general rule.

Under the allegations of the petition as amended as to the defendant not being under bond, his insolvency, and his liability for rents and profits from the property since February 23, 1945, and that unless a receiver be appointed to take charge of the property involved, the petitioner will suffer irreparable loss, a case is also made for the appointment of a receiver and an accounting in equity, since such full relief could not be afforded by the court of ordinary. McCord v. Walton, 192 Ga. 279 ( 14 S.E.2d 723).

But it is urged in one ground of general demurrer that the petitioner, who is shown to have been a boy of about nine years of age at the time of entering into the alleged agreement, was incapable of contracting and, hence, the present action cannot be maintained. However, the Code, § 20-202, declares that "The exemption of the infant is a personal privilege. The party contracting with him may not plead it, unless he was ignorant of the fact at the time of the contract; nor may third persons avail themselves of it as a defense." It could not reasonably be said that the grandmother was ignorant of the petitioner's infancy at the time of the alleged contract, and it does not lie in the mouth of her executor, who stands in her shoes, to urge the disqualification to contract.

Another ground of general demurrer is that the court of equity was without jurisdiction to set aside the will, which had been probated in common form in the court of ordinary. While recognizing the principle of law contended for, it is clear that no attempt is being made by allegations and prayer to set aside the will, although it is alleged to be fraudulent in its failure to devise to the petitioner the property here sought to be acquired. A decree of specific performance would not oust the defendant executor or interfere with his administration of the estate except in respect to the property decreed to belong to the petitioner.

The general ground of demurrer, contending that the court of equity was without jurisdiction to interfere with the administration in the court of ordinary "for the purpose of attacking the validity of such will," is likewise without merit, since no attempt is being made to attack the validity of the will itself, but the petitioner is merely asserting a right to specific performance so as to have vested in him title to property which was by the will devised to another.

The ground of general demurrer that the petitioner cannot maintain the present action, since he has not renounced his legacy under the will, is not well taken. The Code, § 37-502, provides: "When a testator has attempted to give property not his own, and has given a benefit to a person to whom that property belongs, the devisee or legatee shall elect either to take under or against the will." In construing that section this court, in Lamar v. McLaren, 107 Ga. 591, 604 ( 34 S.E. 116), said: "To raise a case of election a person must be entitled to one of two benefits, to each of which he has legal title, but to enforce both would be unconscientious and inequitable to other having claims upon the same property or fund. He must have legal title to both benefits and have the right to enforce either at his election. . . Now, if Henry J. Lamar Jr. were required to elect between his legacy under the will and his mere claim to an interest in the business of Henry J. Lamar Sons, that is between his legacy and a lawsuit, and he should elect to take his claim, or the court should force him so to elect, and he should, upon a subsequent trial for the enforcement of his claimed partnership interest, fail, for any reason, to establish the same, then there would be no one to compensate, as in such event there would be no defeated or disappointed legatees, but, on the contrary, the other legatees would get the very property he claimed." See also First National Bank c. Co. v. Roberts, 187 Ga. 472 (4) ( 1 S.E.2d 12). The facts in the present case place the petitioner in precisely the same legal position in which Henry J. Lamar Jr. stood in the case just cited. The petitioner now has a lawsuit, a mere claim, which might be defeated when brought to trial; and, in that event, if he had been required to elect as a condition precedent to instituting this action and as a consequence had renounced his legacy, all other legatees under the will would thereupon stand unharmed and the estate would hold the property which under the will now belongs to the petitioner. It is very clear that the meaning and intent of the Code section above cited, as construed by this court, is designed for the purpose of making sure that a legatee shall not be permitted to hold onto his own legacy under a will and at the same time deprive another legatee of property given him under the will. It is not intended and should not be construed to mean that a legatee placed in the situation of the present petitioner must speculate by electing to take what he believes to be a good claim to property, and at that period of pure chance relinquish his unquestioned title to the property under the will. On the other hand, the obvious intent of the Code section is to prevent such legatee from taking both the property going to him under the will and the property which he claims. There is an additional consideration which must not be overlooked in the present case. Specific performance not being an absolute right and being a remedy which equity will deny if to grant it would be against good conscience, specific performance of the alleged contract in the present case would not be decreed if to do so would allow this petitioner to acquire both that property and the property given to him under the will. We think however, that the condition contemplated by the Code, where an election is mandatory, will exist in the present case only when by a judgment of the court the petitioner acquires legal title to the property which he seeks; and by the very act of praying for and obtaining such a decree of title the petitioner will have thereby made an election to renounce his legacy under the will, and the requirements of the Code section will thus be satisfied. In view of this construction, the petitioner is not required to make an election at this time, and the election to take the title by specific performance of the contract when that is an accomplished fact will deny to him any right or title in the property given him under the will. Accordingly, the petition here is not subject to the ground of demurrer asserting that the petition is fatally defective in that it does not recite an election to take the property sued for and a renunciation of the property given him under the will.

2. Voluminous special demurrers were urged by the defendant, but upon careful examination they have been found to be without merit and not of such importance as to be set forth in detail. Without unduly encumbering the record, their nature may be understood by the following references and rulings. No misjoinder of parties defendant is shown. Under the facts alleged it was proper to sue the defendant in his individual capacity and also as representative of the estate of the deceased. Goodroe v. C. L. C. Thomas Warehouse, 185 Ga. 399 (1) ( 195 S.E. 199); Walters v. Suarez, 188 Ga. 190 (3) ( 3 S.E.2d 575). No misjoinder of causes of action is shown. The petitioner is seeking specific performance of an oral contract, but is not, as contended by the demurrant, attempting to set aside a will which has been probated in common form in the court of ordinary, though it is alleged that its execution was a fraud upon the petitioner. An order of court granting specific performance with reference to the property here involved would not prevent the defendant, as executor, from performing his duties under the will with reference to any other property of the estate. While there is a prayer that the defendant be enjoined form attempting to probate the will in solemn form, it is an idle prayer and may be treated as surplusage, since it is not shown that any attempt will be made to probate the will in solemn form. Many special grounds complain that designated allegations of the petition are vague and indefinite, but are subject to the criticism that they fail to point out wherein the defect exists. Other grounds urge that specified allegations are merely conclusions of law or fact, but are without merit. Various special demurrers complain that certain allegations are irrelevant and immaterial, but fail to point out the specific infirmity. Other special grounds of demurrer complain that stated allegations of the amendment of April 25, 1947, were respectively not germane, not a part of a cause of action, were conclusions, and insufficient to constitute any part of a cause of action and to support a charge of insolvency against the defendant, all of which grounds have been found to be without merit. The same is true as to similar complaints made to allegations of the amendment of October 28, 1948.

It follows from what has been said that no error is shown in the judgment of the court in overruling the demurrers.

Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents.