Opinion
14795
December 29, 1938.
Before STOLL, J., Williamsburg, June, 1938. Affirmed.
Suit by L.C. Baylor and another against May Bath and another, to enforce performance of an alleged oral contract to make a will. Judgment for plaintiffs, and defendants appeal.
The report of the Referee follows:
This suit was brought to enforce the performance of an alleged oral contract to make a will. The action was commenced on January 16, 1937. The contract alleged in the complaint is embodied in Paragraph 4 thereof, and is as follows: "That in the early days of November, 1933, the said H.O. Pipkin, on the one hand, and L.C. Baylor and Elizabeth F. Baylor, on the other, made and entered into a contract whereby it was then agreed that the plaintiffs would move into the residence on the said H.O. Pipkin lands and would occupy the kitchen, dining room and one bedroom of said residence, and would furnish and prepare meals for the said H.O. Pipkin, and would look after his comfort and his laundry, and would nurse him during his illness as long as the said H.O. Pipkin should live, and the said H. O. Pipkin on his part, in consideration of said services during his life time agreed to will the said plantation owned by the said H.O. Pipkin to the plaintiffs, or the survivor of them, in fee simple."
The plaintiffs allege the full performance by them of their part of the contract, and that although diligent search has been made for such will, none could be found.
The defendants in their answer deny the making of the alleged contract, and plead the statute of frauds in bar of the action.
It is admitted that the defendant, May Bath, as the niece of H.O. Pipkin, deceased, is his sole heir-at-law.
Two issues are made by the pleadings, casting upon plaintiffs the burden of proving by the greater weight of the evidence.
First. The making of the alleged agreement.
Second. Performance by plaintiffs of the obligations assumed by them under the contract.
These two questions will be discussed in the order stated above.
As to the existence of the contract itself, generally speaking, the essential elements of any contract are a contractual intent, followed by an actual meeting of the minds of the parties and accompanied by a valid consideration. Provided the requisite certainty and definiteness as to the subject-matter is also apparent, the foregoing basic elements are sufficient to constitute an enforceable contract to make a will. And such a contract, under settled principles of law, may be either oral or written. As stated, it is with an alleged parol agreement that we are concerned here.
The questions arising under the pleadings and the evidence in this case are factual and are controlled by well established legal principles. It is conceded that the present action is one of equitable cognizance, and that the Court in the exercise of its equitable powers may enforce specific performance of a contract of the character relied on by plaintiffs, provided it has been taken out of the statute of frauds, Code 1932, § 7044, under the doctrine of part performance.
The record reflects the following undisputed facts: H.O. Pipkin was a bachelor, and at the time of his death in October of 1936 was about sixty years of age. He had owned for a number of years a tract of land situate in Williamsburg County, containing approximately three hundred acres, upon which there had long been a substantial residence which had been his home. On this farm, for some years previous to 1934, Mr. Pipkin had had a number of share croppers or tenants who had planted and cultivated a variety of crops. He also owned on this property a pecan orchard of considerable size, as well as an apple and pear orchard near the residence. Mr. Pipkin, although a college graduate, was not a practical or experienced farmer and had no mechanical aptitude. For many years he was engaged in clerical work as an employee in the store of F. Rhem Sons, and later he was elected magistrate for the section of Williamsburg County in which he resided. The territory included in his district was about twenty miles in diameter, and the major portion of his time during the latter years of his life was consumed with his magisterial duties. For several years before he died he was in failing health and needed the services of a woman's hand. His only close relative was his niece, the defendant, Mrs. Bath, from whose husband he had become estranged. While there appears to have been no estrangement between him and his niece, their relations had never been intimate, and they saw each other only at rare intervals.
In the fall of 1933, the Baylors moved into the Pipkin home, where they remained until his death three years later. During that period, L.C. Baylor operated the farm under a share crop agreement with Mr. Pipkin, the further agreement being that Mrs. Baylor would serve as housekeeper for Mr. Pipkin as long as the arrangement should prove mutually satisfactory. For these services the Baylors were to receive one-third of all crops produced on the farm. At the time of Mr. Pipkin's death in October, 1936, no settlement had been made with the Baylors for their share for the crops for that year, and on November 21, 1936, L.C. Baylor and Elizabeth F. Baylor brought an action in this Court against the Administratrix of the Estate of H.O. Pipkin, deceased, demanding an accounting and judgment for the amount due them from the proceeds of the 1936 crops. This proceeding was prosecuted to final judgment (while the instant action was pending) resulting in a decree dated March 6, 1937, for judgment for plaintiffs for the sum of $259.10.
With the situation of the parties thus depicted, we are faced with this inquiry: Placing the burden of proof upon plaintiffs, does the evidence show the existence of the contract as alleged by them? The witnesses on each side offer conflicting statements on this point, and an analysis of the evidence touching the question is therefore expedient.
Among the witnesses who testified for plaintiffs, the most clear-cut statement as to the existence of the alleged agreement between plaintiffs and H.O. Pipkin is found in the testimony of Butler Mitchum. Having testified that he had known Mr. Pipkin all his life, he recited the following conversation which occurred between them during the year 1935: "I said: `Hugh, it is a gracious pity that you didn't get married.' He says: `Why?' I says: `You have a nice home.' He says: `I thought one time I was going to get married but for some reason I got broken up.' I said: `I suppose you will leave your property to Mrs. Bath,' and he shook his head and said that was not his idea. He said: `I made a proposition to Mr. Baylor and his wife if they would come here and take care of my house and do my mending and so forth, I would give them the property, if they outlived me, I would leave it to them.'"
On this point the testimony of other witnesses on behalf of plaintiffs was to the following effect:
W.D. Morris, in answer to the question "Did you ever hear Mr. Pipkin say what he was going to do about his property? replied "He said he was going to see that Mr. Bath didn't receive any of his property and that he was leaving Baylor and his wife to continue on as they were — he was going to leave this property to them." This witness had known Mr. Pipkin all his life and had served as his constable for a period of two years — up to approximately six weeks preceding Mr. Pipkin's death. He testified also as to an estrangement which existed between Mr. Pipkin and the husband of the defendant, Mrs. Bath.
F.S. Rogerson had known Mr. Pipkin for about twenty-three years, and he testified that in July, 1936, Mr. Pipkin, during the course of a conversation between the two, had said: "Mrs. Baylor and Lee was staying with him and he had promised to leave everything to them if they would stay with him during his lifetime, and he thought that was best."
The witness, S.D. Tisdale, testified that he is seventy years of age and had been a life-long acquaintance of Mr. Pipkin. He related the following conversation between himself and Mr. Pipkin: "The day I went there to a trial he told me to go to dinner with him. We went in to dinner and he carried me into the kitchen. After dinner he carried me out to his office. Me and Hugh always joked with each other. When I came out from dinner I asked Hugh why he didn't get married. I said: "Who will you leave this property to if you don't get married?' He said: "I have got as nice people here as I need in my home. I got one niece and I offered it to her if she would stay with me. I got some people here and they are just as nice and Mrs. Bet is as nice a woman as I ever had in my home in my life to take care of my property. She is a nice cook and a nice housekeeper, and I got somebody to leave my property to when I die.'" The witness then added: "He said if they stayed with him, Mrs. Baylor and Lee Baylor, he was going to leave it to them."
The testimony of E.L. Fly was to the effect that in September, 1936, Mr. Pipkin had said to him that "Mr. Baylor and his wife were the best people he had ever had any dealings with and that Baylor's wife treated him as though she was his daughter, and he said when the election was over — he was in the race for Magistrate at the time — that he was coming up here and fix things up so that he could leave what he had to Baylor and his wife."
None of these witnesses are related in any way to either of the plaintiffs. There is no apparent reason for the existence of any bias or prejudice on the part of any of them.
The testimony recounted above is supported and in effect corroborated by one of the defendant's witnesses, Frank Green: This witness was asked on direct examination whether Mr. Pipkin had made any statement to him of what disposition he was going to make of his property, and he replied: "He didn't said much about his business. One day he said Miss May was the only niece he had. He said everybody would be surprised to know who would get his property."
Opposed to this evidence in support of plaintiffs' contention is the testimony of three of the defendants' witnesses, S.T. Nesmith, Mrs. Maggie E. Foxworth, and Mrs. A.G. Foster. Two of them are related by blood to Mrs. Bath — Nesmith being her second cousin, and Mrs. Foxworth being her mother. Giving full weight to their testimony I do not think it is of equal preponderance with the evidence submitted by plaintiffs. The statements made by these witnesses tend to negative the existence of the contract alleged by plaintiffs', in that they point to an intention on the part of Mr. Pipkin to recognize Mrs. Bath, in the disposition of his property, as his sole heir. As stated, the greater weight appears to me to be found in the evidence on the other side of the question. With particular reference to the testimony of Mrs. Foxworth, there is nothing therein to show conclusively that the statements attributed by her to Mr. Pipkin were not made previous to the date of the alleged agreement with the Baylors.
The defendants stoutly maintain that the evidence herein referred to constitutes at the most nothing more than the declaration of an intention by the decedent, and that for this reason it is not sufficient to show the existence between him and the plaintiffs of a valid agreement to devise his property to them. I think when all the evidence on this point is considered, in the light of the situation of the parties, much more than a mere intention is shown. The rule by which a contract of this character must be tested is clearly stated in the case of White v. McKnight et al., 146 S.C. 59, 143 S.E., 552, 59 A.L.R., 1297, as follows [page 555]: "The relief, when the alleged promise is to make a will, is confined to the first class of contracts: Legal contracts — where the minds of contracting parties meet upon the same terms: `Where there is an intentional offer on one side, and an intentional acceptance on the other' — deliberately entered into by the decedent."
Practically to the same effect is the following statement found in 68 C.J., Sec. 188: "With such a contract, as with others, mutual assent or agreement to the terms, manifested by a sufficient offer and acceptance, is an essential element There must be a contractual intent; a mere intention to make a particular disposition of property, not reduced to contract, is not enough. The minds of the parties must meet as to the exact terms and conditions of the contract. There must be some positive promise or agreement, either an offer intentionally designed as the basis of a bargain, or a representation intentionally made to induce, and which does induce, action in a particular manner. Mere statements, oral or written, of an intent to give property by will to another do not ordinarily amount to an offer to do so."
There is present in this case the positive statement, attributed to Mr. Pipkin, that he had made a definite offer to the Baylors whereby, in consideration of their caring for him in his home for the remainder of his life, he would, if they survived him, devise the property to them. Again he is quoted as having made them a "promise" to that effect. The fact that the Baylors moved into his home in the fall of 1933, and there remained for the following three years, up to the time of his death in the fall of 1936, is evidence to show the acceptance by them of this offer. The minds of the parties apparently met upon the basis of this offer and acceptance, leaving as the only other element needed to make the oral agreement enforceable in equity, the performance by plaintiffs of their part thereof. It must be borne in mind that Mr. Pipkin at this time was well past middle life and was in failing health. He was a bachelor, with no close relative except his niece, Mrs. Bath, with whom he had never been intimate. Under these conditions the proposal which he made to the Baylors was reasonable, and one which the circumstances naturally suggested. The condition attached to the offer was clear, and the consideration was expressed with certainty. It is urged by the defendants that the evidence fails to identify the subject-matter of the agreement; that in this particular it is indefinite and uncertain, and therefore unenforceable. It is true, none of the evidence furnishes an exact or detailed description of the property alleged to be covered by the contract. But this would not necessarily render the agreement void, if the land can be identified and located with certainty. The plaintiffs in their complaint allege that H.O. Pipkin at the time of his death owned a tract of land in Williamsburg County containing about three hundred acres. This the defendants admit, and in their answer they set forth an accurate description of the 300-acre tract. So far as the record discloses Mr. Pipkin owned no other land. It is clear enough from the entire record that this 300-acre tract is the property upon which Mr. Pipkin and the Baylors lived. Had he owned one or more other parcels of land, there could be opportunity for confusion in attempting to identify the subject-matter of the agreement. But when Mr. Pipkin referred to "this property" and "my property," and when he spoke of leaving "everything" and "what he had" to the Baylors, the language employed by him necessarily related to the 300-acre tract. There is nothing else to which his remarks could be referred.
I, therefore, conclude, that plaintiffs, by the greater weight of the evidence, have established a contract certain and definite in all its essential particulars, by the terms of which, for a valid consideration, H.O. Pipkin agreed to devise his property to plaintiffs.
The question remaining to be answered is whether plaintiffs have proven performance of their part of this agreement. There is much conflict in the testimony on this point, I heard the testimony of all the witnesses, and have since read the transcript very carefully. I shall not further amplify an already lengthy report by giving a detailed review of this evidence. Again I think the greater weight is found on plaintiffs' side. Much of the testimony offered on behalf of defendants comes from witnesses closely related by blood to Mrs. Bath, while all the witnesses on the other side, aside from plaintiffs themselves, appear to be completely disinterested. My conclusion on this question is that the evidence shows, by the greater weight thereof, that plaintiffs fully performed their obligations under the contract, by taking care of the home while residing with Mr. Pipkin therein during the remainder of his life, and by providing for his comfort and welfare according to the terms of the agreement entered into between them.
I, therefore, recommend: That the prayer of the complaint be granted, and that the plaintiffs, by a proper decree of this Court, be adjudged the owners in fee simple and vested with the legal title to the premises described in the complaint herein.
Respectfully submitted, R.W. SHARKEY, Referee.
Messrs. Lee Shuler, for appellants, cite: As to evidence of agreement to make mutual wills: 73 S.C. 155; 53 S.E., 79; 131 S.C. 416; 127 S.E., 719; 104 S.C. 496; 90 S.E., 188; 107 S.C. 233; 92 S.E., 465; 21 S.C. 112; 122 S.C. 400; 115 S.E., 633; 134 S.C. 54; 131 S.E., 319; 100 S.C. 348; 87 S.E., 878; 22 S.C. 468; 7 Rich. Eq., 383. Consideration: 164 S.C. 56; 162 S.E., 68; 164 S.C. 361; 162 S.E., 329. Confirmation of report of Referee: 183 S.C. 75; 190 S.E., 104.
Messrs. A.C. Hinds and M.L. Meadors, for respondents, cite: Review of case where report of Referee confirmed by Circuit Court: 36 S.C. 19; 15 S.E., 332; 174 S.C. 69; 176 S.E., 355; 170 S.C. 61; 169 S.E., 659; 150 S.C. 244; 147 S.E., 874; 144 S.C. 70; 142 S.E., 36; 103 S.C. 307; 88 S.E., 354; 11 S.C. 29; 183 S.C. 75; 190 S.E., 104. Performance of contract: 25 R.C.L.; 310; 57 S.C. 60; 35 S.E., 415; 22 S.C. 454; 57 S.C. 559; 35 S.E., 757; 73 S.C. 155; 53 S.E., 79.
December 29, 1938. The opinion of the Court was delivered by
We have so recently stated the rules governing the powers of review by this Court in proceedings where the issues are equitable, and legal, and in which the Circuit Judge has concurred in the conclusions and findings of fact by the Special Referee or Master, we deem it unnecessary to here again repeat these rules. See Riley v. Berry, S.C. 199 S.E., 866, quoting Carolina Sav. Bank v. Ellis et al., 174 S.C. 69, 96, 97, 176 S.E., 355.
In the decree of the Circuit Judge ratifying, confirming and making the report of the Referee the judgment of the Court of Common Pleas, appears the following: "The Referee has written a strong Report, and there is abundant evidence to support his findings and recommendation. While of course the testimony on some features of the case is conflicting, there is ample testimony to substantiate each of the Referee's conclusions. Under these circumstances, I am bound by the decision of the Supreme Court of this State in the case of Mitchum v. Mitchum, 183 S.C. 75, 190 S.E., 104, and the authorities therein cited." (Italics added.)
In the Riley v. Berry case, supra, the same Circuit Judge referred to the Mitchum case, in confirming the report of the Special Referee. The opinion in that case reads in part as follows (page 868):
"But Appellant contends that the Circuit Judge held that he was bound under the authority of Mitchum v. Mitchum, 183 S.C. 75, 190 S.E., 104, to confirm the report of the Special Referee, and therefore such finding was influenced or controlled by error of law. We have hereinbefore set out the portion of the order appealed from which refers to the Mitchum case, and cannot presume that the Circuit Judge intended to convey more than that the Special Referee `saw the witnesses, heard the testimony delivered from the stand, and had the benefit of that personal observation of and contact with parties and witnesses which may be of peculiar value in arriving at a correct result in a case of this character,' and that he could suggest no reason for imperatively requiring him to set aside the report of the Special Referee. Furthermore, it will be noted that the sentence in his order following the reference to the Mitchum case, reads as follows:
"`I have duly considered all of the matters brought to my attention by counsel engaged in the cause and also the entire record. (Italics added.)
"We must assume that the learned Circuit Judge was fully cognizant of and thoroughly understood the holding in the mitchum case, and would not have confirmed the report of the Special Referee had he reached a different conclusion. In fact, as above pointed out, his order declares that he had only considered the entire record."
We desire to here and now settle any apparent misunderstanding of the holding in the said Mitchum case. That case in no wise changed the law as it existed. When an appeal is taken to the Circuit Court from the conclusions of law and findings of fact by a Referee or Master, it is the duty of the Circuit Judge to carefully review the entire record and, after giving due weight to the fact that the Referee or Master "saw the witnesses, heard the testimony delivered from the stand, and had the benefit of that personal observation of and contact with parties and witnesses which may be of peculiar value in arriving at a correct result," should he reach a conclusion different from that of the Referee or Master it is not only within his power, but it is his duty to reverse the conclusions and findings of the Referee or Master. Rendering a judgment for or against a litigant in the Court of Common Pleas, and in any other Court for that matter, is a solemn act, and not one of formality.
Without adhering to the rules governing the power of review by this Court, we have in this case carefully considered the record before us, and are of the opinion that the report of Honorable R.W. Sharkey, Judge of the Civil Court of Florence, Special Referee, should be confirmed, and that the decree of the Circuit Judge, ratifying and confirming same, should be affirmed.
All exceptions have been considered and are overruled, and the judgment of the Court of Common Pleas is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.
ON PETITION FOR REHEARING
Rehearing denied December 29, 1938.
There was ample testimony in the record to warrant the finding by the Special Referee that H.O. Pipkin had made an agreement or contract to make a will, and his holding thereabout was therefore affirmed.
The only information concerning a share-crop agreement contained in the Transcript of Record was a short statement to this effect in the "Statement," and the reference thereto in the report of the Referee. There is no exception which raises the issue that there was no consideration for the contract to make a will by reason of the alleged share-crop agreement requiring the almost identical services to be performed.
In the opinion filed, we were careful to point out that by reason of the apparent misunderstanding by the Circuit Judge of the holding in the Mitchum case, we were not adhering to the rules governing the power of review by this Court, and that we had carefully considered the record before us.
Petition refused.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.