Opinion
17575.
ARGUED SEPTEMBER 10, 1951.
DECIDED OCTOBER 10, 1951. REHEARING DENIED NOVEMBER 16, 1951.
Equitable petition. Before Judge Mallory C. Atkinson, Bibb Superior Court. June 21, 1951.
Hall Bloch and Denmark Groover Jr., for plaintiff in error.
Oliver, Oliver Davis and Martin, Snow Grant, contra.
The judgment of the court below overruling the general demurrer to the petition in the instant case was error, and must be reversed.
No. 17575. ARGUED SEPTEMBER 10, 1951 — DECIDED OCTOBER 10, 1951 — REHEARING DENIED NOVEMBER 16, 1951.
Laura Wing Falligant, a minor, through her father as next friend, filed her suit in equity for specific performance against First National Bank Trust Company as trustee under the will of Mrs. Laura Wing. The allegations of the petition as to the contract sought to be specifically performed were as follows: "Augustus M. Wing and his wife, Mrs. Laura Baker Wing, were childless, and in June of 1936 when Mr. and Mrs. Wing were visiting the family of plaintiff in Savannah, plaintiff's mother informed Mr. and Mrs. Wing that she was expecting a baby in October of that year. Mrs. Wing immediately stated to plaintiff's mother that, if the expected child was a girl, she wanted plaintiff's mother to name the child after her, saying that, if she would name the child after her, she would provide a college education for her and would also give to the plaintiff all of her jewels at her death. On October 18, 1936, plaintiff was born, and pursuant to the request and in compliance with the promise previously made by Mrs. Wing, plaintiff's parents named her Laura Wing Falligant, and on the same day of her birth, Mr. and Mrs. Wing were notified of this fact by telegram as follows: `Laura Wing was born at 9:20.' Two days thereafter Mr. and Mrs. Wing came to Savannah to see plaintiff's mother and plaintiff, and at that time acknowledged the obligation to provide a college education for plaintiff and to leave to her all of her jewels at her death by reason of plaintiff's parents having named the plaintiff after her, and at that time Mrs. Wing signed her name in the baby book of the plaintiff under the heading of education. . Petitioner shows that the obligation of Mrs. Laura Baker Wing, as above stated, was repeated from time to time by Mrs. Laura Baker Wing and her husband to petitioner and his wife, and to petitioner's father and mother, and it was fully understood between the families that Mrs. Laura Baker Wing had obligated herself to set up a trust fund in the sum of four thousand ($4000) dollars to provide for the education of the infant. The obligation referred to above was the agreement which Mrs. Wing made with plaintiff's mother prior to her birth that, if she would name plaintiff after her, she would provide for her college education and give her all of her jewelry at her death, and in pursuance of that promise, after plaintiff was named after Mrs. Wing, Mrs. Wing stated to plaintiff's mother and her aunt that she would carry out the agreement to provide a college education by establishing a trust fund in the sum of $4000 for plaintiff's education, which promise she repeated on practically every occasion she visited plaintiff's family in Savannah and on the occasions plaintiff's mother, her father and her aunt visited Mr. and Mrs. Wing in Macon, said visits being at least once a year from the date of plaintiff's birth to the date of the death of Mr. and Mrs. Wing."
A general demurrer to the petition was filed and overruled, to which ruling exceptions were duly preserved. The trial of the case resulted in a verdict in favor of the plaintiff in the court below. A motion for new trial was duly filed and denied. Error is assigned on the judgment overruling the general demurrer and on the judgment denying a new trial.
The first question presented is whether or not the trial court committed error in overruling the general demurrer to the petition. We are confronted here with one of the prolific sources of litigation, and with a question that is generally a difficult one. An oral contract by the terms of which a person agrees for a valuable consideration that he will make a will giving property to the other contracting party may be enforced by specific performance in this State. See Banks v. Howard, 117 Ga. 94 ( 43 S.E. 438). The law, however, very properly has laid down some very strict rules governing the enforcement of any contract by specific performance. Specific performance of a contract will not be decreed unless "the contract be definite and specific, based upon a sufficient legal consideration, and the proof of it be strong, clear, and satisfactory." Pair v. Pair, 147 Ga. 754 ( 95 S.E. 295). This court has many times applied this rule of law. See Dwight v. Jones, 115 Ga. 744 ( 42 S.E. 48); Gordon v. Spellman, 148 Ga. 394 ( 92 S.E. 1006); Wall v. Wood, 174 Ga. 508 ( 163 S.E. 153); and Brogdon v. Hogan, 191 Ga. 647 ( 13 S.E.2d 666). If the contract is one entire contract, and one portion of the contract is indefinite, the entire contract fails. See O'Rear v. Lamb, 194 Ga. 455 ( 22 S.E.2d 74). "The fairness of a contract is usually to be determined as of its date, and the happening of subsequent events within the reasonable contemplation of the parties does not afford a defense." Whitehead v. Dillard, 178 Ga. 714 ( 174 S.E. 244).
These rules of law have many times been applied and rigidly enforced by this court in cases where the contracting parties are in life. Here we have a case where the lips of one of the contracting parties have been sealed in death. The effect of this contract is to deny to the deceased person the sacred right to dispose of her property by will as she desires. Chief Justice Duckworth speaking for the court in Salmon v. McCrary, 197 Ga. 281 ( 29 S.E.2d 58), so well stated the proposition in cases of this kind that we again quote his language: "While the rule may be said to be a strict or harsh one, it is rightly so. Let it be remembered that one who seeks specific performance of an alleged oral contract as against the estate of a decedent is, in effect, asking that property which would otherwise descend by inheritance, as fixed by the law, or by will as determined by the owner, be decreed to be in him. The law quite properly favors the disposition of property through the channels it has prescribed, and requires strict proof to divert it from those channels. When one dies, and is thus no longer able to manage his own estate, the law undertakes to stand as guardian for it and to see that it is legally disposed of, either to his heirs at law or to his legatees under a will as the case requires. In such confidence we live and die, protected in the safeguards established by the law."
Applying these rules of law to the allegations of the petition in this case, what do we find? The obligation of the deceased, according to the allegations of the petition, at the time the child was born and named was as follows: "Plaintiff's mother informed Mr. and Mrs. Wing that she was expecting a baby in October of that year. Mrs. Wing immediately stated to plaintiff's mother that, if the expected child was a girl, she wanted plaintiff's mother to name the child after her, saying that, if she would name the child after her, she would provide a college education for her and would also give to the plaintiff all of her jewels at her death." If there is a contract, it must be found in the above-quoted language. The petition alleges that, after the child had been born and named, and consequently the contract, if there was one, had been fully completed, the deceased talked at various times about providing a trust fund of $4000 to educate the child; but, under the allegations of the petition, this could not have been a part of the then completed contract, if there was one. In order to enforce this promise, there must have been a new consideration. It is conceded that there was no new consideration for this promise.
The question then is: Does this alleged contract measure up to the strict rules of law governing suits to specifically perform alleged contracts of this kind? What does "college education" mean? Black's Law Dictionary, p. 164, defines the word "educate" to mean: "To give moral, as well as intellectual and physical instruction." It is common knowledge that there are many kinds of colleges, and that the cost of different college educations varies. Was the college education to be in music, business, academic, professional, or some of the other college educations open to women?
It is insisted that this court in Moore v. Robinson, 206 Ga. 27 ( 55 S.E.2d 711), laid down the proposition that this court will take judicial notice that a college course in Georgia embraces four scholastic years of nine months each. This court simply held in that case that, where the caption of the act referred to a four-year college course of nine months each, the term "four year standard college course" occurring in the body of the act would be construed to mean what was said in the caption. But, even if the contention here insisted upon were true, it would make no difference in this case because "four scholastic years of nine months each" would not determine the kind or cost of the education intended.
From what has been said above, we are compelled to hold that the general demurrer to the petition should have been sustained. This being true, all that happened thereafter was nugatory.
Judgment reversed. All the Justices concur.