See Monroe v. Holleman, 185 So.2d 443 (Miss. 1966); Denson v. Denson, 203 Miss. 146, 33 So.2d 311 (1948); Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946); and, Price v. Craig, 164 Miss. 42, 143 So. 694 (1932). Our difficulty in the instant case is not so much the rule of law to be applied, as it is in finding facts from the evidence upon which to sustain the thesis claimed by the appellant.
Bourke, 160 Mass. at 197, 35 N.E. at 461. The oft discussed case of Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946) is not to the contrary, for in Johnston the testator had executed a will conforming to his oral agreement and the only question was whether he had the power to revoke that will. In this circumstance, the will was a writing signed by the party to be charged, thus satisfying the statute's evidentiary policy.
1981). The chancellor's holding that the 1980 will was void because of the breach of contract by the appellant was based on Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946). The often-quoted relevant holding in Tomme was discussed in Voss v. Stewart, 420 So.2d 761, 764-65 (Miss.
II. The Court erred in holding that the will of Mrs. Antionette Arnold, as originally drawn, was revokable and also erred in holding that the purported codicil entitled the appellees to the money belonging to Mrs. Antionette Arnold at the time of her death. Central Shoe Co. v. J.P. Conn Co., 160 Miss. 151, 133 So. 126; Fisher v. Kuhn, 54 Miss. 480; Jackson v. I.C.R.R. Co., 76 Miss. 607, 24 So. 874; Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730; Smith Co. v. Jones, 75 Miss. 325, 22 So. 802; Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 140; 57 Am. Jur., Secs. 35, 166-7 pp. 59, 148, et seq. Fant Bush, Holly Springs, for appellees.
An oral agreement to devise land by will, if enforceable at all, must be proved in clear, concise and unequivocal terms. Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730; Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806; McDaniel v. Johns, 45 Miss. 632; Strange v. State Tax Commission, 192 Miss. 765, 7 So.2d 542; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Tucker v. Whitehead, 59 Miss. 594; Jones v. Moseley et al., 40 Miss. 261; Russell v. Jones et al., 135 F. 929; Code of 1942, Sec. 264. Cunningham Cunningham, of Booneville, for appellee.
212 Miss. at 758, 55 So.2d at 450. In the case of Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946), this Court had under consideration an oral contract of a testator to make a will to a devisee in return for care, and after the will had been made, and the services rendered, the testator attempted to change the will by codicil and a second will. The question there was: "Is a will, executed in compliance with an oral agreement to execute it, irrevocable by the testator who had received the services and care agreed upon as a consideration therefor?" 199 Miss. at 345, 24 So.2d at 731.
er v. Bank of Holly Springs, 131 Miss. 55, 95 So. 129, 31 A.L.R. 698; Ogle v. Durley, 223 Miss. 32, 77 So.2d 688; Redmon v. Roberts, 198 N.C. 161, 150 S.E. 881; Stanley v. Sumrall, 167 Miss. 714, 147 So. 786; Strange v. State Tax Commission, 192 Miss. 765, 7 So.2d 543; Terre Haute Cooperage v. Branscome, 203 Miss. 493, 35 So.2d 537; 12 Am. Jur., Contracts, Sec. 81; 17 C.J.S., Contracts, Sec. 103; Clark on Contracts, Sec. 66; Vol. 1, Corban on Contracts, Sec. 148; Page on Wills, Sec. 1712. II. The contract being valid, the last will and testament of Mrs. Lexie Lewis Sadler, dated September 29, 1942, is irrevocable, and the will offered for probate is fraudulent and void insofar as it attempts to defeat the rights of appellants. Bolman v. Overall, 80 Ala. 541; Brooks v. Yarbrough, 37 F.2d 527; Denson v. Denson, 203 Miss. 146, 33 So.2d 311; Erwin v. Mark (Mont.), 73 P.2d 537, 113 A.L.R. 1064; Frierson v. Moorhead, 211 Miss. 811, 51 So.2d 925; Fuqua v. Mills, 221 Miss. 436, 73 So.2d 113; Johnston v. Toome, 199 Miss. 337, 24 So.2d 730; Ohlendiek v. Schuler, 299 Fed. 182; Old Ladies Home Assoc. v. Hall, 212 Miss. 67, 52 So.2d 650; Price v. Craig, 164 Miss. 42, 143 So. 694; In re Matter of Simmons, 247 U.S. 231, 62 L.Ed. 1094; Roehl v. Haumesser, 114 Ind. 311, 15 N.E. 345; Re Williams Estate, 101 Col. 262, 72 P.2d 476; 69 C.J., Wills, Sec. 2726; Page on Wills, Sec. 1707. III. The appellants herein are proper parties to enforce the contract.
III. Where an oral contract is made in California to make and publish a will devising to complainant one-half of such property as defendants' decedent should own at his death, the statute of frauds, made to prevent fraud, cannot be used as an instrument of fraud, and defendants are estopped as privies of decedent to plead the statute of frauds against specific performance when contract of peculiar parts has been executed by complainant to her irreparable change of situation in life. Andrews v. Aikens, 69 A.L.R. 8; Couch v. Cox, 181 S.E. 433; Denson v. Denson, 203 Miss. 146, 33 So.2d 311; Grant v. Long, 92 P. 940; Holsz v. Stephen, 106 A.L.R. 737; Holton v. Reed, 193 F.2d 390; Johnson v. Tomme, 199 Miss. 337, 24 So.2d 730; Monarco v. LoGreco (Cal.), 220 P.2d 737; Montgomery v. Moreland, 205 F.2d 865; Notten v. Mensing (Cal.), 45 P.2d 198; Price v. Craig, 164 Miss. 42, 143 So. 694; Profit v. Profit, 255 P.2d 25; Pugh v. Gressett, 136 Miss. 661, 101 So. 691; Roberts v. Wachter, 231 P.2d 540; Ryan v. Welte, 198 P.2d 357; Sancha v. Arnold, 251 P.2d 67; Seymour v. Oelrichs, 106 P. 88, 134 Am. St. 154; Walker v. Calloway, 222 P.2d 455; West v. Stainback, 240 P.2d 366; 49 Am. Jur., Secs. 524, 525, 578-79 pp. 821, 824, 885; 37 C.J.S., Secs. 217, 247, 250 pp. 713, 754, 762; Vol. III, Pomeroy's Equity Jurisprudence (3rd ed.), Secs. 1293, 1409 pp. 2590, 2780. IV. Justice and equity will not allow the late Malcolm N. McCaskill to use this widowed sister to the tragic extent of dissipating her substance, her credit and health in a many sided peculiar service for four years to drinking invalid to put him on his feet where he could come to northeast Mississippi where he assured her by solemn oral contract that if sh
Although no tender was required on the part of the appellee, in his prayer in the alternative for an accounting, he tendered "to do in such accounting whatever equity may require and to be charged by way of set off with whatever amount should be found due by him". No more by way of tender could possibly be required of him. Pratt v. Canton Cotton Co., 51 Miss. 470; Hunt v. Gardner, 147 Miss. 374; Grandberry v. Mortgage Bond Trust Co., 159 Miss. 460; Spengler v. Stiles-Tull Lbr. Co., 94 Miss. 780; Chandler v. Cromwell, 101 Miss. 161; R.B. Tyler Co. v. Laurel Equipment Co., 187 Miss. 590; Anding v. Davis, 38 Miss. 574; Ellis v. Berry, 145 Miss. 652; Carter v. Witherspoon, 156 Miss. 597; Johnston v. Tomme, 199 Miss. 337; Griffith Miss. Chancery Practice, 2nd Ed., Sec. 523. IV. The lower court did not err in overruling appellants' general demurrer; and no appeal from such decision lies in this case.
The trial court did address that question and concluded that a settlement agreement even though not dictated into the record and not reached in the presence of a presiding judge would nevertheless be enforceable even though it required execution of a deed to real property. The Chancellor reached a decision opposite of the position argued by Plaintiffs and the Mississippi Supreme Court did not reach that issue. The Defendants cite only one case, the case of Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946). Although this case did produce a result that is consistent with the result sought by Defendants, it did not address the question now before this Court.