Rape v. Lyerly

BRITT, Judge. Defendants contend the court erred in failing to grant their motions to dismiss the action, for summary judgment, and for [246] directed verdict. We will discuss some of the grounds argued by defendants in support of their motions. At the outset, defendants argue that Basil is a necessary party to this action. While denying that he is a necessary party, plaintiffs have moved in this court that they be allowed to file a disclaimer of interest by Basil. We have allowed the motion and the disclaimer has been filed. The theory of plaintiffs’ case is that their mother, Mildred, and Jim entered into a contract in 1959 whereby Mildred agreed to look after Jim and Pearl for the remainder of their lives and in return Jim agreed to convey by will certain real estate to Mildred. The first question that arises is whether the revoked will which Jim executed in 1959 and placed with Basil for safekeeping provided a sufficient memorandum of the agreement to comply with the Statute of Frauds. We hold that it did. The pertinent part of our Statute of Frauds, G.S. 22-2, provides that “(a) 11 contracts to . . . convey any lands, tenements or hereditaments, or any interest in or concerning them, . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith . ” Plaintiffs introduced the 1959 will of Jim as evidence of the written agreement between the parties. The provision of the will critical to this case is the fourth article quoted above. Our research has failed to reveal a case in which a North Carolina appellate court has held that a revoked will is a sufficient memorandum to satisfy the Statute of Frauds. However, our Supreme Court has held that a joint will between a husband and wife was a sufficient memorandum of the contract for the disposition of their estates to satisfy the Statute of Frauds. Mansour v. Rabil, 277 N.C. 364, 177 S.E. 2d 849 (1970); Olive v. Biggs, 6 N.C. App. 265, 170 S.E. 2d 181 (1969), cause remanded 276 N.C. 445, 173 S.E. 2d 301 (1970) ; but see Hicks v. Hicks, 13 N.C. App. 347, 185 S.E. 2d 430 (1971) in which the Court of Appeals held that a joint will which had been subsequently revoked was not sufficient to satisfy the Statute of Frauds. Underlying these decisions is the principle that the revoked will must state or make clear reference to the agreement so that the duties and considerations of the contracting parties is known. If there is no contractual language in the will, then it is insufficient to satisfy the Statute of. Frauds. Hicks v. Hicks, supra. [247] The Supreme Court was faced with the question in McCraw v. Llewellyn, 256 N.C. 213, 123 S.E. 2d 575, 94 A.L.R. 2d 914 (1962), but held that the revoked will in that case was insufficient for the following reasons (p. 217) : The writing must show the promise or obligation which the complaining party seeks to enforce. (Citations omitted.) “An aggrieved party may recover for the breach of a contract, made upon sufficient consideration, that the promisor will make him the beneficiary of a bequest or devise in his will, but such a contract must be established by the mode of proof legally permissibe in estabishing other contracts.” (Citation omitted.) “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.” (Emphasis added.) (Citations omitted.) See 1 Page on Wills sec. 10.12 (Bowe-Parker rev. 1960) ; J. Webster, Real Estate Law in North Carolina sec. 119 (1971) ; 57 Am. Jur. Wills sec. 187 (1948) ; 94 C.J.S. Wills sec. 111 (b) (1956) ; Annot., 94 A.L.R. 2d 921 (1964). Therefore, in order for Jim’s 1959 will to be sufficient it must “adequately express the intent and obligation of the parties.” We think the will does that. Jim clearly states the parties’ obligations. Jim promises to leave Mildred “all of my property” in return for Mildred obligating herself to take care of Jim and Pearl and also to pay certain sums to his other children. This leaves no question as to what the obligations of the parties were. We hold that the 1959 revoked will satisfies the memorandum requirement of the Statute of Frauds. The next question that arises is whether Jim’s legal obligation to devise the real estate terminated at the time of Mildred’s death in 1965; or, whether Jim’s failure to rescind within a reasonable time and his continuing to accept the services rendered by Basil and Mildred’s children constituted full acquiescence on Jim’s part, thereby making the children parties to the contract by substitution. We hold that the evidence was sufficient to support a jury finding that by Jim’s acquiescence, the children became parties to the contract by substitution. [248] No case is cited and our research has disclosed no precedent in this jurisdiction that provides clear direction. The nearest case in point appears to be Siler v. Gray, 86 N.C. 566 (1882) : In Siler, the court held that the parents could not force the administrator of their deceased child’s estate to care for them as the child had contracted to do because the agreement was a personal contract which died with the parties. However, the court held that the intention of the parties governs each case and there was no evidence in that case that the parties ever intended that there be a substitution of parties. In Burch v. Bush, 181 N.C. 125, 106 S.E. 489 (1921), Justice (later Chief Justice) Stacy stated that whether there is a personal contract depends upon the intention of the parties. Our review of decisions from other jurisdictions discloses that the question has been answered favorably to plaintiffs in several cases. The case nearest in point is Soper v. Galloway, 129 Iowa 145, 105 N.W. 399 (1905), where the evidence tended to show: One C.V.A. entered into a contract with his sister, T.S., and her husband, G.W.S., whereby it was agreed that the sister and her husband would move onto and operate C.V.A.’s farm, and would board and care for C.V.A. during the remainder of his natural life; that at his death, and in consideration of such service, they would become the owners of the farm. The sister, her husband and two children (plaintiffs in the action for specific performance) moved onto the farm and otherwise proceeded to comply with the contract. Fourteen years later, the sister died and her husband and the children continued to care for C.V.A. The next year, the husband died, and the plaintiffs continued to care for C.V.A. who died two years later intestate. Plaintiffs claimed the farm as substituted parties to the original contract. The court at pages 147-8 states the following rule: “It is a contention of defendants, made in argument, that the contract, if made, was purely personal in character, and for that reason terminated at once upon the death of the parent of plaintiffs. There is no merit in this contention. We need not determine what the rights of the parties would have been had (C.V.A.) refused to accept a continuation of service at the hands of plaintiffs. He did accept such service, and in view thereof, and of the relation of the parties, we think it must be said that within the understanding of each, such substituted performance was in compliance with the contract requirements, and to be followed by the same measure of rights which, had their death not inter [249] vened, would have accrued to the parents of plaintiffs. This conclusion has support in the following cases. (Citations omitted.)” In the case of Prater v. Prater, 94 S.C. 267, 77 S.E. 936 (1913), the court, faced with a similar situation, stated at page 280: “If M. A. Prater did not intend that the agreement should continue in force, it was his duty within a reasonable time after Drayton Prater died, to give her notice of such intention. From August, when he died, until January, when Mary R. Prater left, was certainly an unreasonable time for giving the notice to her.” The rule to be gleaned from these two cases is: Parties can be substituted in a personal contract when (1) the parties do not object, and (2) fully acquiesce in accepting the services performed by the substituted party. If a party does object to substituted performance he must rescind within a reasonable time so as not to injure the substituted party. See also, 1 Page on Wills sec. 10.25 (Bowe-Parker rev. 1960) ; 57 Am. Jur. Wills sec. 175 (1948) ; 94 C.J.S. Wills sec. 117(d) (1956). In the only case cited by defendants, Bourget v. Monroe, 58 Mich. 563, 25 N.W. 514 (1885), the facts are easily distinguishable from the facts in this case. In Bourget, the father immediately upon his daughter’s death repudiated the contract and excluded the husband from the house. For the reasons stated, we hold that the evidence was sufficient to show that Jim, by accepting the services of Basil and the plaintiffs in the place of Mildred, effectively substituted them in the original contract to the end that they are now entitled to specific performance of that contract. We have carefully considered the other contentions and assignments of error brought forward and argued in defendants’ brief and find them to be without merit. We hold that the controversy was properly submitted to the jury on appropriate issues at a trial in which there was no prejudicial error. No error. Judge Baley concurs. Judge Hedrick dissents.