Opinion
15739.
APRIL 15, 1947.
Injunction. Before Judge Harper. Sumter Superior Court. April 6, 1946.
R. L. LeSueur and R. L. Maynard, for plaintiffs in error.
A. H. Gray and Phillip Sheffield, contra.
Counsel for the plaintiffs in error have succinctly stated the issues thus: "The case presents these two questions: (a) Can a husband and wife, each of them owning separate estates [in realty], enter into an [oral] agreement whereby they relinquish their right to inherit from each other, upon the consideration that the heirs of each will take their respective estates and that neither of them will execute a will directing the disposition of their estates? (b) And, where the husband, relying upon such agreement, did not make a will and predeceased his wife, and where the wife, after the death of her husband, proclaimed and admitted said agreement and expressed orally a desire and determination to carry out said agreement, should a court of equity enforce such mutual covenant and decree the title to the properties comprising the estate of the husband to be in his heirs [referring to his nieces and nephews]?" The words enclosed in brackets have been inserted because there was no dispute as to these facts. Held:
Both questions propounded by counsel are answered in the negative. Such a contract is within the statute of frauds; and there is not here revealed such part performance, or other circumstances, as would take the contract without the statute. Code. § 20-401. Compare Hammond v. Hammond, 135 Ga. 768 ( 70 S.E. 588); Jones v. Robinson, 172 Ga. 746 ( 158 S.E. 752); Moore v. Segars, 192 Ga. 190 ( 14 S.E.2d 752). Moreover, the contract was executory and testamentary in character. For these reasons without reference to others which might be given, the alleged oral contract was unenforceable, and the judgments excepted to were not erroneous. This case is clearly distinguishable from such cases as Holmes v. Liptrot, 8 Ga. 279; McCord v. McCord, 19 Ga. 602; and Sheppard v. Sheppard, 22 Ga. 426, where the contracts involved were marriage settlements, and the contracts were in writing. Judgment affirmed. All the Justices concur.
No. 15739. APRIL 15, 1947.
The record reveals the following facts: G. W. Glisson and his wife died after reaching advanced ages. There were no children as a result of their marriage. Glisson died intestate on March 13, 1944, while owning the several lots of land now in litigation. His wife was appointed administratrix of his estate, administered it, and was discharged. She died, while in possession of the lands, on December 25, 1945, after having executed a will in which she devised all of her property to her nephew, Frank Driver, naming him as executor of her will. The will was probated in solemn form, and Driver qualified as executor. Thereafter, the defendant, Kinyon D. Griffin, undertook to exercise possession of a portion of the lands. Driver brought the present suit, alleging in part the foregoing facts and seeking to restrain the defendant from trespassing on the lands and from interfering with the plaintiff's tenants, who were occupying the lands.
The defendant answered, claiming ownership of the lands. An intervention was filed by numerous parties, who alleged that they "together with Kinyon D. Griffin (the defendant) are the next of kin of G. W. Glisson, they being nieces and nephews of said G. W. Glisson."
In the answer and intervention, it was alleged that title to the lands was claimed by the defendant and the intervenors by virtue of an oral agreement entered into between G. W. Glisson and his wife in 1937, the agreement being in effect, as stated by counsel for the plaintiffs in error in their brief, "that the husband and wife would not inherit from each other, they both owning separate estates. They further agreed that, in the event the husband predeceased the wife, the wife should have the use and enjoyment of the husband's estate for and during her natural life and, at her death, possession of the estate of the husband should go to the husband's heirs. It was likewise agreed that, in the event the wife predeceased the husband, the husband should have the use and enjoyment of the wife's estate for and during his natural life and, at his death, possession of the estate of the wife should go to the wife's heirs."
General demurrers to the answer and the intervention were sustained, and a general demurrer to the petition was overruled. Exceptions pendente lite were duly preserved to these rulings. The case came on for trial, and by agreement of counsel for the parties was submitted to the trial judge without the intervention of a jury. A judgment was rendered in favor of the plaintiff. To this judgment the defendant and the intervenors excepted, also assigning error on the exceptions pendente lite.