McKeegan v. O'Neill

22 S.C. 454, 1885 S.C. LEXIS 43

• Court: Supreme Court of South Carolina
• Decided: April 21, 1885
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Chiee Justice Simpson.

John McKeegan, late of Charleston County, departed this life about August 10, 1881, at Charleston, unmarried and without children or lineal descendants. He died possessed of considerable estate, both real and personal, situate in Charleston and elsewhere in the state.' He left a will, in which his said estate was disposed of as follows : a house and lot in the city of Charleston was devised to a former slave of his, Robert Morrison, a legacy of $1,000 was given to the “Sisters of our Lady of Mercy,” in the city of Charleston, $500 to one Ella O’Neill, $500 to Bella O’Neill, $500 to Mary Janney, and $500 to the Very Reverend Daniel J. Quigley, and the remainder he devised and bequeathed to his executors upon certain trusts therein set forth, nominating Bernard 0'’Neill and the Very Reverend Daniel J. Quigley as his executors, both of whom qualified.

During the life of the testator he ivas seized and possessed of a certain estate in the County of Antrim, Ireland, commonly known and called ‘’Cloneymore.” This estate it seems he owned as far hack as 1839, which, under some arrangement, he permitted his brother, one Francis McKeegan, the father of the plaintiff, to occupy, and, as alleged in the complaint, free of rent or charge, except taxes, rates, and assessments, and also an annual allowance of ¿610 sterling to be paid to another brother, James Mc-Keegan, the said Francis having occupied the same under said terms from 1839 to 1875, when he died.

Shortly after the death of the said Francis, the plaintiff opened a correspondence with his uncle, the said John McKeegan, as to this estate, which resulted in a purchase of Cloneymore by the plaintiff at ¿61,400 sterling cash, which was paid and titles executed in fee simple.' The plaintiff alleges in his complaint that he was induced to make said purchase by a written agreement made by his uncle with him, that if he would purchase Cloneymore at the price of ¿61,400 sterling, at that time equivalent to $7,700, he, the said John McKeegan, would at his death give and leave him, the plaintiff, all he was worth; that is, all of the property, real and personal, of which he might die possessed; that, acting upon this promise and inducement, and at great inconvenience, sacrifice, and expense to himself, he did raise the said sum and paid the same to the agent of the said John Mc-Keegan, from whom he received title deeds to Cloneymore, in fee simple.

John McKeegan having disposed of his entire estate, as hereinbefore stated, to other parties than the plaintiff, the action below was instituted, in which the plaintiff demands judgment that the executors of the said John McKeegan may be compelled to perform the agreement above, and to pay over, transfer, and deliver all of the property of their testator to him, the plaintiff, in pursuance thereof.

The case was heard by his honor, Judge Kershaw, upon testimony taken by the master and reported to the court, who in an elaborate decree dismissed the complaint with costs.

The exceptions to the decree by plaintiff, appellant, are numerous, but they may be disposed of, we think, in the discussion of the following grounds: 1. What is the law applicable to a case of this kind, and did his honor lay it down correctly ? 2. Did the testimony bring the case under this correct principle ? And 8. Did his honor reach his conclusion as to the facts by the admission and influence of certain alleged incompetent testimony objected to by the plaintiff?

As to the first question, there is authority for the position that while a man may ordinarily by will dispose of his estate, either in whole or in part, at his pleasure, nay, even at his caprice, yet he may also bind himself to dispose of it in a certain way or to certain parties, and failing to do so, his agreement may be enforced against his legal representatives. This proposition is sustained by the following cases cited from our own reports: Izard v. Middleton, 1 DeSaus., 116; Grimke v. Ex'rs of Grimke, Ibid, 366; Rivers v. Ex’rs of Rivers, 3 Id., 190; Gary v. Ex'rs of James, 4 Id., 185; Caborne v. Godfrey, 3 Id., 514. Besides, it is supported by numerous English cases cited in appellant’s argument.

It is true, however, in all the cases, in view of the fact that a will is the free, voluntary, and uninfluenced expression of a testator as to the disposition of his property, which in fact he may make or not as he chooses, and when made revocable if he desires; that for one to be bound to dispose of his property in a certain way by will, the agreement or contract requiring him to do so must be established by the most satisfactory proof and after the strictest and most thorough examination of all circumstances attending it; or, as was said by Chancellor DeSaussure in Rivers v. Ex'rs of Rivers, supra, “To be sure, the court would be more strict in examining into the nature and circumstances of such agreements than any others, and would require very satisfactory proof of the fairness and justness of the transaction.”

The above proposition being conceded, we are led next to the inquiry: What is an agreement, and under what circumstances does it become binding on the parties? Agreements may be divided into two classes, distinguished by the mode in which they are made. 1. The ordinary agreement, where an intentional offer is made on the one side founded upon a sufficient consideration, and an intentional acceptance on the other, resulting in the meeting of minds upon the same terms. 2. “Where it is created by'representations made by one party and acts done by the other upon the faith of such representations. When an absolute, unconditional representation of something to be done in the future is made by one person in order to accomplish a particular purpose, and the person to whom it is made, relying upon it, does the acts by which the intended result is obtained and purpose accomplished, a contract is thereby concluded between the parties.” 3 Pom. Eq. Jur., § 1244.

The first is a contract at law and the second a contract in equity, and a disposition of property by will may be made the subject matter of either as well as any other subject matter. The following proposition laid down in appellant’s argument we think is a correct result from all the cases on this subject, i. e.: “That to make a will in a particular way, on proper consideration, is as much a subject of contract as any other, and he who makes a contract on this subject is as much bound thereby as he would be' by any other agreement on any other subject.” It is said, however, by Mr. Waterman, which is in accordance with the caution already adverted to, that when the subject of the contract is the disposition of one’s property by his will, “such a contract, especially when it is attempted to be established by parol, is regarded with suspicion and not sustained except upon the strongest evidence that it was founded upon a valuable consideration and deliberately entered into by the decedent.” Now, no error can be attributed to his honor, the Circuit judge, on the ground that he failed to recognize the possible existence in law of these two classes of contracts. On the contrary, he recognized both, but he failed to find facts suflicient for the application of either, and it was upon this ground that he dismissed the complaint.

We do not think, therefore, that the decree of the judge, when read as a whole, is obnoxious to the seventeenth exception. Was his finding error?' Generally, as we have had frequent occasion to say, in appeals in chancery cases, where the facts are found by the Circuit judge upon testimony, this court will not disturb such findings unless the manifest preponderance of the evidence is the other way. And if in this ease the findings of fact below rested entirely upon evidence, the rule referred to would be applicable. But the plaintiff here claims under what he styles a written contract, found in a certain letter of In's uncle, the intent of which is a matter of construction; and construction of instruments being a matter of law, the question whether John McKeegan made the agreement relied on by the plaintiff is fully before us, at least so far as it depends upon the construction of the letter in question. The letter referred to is as follows:

“Charleston, 22 March, 1876.

“Mr. F. McKeegan.

“Dear.Sir: This morning I got a letter from Mr.-McNeill and one from you, relating to Cloney. I have sent all the power of an attorney to Mr. Nelson, and title deed and map of Cloney, yesterday, according to Mr. McNeill’s letter of request. I have other papers pertaining to the.same which I will send, if wanted. My price for Cloney is 1,400 pounds cash, and to any one else 1,500 pounds sterling. Mr. Nelson takes charge of the sale, the same as if I were there. Whatever he does in the selling of Cloney is binding and right. Why did you not say what Cloney was worth in your letter, as I wanted you to do ? My price to you is already said on the other side, 1,400 pounds sterling cash, to any one else it will be 1,500 pounds, but you will get all I am worth at my death. Please let nothing happen the property until it is sold. JOHN McKEEGAN.”

It is proper here to notice with somewhat more particularity than above the facts and circumstances surrounding John McKeegan when this letter was written. As we have already stated, Francis McKeegan, Sr., the father of the plaintiff, went into possession of Cloney in 1839, and remained in possession until 1875, when he died. The plaintiff during this time had grown up and married, and was living- upon Cloney and cultivating a portion of it, paying part of the expenses attendant upon the possession. It was understood during all this time in the family of Francis, Sr., that at the death of John McKeegan Cloney would be theirs by will of the said John.

On the death of-Francis, Sr., the plaintiff immediately wrote to his uncle John informing him of that event, and also that his elder brother, Alex., would have a place, and, stating his own embarrassed situation, asked as a great favor to him that he might rent one-half of Cloney and half of the house, proposing to secure the rent, and saying that the other half would be sufficient for his mother and his brother John. This was November 8, 1875, two days after the death of his father. Receiving no answer, he then on December 30, 1875, addressed a letter to Mr. Bernard O’Neill, of Charleston, informing him that he had heard that his uncle intended to sell Cloney, and imploring him, Mr. O’Neill, to see his uncle and learn from him if he would not let his brother John and himself have the first offer, and to know his price. On February 19, 1876, having received a reply from Mr. O’Neill, he again wrote to him, thanking him for the information, “the manner and terms,” and stating that he could raise the funds for the purchase, and further, that he would leave the value of the property to his uncle, and urging him to learn whether his uncle would accept his proposition. The letter above referred to, from Mr. O’Neill to which this was reply, the plaintiff failed to produce. No doubt, however, from the reply, that the “terms” were mentioned.

About this time the plaintiff received a letter from his uncle, but this letter he failed also to produce on the trial. To this letter he replied on March 2, 1876, acknowledging the receipt of his uncle’s letter, and saying that he consulted Mr. Robert Nelson, to whom his uncle had referred him, about the present value of Cloney, and stating that if he (his uncle) intended to sell Cloney to him, he would leave the value to him, saying he could get two-thirds of the purchase money from the board of trade; and further, that he could get the other third in some way. ' He also enclosed a letter from an attorney, Mr. O’Neill, of Larne, conveying instructions as to drawing the papers necessary to the trade. On March 22,1876, John McKeegan replied in the letter first above mentioned, which is the letter upon which the ease turns. In the meantime and before the trade was concluded some coi’respondence took place between Mr. Nelson and Francis McKeegan as to the value of Cloney, but as the originals of these letters were not produced, and the copies were objected to, they will for the present be omitted.

Now, looking at this important letter from the standpoint of these surroundings, did his honor, Judge Kershaw, err in holding that there was no contract therein embracing the property now claimed by the plaintiff? There was certainly no contract in express terms in the sense that a proposition was made and accepted for anything besides the estate of “Cloney.” The negotiation up to this time between the parties referred to nothing else. The letters of Francis McKeegan indicated an earnest desire to obtain an interest in Cloney. At first he desired to rent one-half, but learning that it was the intention of his uncle to sell, he then became anxious to buy, and was willing for his uncle to fix the price, and distinctly made that proposition, first through Mr. Bernard O’Neill and then in a letter to Mr. John McKeegan himself. Nothing had been said about the-estate of John McKeegan in America. Nor does it appear anywhere that John McKeegan was at all anxious to sell Cloney to any one, nor that it would be a difficult matter to make a sale thereof. Nor does it appear in the letter that John McKeegan considered the value of any other property besides Cloney in fixing the price at which he was willing to trade. He thought “Cloney” was worth ¿£1,500, but to his nephew he would let it go at ¿£1,400, and it is manifest that there was no distinct, positive, and absolute contract made as to anything except Cloney, and that Francis Mc-Keegan did not understand it to be a clear and distinct contract for more, is evidenced by the fact that he consulted his attorney, and afterwards, under the hope of fixing it, had the letter stamped, and this, too, without the knowledge of his uncle.

Was there a contract of the second class mentioned above ? i. e., “When absolute, unconditional representation of something to be done in the future is made by one person in order to accomplish a particular purpose, and the person to whom it is made, relying upon it, does the acts by which the intended result is attained and purpose accomplished, a contract is thereby concluded between the parties.” To bring a case under this principle it must appear that the party sought to be bound desires to bring about a certain result, and that in order to accomplish his purpose he makes an absolute, unconditional representation that he will do something in the future, and that the party to whom it is made, relying upon it, does the act required. Or to make a specific application to the case at bar, it should appear that John Mc-Keegan desired to sell Cloney to Francis McKeegan, and in order to consummate the sale he made an absolute and unconditional representation to him that if he would purchase he would leave him all of his estate, and that relying on this representation Francis closed the trade and took Cloney.

Do these facts appear either in the letter or in the evidence, or in the two combined ? In the first place, it does not appear that John McKeegan was at all anxious to part with Cloney to any one, much less to Francis. The anxiety was all on the side of Francis. He wrote to his uncle within two days after the death of his father, and receiving no reply he then wrote to Bernard O’Neill imploring him to intercede in his behalf, proposing to buy upon terms to be fixed by his uncle, and then wrote a second letter to Bernard O’Neill, thanking him for information received as to the “manner and terms,” stating that he could raise the necessary funds. These letters were all couched in the most earnest terms, and followed each other in quick succession.

John McKeegan finally replied to these earnest appeals, stating his price, and leaving it to Francis to say whether he would accept. It was in this letter, after stating to Francis that his price to him was ¿61,400, if to any one else ¿61,500, he added, “but you will get all I am worth at my death.” Was this an unconditional statement that if Francis would take Cloney at the price mentioned, that in consideration thereof he would, in addition thereto, leave him all of his estate at his death ? Was it made to induce Francis to take Cloney, and did Francis act upon it with that understanding? Would he have declined the purchase but for that representation ? We cannot think so; we cannot think that John McKeegan ever intended the statement in that sense, or that Francis ever so understood it, or so acted upon it.

There is no sufficient and satisfactory evidence in the case showing that “Cloney” was worth less than ¿61,400, even with the tenancy rights (whatever they might have been) upon the place. The plaintiff’s testimony on that subject is very guarded. He says: “At that time the value of Cloneymore to me was not ¿61,400.” The plaintiff makes no offer to rescind. There is no evidence that there was any pressure upon John McKeegan requiring him to sell, or that Francis was likely to be the only purchaser. In fact, Francis deprecated a public sale and urged that this should not be had, and earnestly requested that he and his brother John should have the first offer. The ease is entirely destitute of any fact showing a reason or motive why John Mc-Keegan should .hold out such an unusual and extraordinary inducement for such a trade. The only fact indicating that Francis ever conceived the idea that the whole estate of his uncle was embraced is the fact that he consulted his attorney and had the letter stamped. Why did he not consult Mr. John McKeegan? If in his opinion the promise was so vague and doubtful as to require the opinion of an attorney, why, before acting, did he not have a distinct understanding with his uncle? and why, without any information to him at the time, or ever afterward during his life, did he have the letter impressed with sixpenny stamps ?

The natural explanation of the remark in the letter, “But you will get all I am worth at my death,” seems to us to be as follows: John McKeegan had acquired-a considerable estate in this country; he was an old man, without wife or children. His relatives lived in Ireland; he had been kind to them, especially to the family of his brother Francis; and it was the understanding, no doubt, with the knowledge of John, that at his death his kindness during life would be followed up by leaving to his family his estate here. No doubt he intended to do this, and when he wrote this letter this intention was present to his mind — not as a part of the proposed sale of Cloney, but as a long existing intention, altogether disconnected from Cloney, and this remark was thrown in, not as an inducement for Francis to buy, but as a reason why he was willing to take from him ¿6100 less than from any one else. “I think the place,” said he, “is worth ¿£1,500, and if I was dealing with strangers, I should demand that sum, but you are to get my estate at my death anyway, and I will let you have Cloney at an under value.” This is far more reasonable than that he was selling not only Cloney, but his whole estate, for ¿£1,400, Cloney to be delivered at once and the estate at his death. At all events, the proof of the contract fails entirely to come up to the requirement of the cases cited.

It is urged, however, that there are numerous cases where the language used in a letter was not stronger than that used here, and yet the court held that a contract was established. And the following cases are referred to: Gary et ux. v. Executors of James, 4 DeSaus., 185; Caborne v. Godfrey, 3 Id., 514; Goilmere v. Battison, 1 Vern., 48; Wankford v. Fotherley, 2 Id., 322; Hammersly v. Baron de Biel, 12 Clk & Fin., 45; Bold v. Hutchinson, 5 DeG., M. & G., 558; Ridley v, Ridley, 34 Beav., 478; Coverdale v. Eastwood, 5 Eng. Rep. (Moak), 755; Sutton v. Hayden, 62 Mo., 101. We have examined each of these cases and find the proposition stated by appellant fully sustained. The language used in each of them is very similar to that employed in the letter of McKeegan. For instance, in the last case referred to it was: “All her property should at her death be her niece’s.”

There is a marked difference, however, between the case at bar and all of these, a difference which vindicates the judgment in the latter cases, and yet prevents the application to the former of the principle upon which said judgments were founded. In many of the cases cited, the act done by the promisee was founded primarily and entirely upon the promise made. It had no other consideration. To illustrate: In Sutton v. Hayden, supra, an aunt had written to the guardian of her niece promising that if she would come and live with her and nurse and take care of her for the remainder of her days, all her property should at her death be her niece’s. The guardian assented to the arrangement, and the ward faithfully carried it out. So in the case of Gary et ux. v. Executors of James, 4 DeSaus., supra. “The father, who had separated from his wife, wrote to 'his daughter: If you will come and live with me, you shall be the object of my care, and shall enjoy all the attention'that can be bestowed by a tender father. You are the object of my love and shall be the heir of my property.” In both of these cases the contract was undoubted, and it ivas properly enforced.

In the other cases the promise was equally apparent, not, however, from the terms used ■ simply, but because founded upon circumstances in the nature of marriage settlements, as in the case of Coverdale v. Eastwood, 5 Eng. Rep., supra, and Caborne v. Godfrey, 3 DeSaus., supra. In the former case, in contemplation of a marriage between a Mr. John Coverdale and a daughter of Eastwood, the mother of Coverdale wrote to Mr. Eastwood, stating that her son was willing to settle ¿£4,000 on Miss Eastwood, and inquiring whether he would make a corresponding settlement. To this Mr. Eastwood replied that his business was not in condition to extract ¿£4,000 from it, but that he had some years before made a will, in which he had left his property to trustees for the use of his daughter, and in the event of the marriage taking place, it was his intention to make a will in accordance with the facts of the case, and of course he would settle his property on his daughter in strict settlement, &c., &c. “I will take care that my property, which I suspect will exceed ¿£4,000, shall be properly secured upon her and her children after my death.” Held, that the above expression of intention amounted to a contract to settle the whole property upon the daughter in strict settlement. In the cases found in 1 and 2 Vern., and 5 DeG., M. C., supra, the promise was distinct and positive, and based on an event which was to happen, marriage or otherwise.

The case before the court is destitute of any fact of the kind mentioned in either of the classes of cases above. “Cloney” was the matter about which negotiations between the parties had been going on; nothing else was ever mentioned in any letter of the plaintiff, either to John McKeegan or to any one else. “Cloney” was the primary and, as it appears to the court, the only consideration for the payment of the ¿£1,400. The remark of John McKeegan that the plaintiff “would get all of his property at his death,” was not put upon the event of the purchase of Cloney, or as dependent in any way upon the negotiation in reference to. “Cloney,” but was a mere statement of what he, John McKeegan, had intended to do long since, voluntarily, and without regard to any consideration moving him theréto.

And it does not appear to the court that the value of Cloney is at all involved, or whether it was encumbered with tenancy rights, thereby reducing its present value to a purchaser. The plaintiff distinctly proposed, as we have already said, to purchase at a valuation to be fixed by the vendor, and this before the letter in question. That valuation was fixed and accepted, and the trade was consummated by the payment of the purchase money and the execution of titles, and in pursuance thereof the plaintiff has been in possession for the last eight or ten years, without one word or whisper having ever been heard from the plaintiff that he had titles also to the estate of his uncle until the death of his uncle, when for the first time the claim is made upon his executors.

It perhaps would have been more in accordance with the promptings of nature that this old man should have left his estate to his relatives, but this estate was the fruit of his own labor and toil. He had earned and made it, and it belonged to him, and under our law, which is one of its boasts, he had the right to dispose of it as to him seemed best; and this, too, whether the disposition was moved by a sufficient and commendable motive, or by caprice: and having done so, although it has defeated the reasonable and natural expectation and hope of the plaintiff, there being no allegation or proof of undue influence, deception, or fraud, it must stand.

From the view which we have taken of the facts of this case, independent of the alleged incompetent testimony, we do not deem it necessary to determine whether the exceptions of the plaintiff in that respect are well founded. Because, even admitting the incompetency of this testimony, we think the decree of his honor is abundantly sustained by that portion about which, there is no dispute. Nor is it necessary to say more than we have said above in reference to the encumbrance upon “Oloney” of the tenancy rights referred to in the argument.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.