Mr. Associate Justice StukEs
delivered the Majority Opinion of the Court; Mr. Associate Justice Tayeor filed a Dissenting Opinion, and Mr. Ci-iiEE Justice Baker filed an Opinion concurring in the dissent:
The Opinion of the Court follows:
Careful consideration of the voluminous record in this case has not convinced me to the extent necessary in such a controversy that respondent is entitled to specific performance of the alleged contract, and on that account I must respectfully dissent from the conclusion reached by Mr. Justice Tajdor. With all due deference to the opinion and the writer, I submit that it was commenced in error when it was asked: “Is there competent and substantial evidence in the record to support the finding of fact by the Master in Equity concurred in bv the Circuit Judge?” That, I think, is not the proper query in this case. More is necessary for affirmance, as I think, is easily demonstrable.
I do not question the authority of
Alderman v. Alderman,
178 S. C.,
9,
181 S. E., 897, 105 A. L. R., 102, upon the point of the propriety of the rule there' stated and applied, to wit, that concurrent factual findings of the master and trial Judge in an equity case will not be disturbed upon appeal unless they are without evidence to support them or are ¿gainst the clear preponderance of the evidence. It is a concidence that I was of counsel in that case and argued for the rule which was already well established by prior decisions. The case has since been cited too many times to admit doubt of its authority. But this rule of the decisions (“court-made law”) should not be so construed as to conflict with the constitutional powers and duties of this Court. The latter are set forth in considerable detail in our Constitution of 1895, Art. 5, and I quote in part Section 4: “And said Court shall have appellate jurisdiction only in cases of chancery, and in such appeals they shall review the findings of fact as well as the law, except in chancery cases where the facts are settled by a jury and the verdict not set aside, and shall constitute a Court for the correction of errors at law under such regulations as the General Assembly may by law prescribe.”
Thus in chancery appeals (such as this) we “shall revew the findings of fact,” which provision very plainly confers the jurisdiction so to do and creates the corresponding duty.
Moreover, I think that the Master misconceived the law (with respect to the quantum of proof necessary) which is peculiarly applicable to this case, and that his factual findings were influenced by this error of law, in which the trial Judge followed him. Thus a situation was created in which the rule of
Alderman v. Alderman, supra,
however broadly interpreted, is not an answer to this appeal. I refer to the well and widely established principle that Courts do not countenance specific performance of parol
contracts to devise unless the evidence
compels conviction
that there was such a contract and that it has been performed by the promisee unless complete performance becomes impossible through no fault of the latter. The ordinary rule of preponderance or greater weight of the evidence, applicable to civil actions generally, is insufficient in this class of cases; some Courts require proof beyond a reasonable doubt, as on the criminal side; universally a higher degree of convction of truth is necessary than in the usual civil case.
The failure of the distinguished Master and Circuit Judge to fully recognize and follow this governing rule in the trial of this case resulted, I think, in erroneous conclusions. It received very scant attention in the report and decree, yet it was properly of controlling importance. The case appears to have been tried as if it were an ordinary civil action, with only the usual rules of evidence applicable but, as has been (and will be further) pointed out, it is not.
The only authority cited in the decree (which adopted the Master’s Report by reference) was
Erskine v. Erskine,
107 S. C., 233, 92 S. E., 465, 467, in which the alleged contract
was not upheld
and it was said in the excellent circuit decree which was published by this Court, as follows: “But 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. The evidence to sustain it should be received and scrutinized with the greatest care. The terms of such an agreement should be definite and certain and established by evidence clear and convincing. It has also been said by our Supreme Court that the terms of the agreement should be unambiguous and definitely ascertained.
Dicks v. Cassels,
100 S. C. [341], 348, 84 S. E., 878, and cases
cited; Wilson v. Gordon,
73 S. C., [155], 160, 53 S. E.,
79;
McKeegan v. O’Neill, 22
S. C. [454], 468;
Church of the Advent v. Farrow
[28 S. C. Eq., 378], 7 Rich. Eq. [378], 383.”
And this Court there said in addition: “* * * Plaintiff .failed to prove his case by
that measure of proof required in cases like this,
which is stated in the decisions cited by the circuit court.” (Emphasis added.)
The Master relied largely on
Bruce v. Moon,
57 S. C., 60, 35 S. E., 415, and quoted extensively from the fine opinion by Chief Justice McIver. But I think it appears clearly from a consideration of it that the case is not apposite here. There, there was undoubtedly a contract, and it was evidenced in writing. The will, which was “enforced” in part by the decision, included the terms of the agreement, and the trial Judge properly said that it was more than a will, really a contract, and binding upon both parties. (More will be later said with reference to the will in this case under which it is proposed that respondent recover. It contained no element of a contract. All agree that it was prepared by competent attorneys of Rocky Mount, North Carolina. They included in it no reference to a contract and neither of the attorneys was able to recall testator’s conversation upon the subject which respondent testified to in detail. Incidentally, in the relation by respondent of this conversation she did not, at least, tell the whole truth for the attorneys must have been instructed to include the provision relating to testator’s mother for otherwise it would not have been incorporated in the will.) It seems to me that this vital difference in the facts of
Bruce v. Morton, supra,
and the instant case, makes it of little value; and the learned Master erred when he depended so strongly upon the authority of it.
An exhaustive, but I think not very satisfactory, annotation upon the subject is found at 69 A. L. R., 14, supplemented (I think in better form) in 106 A. L. R., 742. From the latter (in which the late authorities are collected),
at page 748, the following is quoted:
“A
proceeding for the specific enforcement of a contract to devise or bequeath the property of the promisor, being an effort, by a contract resting in parol, to distribute the estate of a deceased person in a different way from that provided by law, has uniformly, together with the evidence relied upon to establish the contract, been looked upon with jealousy, and the evidence to establish it will be weighed in the most scrupulous manner.”
And from page 758: “As pointed out in the earlier annotation, it seems that in order that part performance may operate to take a contract of the kind under consideration herein out "of the operation of the Statute of Frauds, the services must be exceptional and extraordinary in character, or it must appear that the promisee’s whole course of life was changed by performance of the contract.”
And possibly out of order, but to collect here together all quotations from this annotation, the following excerpts are taken from pages 765 and 766:
“The mere fact that services of a valuable character have been performed in the expectation of a legacy is not sufficient to entitle the person performing them to equitable aid; it must also appear that the promisor actually obligated himself to make this disposition of his property; and thus evidence of statements by the promisor tending to prove a mere disposition to devise by will, or convey by way of gift or a reward, for services, is not sufficient to entitle the beneficiary to specific performance of the contract; there must be shown a real contract to devise by will, made before the performance of the acts relied upon.
“It is frequently contended that a will executed by the promisor in compliance with his contract is a sufficient memorandum to satisfy the Statute of Frauds.
“Thus in
Holsz v.
Stephen, 362 Ill., 527, 200 N. E., 601, 106 A. L. R., 737, a contention of this type was made,
but the court in this instance held that the will in question contained no intimation that it was executed in pursuance of any contract; that upon its face it purported to be nothing more than a gift of the property involved, and was thus not sufficient to satisfy the statute.
“And to the same effect are
Luders v. Security Trust & Sav. Bank,
1932, 121 Cal. App., 408, 9 P. (2d), 271;
Ortman v. Ortman,
1933, 45 Ohio App., 551, 187 N. E., 588;
Hathaway v. Jones,
1934, 48 Ohio App., 447, 194 N. E., 37;
In re: Byrne’s Estate,
1936, 122 Pa. Super., 413, 186 A.,
187.”
“As
stated in the previous annotation, the fact that an alleged oral contract is out of harmony and inconsistent with a .will made by the promisor subsequently to the time when it is alleged that he entered into the contract in question, is entitled bo be taken into consideration as bearing upon the-improbability of the contract having been made as alleged.”
The stringent rule of the quantum of proof required results (when the alleged contract rests in parol) from the fact that such a contract is in the teeth of the Statute of Frauds and specific performance (or its equivalent) is properly allowable only when enforcement of that statute would result in a fraud upon the promisee. Only in prevention of fraud do Courts allow a violation of the statute. Furthermore, sometimes, as'in this case where there was a subsequent contrary will, the granting, of the relief sought would result in denying the deceased the power of disposing of his property by last will as he sees fit, which is a prime right (with now inapplicable statutory limitations) of the possessor of property. Here the latter has a special appeal to a Court of equity for the testator had accumulated a considerable estate by his industry and thrift. So many of his race are “under-privileged”. By his own efforts, he was not. And his last will, that thwarted by the decree under review, appears to provide a fair distribution of the estate
among all of the natural objects of testator’s bounty and affection (his son, his brothers and sisters) except the respondent, his sister, whose omission is explained in the will by a recital that liberal gifts and advances had been already made to her.
Respondent testified that she w.as present at the will-drafting in Rocky Mount and that decedent did tell his lawyers about the alleged contract, and there is grave doubt in my mind that such 'testimony was admissible in view of the provisions of Code Sec. 692, relating to testimony by a litigant regarding conversations and transactions with a person deceased — this because, according.to her testimony, she was a party to the alleged transaction, of which the making of the will was a part, in fact, the consummation so far as testator was concerned. Was she not then a party to the transaction in the lawyers’ office and her testimony thereabout incompetent in this case? Certainly, I do not think its admission was warranted by the decisions cited to the point. See to the contrary what was said by the Court in
Merck v. Merck,
89 S. C., 347, 71 S. E., 969, Ann. Cas., 1914-A, 937. I think the problem has been considered too much as involving only a
communication,
rather than a
transaction,
which latter the preparation of the will was, according to respondent’s theory of her case; Suppose she had accompanied testator to a bank, instead of a lawyer’s office, for the purpose of his making a deposit to her credit pursuant to a contract with her, and she had seen him place a thousand dollars on the counter and heard him tell the cashier that he wanted it deposited to her credit, in compliance with a stated contract between them, and instead the bank had credited it to his account, could she in a suit by her against his estate testify to the decedent’s statement of the contract and direction to the banker! I think not, under the Statute, for their visit to the bank and the business there was
a part of their transaction. And I see no distinction between this supposed casé and the one presented.
But I think this interesting problem need not be-solved for .Mr. Justice Taylor has not found it necessary to consider this questionable testimony by respondent and I, on the other- hand, think that accepting it, at the value which I think it merits, together with the other evidence in the case (all of which I shall not endeavor to review), the entirety is insufficient to convince a Court of equity that there was such a contract, clear and explicit, and that it would be a fraud upon respondent for equity.to now decline to enforce her claim.
As already indicated, there are numerous pertinent precedents, in the prior decisions of this Court, the authority of which I find substantially in line with the general ■ rules governing such litigations which have been established by the Courts of our sister States, as is shown by reference to the annotations cited above, and some of which rules have been stated hereinabove.
By the clear decision in
White v. McKnight
(opinion by Mr. Justice Cothran), 146 S. C., 59, 143 S. E., 552; 59 A. L. R., 1297, it was established beyond doubt that a will made without reference to a contract to devise in accord with its terms is not competent evidence of a parol contract thereabout. The decedent in this case had. such a will prepared in Rocky Mount but the attorneys who served him there testified that they had no recollection of his reference to a contract, and one of them said on cross examination that, “it is rather unusual for any party to have a contract in connection with the preparation of a- will,” implying that such in this case would have probably impressed itself upon his memory.
The will, as has been said, contained no hint of a contract. It clearly evidences that at the time of making, respondent was the favorite object of testa
tor’s bounty which she was not when his subsequent will was made about three years later, soon after she had married and subsequently left his home and after antagonisms had arisen between her and his other near relatives. (But he did not forget her; in addition to a nominal legacy, he recounted that he had theretofore made to her “very liberal advances and gifts.”) This will of 1936 was perfectly consistent with there being no contract and I think it was error (under
White v. McKnight,
supra) to consider it evidence of the alleged parol contract, as the master did upon the authority of cases decided in other jurisdictions. Indeed, I think the facts that the will contained no reference to any contract and that a will of contrary provisions was later executed, raise the inference, under the circumstances of this case, that there was no contract, no intention of the testator to be irrevocably bound by his first will. Without such intent there was no contract. 106 A. L. R., 766.
In substantiation of the foregoing the following apt quotation is from the opinion of Mr. Justice Woods in
Wilson v. Gordon,
73 S. C., 155, 53 S. E., 79, which wa's quoted with approval in the subsequent case of
Dicks v. Cassels,
100 S. C., 341, 84 S. E., 878, 879: “The fact that there was an absolute devise from each sister to the other without limitation was strong evidence that there was no intention to limit the power of alienation. When an intention is reduced to writing either in form of a will or contract, there is always a strong implication of fact that the whole intention has beén expressed, and an implication still stronger that there is no agreement or intention contrary to that expressed.”
The opinion in the latter cited case,
Dicks v. Cassels,
was by Mr. Justice Watts, .afterward Chief Justice and famous for his natural keen and accurate insight into human nature and conduct, sharpened no doubt by his years of experience as a trial Judge. In denying the sufficiency of the evidence
there of a contract to devise, he said: “To establish an agreement such as is claimed by the plaintiff here, the proof must be definite, certain, clear, and convincing. A person has a right ordinarily to leave his property to whom he pleases. He has a right any time to make a will disposing of his property, and later on he can revoke this will
in to to or
change or modify the same by new will or codicil. It is a fixed principle of law that a will is revocable whenever the maker desires to change. A person has the right to dispose of his property as he pleases. He can-show gratitude,. affection, or charity, or he can be capricious with his own. The law gives to every one the right to enjoy his property while alive, and to make disposition of it after death. The maker of the will is dead, and the degree of proof establishing a contract whereby a will is made that cannot be revoked by the maker ought to be clear and convincing, certain and definite, and scrutinized and received with the greatest of care; for it practically deprives the owner of property of any interest in the property except to enjoy it for life. It is a most serious thing for the court to decide that a person cannot dispose of what is his by deed or devise, and because at one time he intended a certain person to be the beneficiary under his will and after his death to have his property and later that he cannot change his mind and substitute another or others. As persons advance in life they change their views as to a number of things, and it frequently happens that a wealth of affection and favors have been wasted on persons, and the recipient of the favors proves weak, unresponsive, unworthy, or ungrateful.”
In
McKeegan v. O’Neill, 22
S. C., 454, it is stated in the circuit decree, which • was affirmed by this Court', quoting from Waterman, Spec. Perf.: “According to this authority the relief, when the alleged promise is to make a will, is confined to the first-class of contracts: Legal contracts— where the minds of the contracting parties meet upon the
same terms: ‘where there is an
intentional offer
on one side, and an
intentional acceptance on the other’
— deliberately entered into by the decedent.”
In the latter case specific performance was denied despite a writing which was contended to be evidence of a contract to devise, and this Court said: “For one to be bound to dispose of his property in a certain way by will, tire 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 we said by Chancellor DeSaussure in
Rivers v. Ex’rs of Rivers
[3 DeSaus., 190, 4 Am. Dec., 609], “To be sure, the. court would be inore 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.’ ”
It is interesting to note that Mr. Justice Watts again spoke for the Court in
Kerr v.
Kennedy, 105 S. C., 496, 90 S. E., 177, 179, wherein the Circuit Court judgment was reversed and specific performance denied, and said:
“It is an ancient and boasted right that a person has a right to dispose of, by deed or will, what is lawfully his own, and a person who undertakes to set aside a will, in every way. properly executed by a competent person, on the ground that a contract had been previously made, must establish his own contention by clear, definite, and convincing evidence. They, plaintiffs, have failed to do this in this case.
“A contract to make a will, like other contracts, is irrevocable. The minds of the parties must meet. The testatrix must understand she is not merely promising to do something in the future, but doing it now; that she is relinquishing her right to change her mind.”
Yet again it was Mr. Justice Watts who wrote the formal opinion of the Court in
Groce v. Groce,
131 S. C., 416, 127
S. E., 719, 720, whereby the circuit decree was adopted, in which it was said: “After carefully considering- the evidence reported by the master, I find that the plaintiff has failed to establish the contract with his mother, Mrs. Lucretia Groce, alleged in the complaint. The. evidence shows that she for a number of years intended to leave him by will the property in question, in consideration of his living with her and caring for her as a son; but it does not show any agreement, contract, or legal obligation on her part to do so. See
Dicks v. Cassels,
100 S. C., 341, 84 S. E., 878;
Kerr v. Kennedy,
105 S. C., 496, 500, 505, 90 S. E., 177.”
Finally, it is noted that Mr. Justice Watts wrote the leading opinion, and therefore the decision, of the Court in
Brown v. Golightly,
106, S. C., 519, 91 S. E., 869, 872, Ann. Cas., 1918-A, 1185, in which concurrent finding of the master (relating to the alleged contract to devise) and the able trial Judge, Mendel Smith, were reversed (the procedure which I think should be followed in this case) and the alleged parol contract, which had been upheld by master and Judge, was held unenforceable in equity. It was pointed out, under the cited authority of
Dicks v. Cassels
and
Kerr v. Kennedy, supra,
that, in order to enforce specific performance in cases of this character, the contract must be reasonably clear, definite and certain and established by strong, clear and convincing evidence, which requirements the plaintiff in that case had failed to establish, despite the contrary, concurrent findings of master and Judge. The able Justice Hydrick concurred in the opinion of the majority of the Court, for whom Justice Watts was the spokesman, upon the ground that the evidence failed to establish the alleged agreement, quoting “by that measure of proof required by law in such cases. It is not sufficiently clear, definite, and certain.” And he emphasized that the disinterested witnesses who testified as to the declarations of the deceased differed in the details of the declarations of the de
cedent with respect to his intention, and said: “He (the decedent) may have merely expressed his intention to provide for the child in his will.” Thus the situation of that case, as here summarized, bears very striking similarity to the case in hand.
I have not referred to all of the South Carolina cases which I have read relating to the subject but surely to enough to demonstrate the high degree of proof required for the enforcement in equity of such a contract as is here alleged, and I think the cases cited constitute undeniable and binding authority for the sustention of the present appeal, in the light of the record before us.
All of respondent’s testimony is rendered unreliable, in my view, because of her statements concerning her former life and occupation in New York before she came to live with the deceased. Her testimony in that connection was literally annihilated by the appellants’ evidence taken there
de bene esse
and also by other testimony, to all of which she made no effort to reply, not even taking the stand after the extremely damaging evidence of appellants was in. And some of these witnesses whom she failed to contradict were entirely disinterested in the outcome of the litigation.
It should be mentioned that resnondent’s own son and her estranged husband, who were likewise disinterested in the result of the suit testified against her; and the husband on cross-examination characterized her as the “meanest negro woman I ever had anything to do with,” saying further : “She is the meanest and I am scared of her.” And he spoke from experience for by that time he had had three wives. Incidentally, this husband of respondent, and from whom she derived her fourth name, is a railroad fireman earning over $300.00 per month and he testified, without contradiction, that she exacted about the last penny from him.
It was found, undoubtedly correctly, that decedent suffered a stroke in 1936 and such is stated as an unquestioned fact in the opinion of Mr Justice Taylor. But respondent said not, and stuck to it; she said he was “sick slightly from his ears, hard of hearing”; and that the doctors “announced his blood pressure a little high.” (She dismissed his family physician shortly after his return from hospital.) It is a fair inference that this untruth was inspired by the allegations (unproved in their entirety) of the answer to the effect that testator at time of his first will had had paralysis and was feeble in body and mind and subject tp her fraudulent influence and acts.
But how can one who regarded so lightly her oath as a witness be believed as to other matters, and sufficiently to invoke the aid of equity to wield a delicate and important power in her behalf ?
The necessary conclusion upon the record is, I think, that respondent left her job and little earnings in a laundry in New York, where she lived without any family, and came tp live with the testator, her bachelor brother, possibly at his solicitation, after his hospital experience. There she stayed for about three years and together they consumed his substantial income, that from his real estate rents alone being upwards of $200.00 per month. They purchased and enjoyed an automobile. She married and her husband lived in the home for a time and until together they moved away.' After she left, the testator lived out his life (about another three years) with his mother (until her death) and another sister in his home. Shortly after respondent’s departure testator consulted his lawyer, Mr. Levy, a highly respected member of the Sumter bar, and employed him to try to recover his money and furniture which respondent had taken away with her. $300.00 was paid in compromise settlement after respondent had complained to Mr. Levy that he should
not press the claim and that, in effect, what she had would be all that she would obtain from her brother.
On the contrary, if she had not been amply paid by the enjoyment of testator’s home, automobile and income', her proper course would have been to file a claim against testator’s estate for the unpaid value of her services. That she so contemplated is indicated by the testimony of another Sumter lawyer of high repute, Mr. Shore, who was consulted by her after testator’s death concerning a possible claim, and he had no recollection of any statement by her relating to a contract.
It is passing strange to me that respondent never mentioned to Mr. Levy, despite. the convenient opportunities afforded by their correspondence and personal interviews, that she had this all-important contract, as now contended, with her brother, Mr. Levy’s client. Would it not have been the natural answer to the demand that she return the furniture? No Sumter witness (except Randolph Prince who is hereinafter mentioned) was produced who ever heard testator say that he had the contended arrangement with respondent, although his lawyer, doctor and other confidants testified. But respondent’s feminine friends from Rocky Mount make him almost garrulous about it there. These considerations, I think, militate strongly against the probable verity of respondent’s present claim. She knew the necessity of writing to make a will, and a power of attorney, for she procured the preparation of both for her brother. Is it not a logical inference that had there been a contract such as she now asserts, she would have seen to it that it was reduced to writing in Rocky Mount (as the will was) or in Sumter where the power was prepared ? I think so.
Reverting to the testimony of the three colored, women of Rocky Mount who testified for respondent concerning statements made there about seven years before by the decedent, in which the master placed full faith, it is interesting
to compare their evidence with that of the witnesses, Hewins, in
Erskine v. Erskine, supra.
The latter were entirely discredited by the Court because of the lapse of time and their profession of perfect memory of a conversation occurring years before concerning a matter in which they were not specially interested, all of which reasons exist equally or to a greater degree in this case, and Í do not think that the important issue of this contest should turn upon their testimony which has so many of the earmarks of unreliability. As the Court said in the
Erskine case:
“The more reasonable view is that th.e two Hewins (here the Rocky Mount women — interpolated) from lapse of time and imperfect recollection as to the exact words used are mistaken in their testimony.”
The three Rocky Mount witnesses referred to all differ in their versions of testator’s intentions expressed to them there, they say, and none agrees with the contract alleged in the complaint or with respondent’s statement of its terms on the witness stand. And likewise none jibes with the will which latter is a negation of a contract, although prepared in the presence of the claimed promisee.- It seems to me patently impossible for the Court to undertake to find and enforce a parol contract so variously and conflictingly described by plaintiff’s key witnesses. Of necessity, it is not clear, convincing and free from doubt. Certainly, such testimony cannot carry irresistible conviction of a contract and its terms. Yet this is a prime requisite for enforcement, and it is completely lacking in this case.
Moreover, decedent may have stated his intention to make a will at that time in favor of respondent, which he did, without saying, or intending to say, that he was obligating himself to an irrevocable contract whereby respondent would take the bulk of his large estate to the exclusion of his son, his other sisters and his brothers. The issue is too delicate and important to depend upon the frailty of untrained human
memories, particularly of these witnesses, in the face of the execution by testator of a will devoid of any reference to a contract or other impairment of its ordinary revocability. I think, as has been said, that the execution of a will of such terms and the subsequent revocation of it by another, contrary will, is evidence in this case of its non-contractual nature and that it was not intended by the maker to bind himself irrevocably to such disposition of his property at his death.
From the opinion of Mr. Justice Taylor it appears that he has been largely influenced to affirm the factual findings of the lower. Court by the testimony of the illiterate witness, Randolph Prince, to which he several times refers. Prince served as testator’s chauffeur to take him in his automobile to Darlington to see his mother after the latter had left her long-time haven in her son’s (testator’s) home where respondent then was. The witness testified that he overheard testator’s statement to respondent that' he was J going to move mother and Neeta back here, because I believe Neeta will take care of me better than you are.” I quote the following,- ensuing question and answer, for I think this bit of testimony, with the subsequent turn which examining counsel gave it, is of controlling importance in evaluating this testimony: “Q. And what did she say? A. She said, if you are going to do that flow about my pay, and he said, Goldie, there will not be any changes made at all.” Skillful examining counsel (the late Mr. D. D. Jennings) shortly thereafter substituted the word “agreement” for “pay” by the following quoted questions and answers: “Q. And you say Goldie asked about her services and the agreement they had made? A. Yes, sir. Q. Well, what did she ask about the agreement they made ? A. She asked, what are you going to do about the agreement we made ? He said there will not be any changes made.” Thereafter the witness continued to refer to an agreement. Careful study of all of
the testimony of this witness convinces me that the case cannot, in keeping with the authorities, turn upon his evidence.
As before indicated, I have not undertaken to state all of the lengthy testimony. I repeat that a reading and rereading of it leaves me unconvinced of the truth of respondent’s allegations, certainly to the degree of conviction necessary in such a case. Perhaps if it were an ordinary equity appeal from concurrent factual findings of master and judge, and uninfluenced by errors of law, my view would be different and I could, conscientiously agree to application of the rule of
Alderman v. Alderman, supra.
But this is very clearly not such a case, and my considered judgment is that the decree of the Circuit Court should be reversed and the complaint dismissed.
The majority having concurred in the foregoing, it is the judgment of the court, and the judgment of the Circuit Court is reversed.
Messrs. Associate Justices Fishburne and Oxner concur.