1. Where a will is made in fulfillment of an agreement by members of a family, compromising and settling their conflicting claims to property disposed of by the will, it is binding upon all parties and may not be revoked or destroyed to avoid such agreement. The petition setting forth the agreement and execution of a will in fulfillment thereof, alleging threats by the testator to destroy the will and alienate the property, and praying for injunction and a decree of title to the property conforming to the provisions of the will, alleged a cause of action, and the court did not err in overruling the general demurrer.
2. Where upon the trial the petitioner's evidence proved the allegations *Page 827 of such petition, and the defendant offered no evidence denying that the will was made in settlement of the conflicting contentions, there was no issue of fact for submission to the jury; and the court did not err in directing the verdict for the petitioner.
No. 14676. NOVEMBER 10, 1943. The amended petition of Mrs. Maude Justus against R. L. Cagle alleged in substance as follows: In 1907 J. M. Cantrell and his wife, Josie, acquired the custody of the petitioner, who was at the time an inmate of Vine Street Orphanage, by agreeing with that institution that they would adopt her as their own child. The petitioner was immediately taken into their home, and they treated her as their child, repeatedly telling her that if she would live with them and assist in looking after them, they would leave all their property to her at their deaths. By order of the superior court of Dade County, dated November 6, 1907, the petitioner became the adopted daughter of J. M. Cantrell. Relying upon the promise to adopt and to give her their property, the petitioner lived with and assisted them during the remainder of their lives. Cantrell died in 1920, and Mrs. Cantrell died in 1942. On or about February 1, 1922, Mrs. Cantrell married the defendant, and petitioner continued to live with her with the understanding that petitioner should have all of her property at her death. Previously to her marriage to the defendant Mrs. Cantrell had made a will, leaving all of her property to the petitioner; and this fact was known to the defendant.
On October 21, 1936, Mrs. Josie Cantrell, who was then Mrs. Cagle, conveyed by deed described land of the value of $6000 to R. L. Cagle, and before the execution of the deed she discussed the same with the defendant and petitioner; and it was agreed by all of them that the property should be given to the defendant for life, with the remainder to the petitioner. The deed was thereafter executed in the mistaken belief that it carried into effect the agreement. Some time after its execution Mrs. Cagle became aware of the fact that the deed passed unconditional title in the defendant, and made no provision for the petitioner. She thereafter called the defendant's attention to the fact that the deed did not conform to the agreement; and it was thereupon agreed by Mrs. Cagle, the defendant, and petitioner that necessary papers would *Page 828 be prepared and executed to carry out the first agreement. An attorney was consulted, and the parties finally agreed that, instead of reforming the deed or conveying a remainder interest to the petitioner, the defendant would make a will containing a provision that the land should go to the petitioner at his death; and at the suggestion of the defendant it was agreed that the will should require the petitioner to pay to his estate $1000 to compensate him for the upkeep of the property, the will to also provide that if the defendant predeceased Mrs. Cagle the land should go to Mrs. Cagle for life, and the remainder to the petitioner. It was agreed that the will should be deposited in a safety-deposit box in a bank in Chattanooga, to which the defendant and the petitioner should have joint access. A will containing the above agreements of the parties was prepared and executed by the defendant in the presence of three witnesses, and deposited as agreed. The petitioner, as a further consideration for the execution of the will, agreed with the defendant that she would remain with and assist in looking after Mrs. Cagle for the remainder of her life; and she has fully performed this obligation. On or about June 27, 1942, the defendant secretly canceled the safety-deposit box rental agreement with the bank, and at that time took the will therefrom and destroyed it. On or about May 13, 1942, the defendant and petitioner went to the bank and examined the contents of the safety-deposit box, including the will. On August 6, 1942, in reply to petitioner's inquiry, the defendant said that the rent on the box was not due until September. On August 21, 1942, the petitioner was informed by the bank that the defendant had discontinued the safety-deposit box on June 27, 1942. The defendant thus misinformed petitioner in order to fraudulently obtain possession of the will. He is now offering for sale and attempting to sell the land which the will gives to the petitioner, and he will sell or encumber it to the injury of petitioner unless enjoined from doing so. From the time of his marriage to Mrs. Cagle the defendant was never self-supporting, had little if any property, had failed in business, and was dependent upon his wife and her property for support. The prayers were for process, injunction, that the defendant be enjoined from cutting the timber on the land or otherwise injuring the same and be required to pay the taxes thereon, preventing alienation of or encumbering the property, alteration or destruction of the will or the *Page 829 execution of another will by the defendant; for impounding of the will and for its probate after the defendant's death; and for decree that the described property be held by the defendant for life and at his death to descend to the petitioner, and that she thereupon be required to pay the estate of the defendant $1000.
To this petition as amended the defendant filed a general demurrer, which was overruled, and the defendant excepted pendente lite.
Upon the trial the petitioner introduced evidence substantially supporting the material allegations of the amended petition. Mrs. Justus testified that after the death of Mr. Cantrell her mother told her that if she would continue to live with her, as she had promised before, all this property would come to her at her mother's death; that was her wish and the wish of her father; that after the death of her foster father her mother discussed the disposition of her property, saying that she wanted the witness to have all that they had. She testified, that she had talked with the defendant about his having a life estate in the property, with remainder to her; that her services to Mr. and Mrs. Cantrell were of the value of $14,000 or $15,000; that the property involved was of the value of $6000; that she discussed with her mother and the defendant the matter of making provision for the defendant during his lifetime, and that these three agreed that her mother should convey the land in question to the defendant for life, with remainder to her; that she was not present when the deed was made to the defendant by her mother, but that all three of them had agreed that she should convey only a life-estate to him, with remainder to her; that it was later found out that the deed did not carry this agreement into effect, and the three of them thereupon mutually agreed to correct the error by the will of the defendant; that attorney Townsend was called in for the purpose of making the will; that she heard the discussion leading to the making of the will, and the defendant said he was willing to make the will, provided the witness would pay his estate $1000 at his death; and that she agreed, and the will was drawn accordingly and was duly executed.
Attorney Townsend testified, that he went to the home of Mr. and Mrs. Cagle upon request, and Mrs. Cagle told him that she had deeded some property to her husband, the defendant, intending to convey only a life-estate, and thought the deed was drawn *Page 830 that way, but that she had discovered that it was not, and they had talked it over and wanted him to work out such arrangements as were necessary to carry out the purpose intended to have been accomplished when the deed was executed; that she said that she wanted the defendant to have the property for life, and at his death it should go to Mrs. Justus; that he suggested that this desire be accomplished by the execution of a deed, but the defendant objected, saying that he was willing to carry out the arrangement, but that since the original deed had been made they had talked it over and decided that the original agreement was not entirely fair to his people, that he had paid a lot of taxes and other expenses in taking care of the property, and that he felt like his children should have $1000 out of the property, and that Mrs. Justus had agreed to that, and that he wanted to make a will to that effect.
The defendant Cagle introduced attorneys who prepared the deed in question, and they testified that it was drawn according to the directions of Mrs. Cagle and was read to her before she signed it, and that no mention was made of any life-estate in the property.
The defendant testified, that he heard for the first time about giving the property at his death to Mrs. Justus when the will matter came up; that his wife told him that Mrs. Justus came to her crying and wanting her to get him to make her a will; that he told his wife he did not think it was right for him to sell his property at a loss to get money to operate the place and then give it to some one else and his first wife's children get nothing; that the next he knew was when attorney Townsend dictated the will which provided that when he died his wife should have the land for life and Mrs. Justus should have it when they both died, but that she should pay his estate $1000. He testified that he made the will to please his wife, and admitted that attorney Townsend probably made the statement in his presence that the proper way to accomplish their desire was by deed reserving a life-estate in himself, with remainder to Mrs. Justus. He was then asked, "Didn't you respond to that, saying, `I do not want to make a deed, but the same proposition can be carried out by making a will,' or words to that effect?" and the defendant answered, "Not that I know of." When the defendant was asked what caused him to make the will, he replied by reciting about attorney Townsend coming, and that he did not know who sent for him; that he heard what was said; and that his wife *Page 831 and Townsend talked it over, and she said something about a will. "That was about all, the whole thing." He testified, that he did not recall anything that was said that night about a deed; that Townsend said something about making a deed to Mrs. Justus, but that came up by Townsend and his wife talking it over, and that that was what his wife wanted; that his wife was not in her right mind, but that that was what she expressed there. He was asked if he did not propose making the will, saying that his wife knew he would do what he said. His answer was, "I don't think I did. I made the will." He testified, that Townsend suggested the will; that he made it to satisfy his wife; that Mrs. Justus was worrying her, and he did it to please her, knowing that he could destroy it, and intended at the time to destroy it later.
The defendant's motion for new trial, containing one ground complaining of the direction of the verdict for the petitioner, was overruled. The defendant excepted to that judgment, and assigned error also on exceptions pendente lite to the overruling of his demurrer. 1. Where a party for a valuable consideration enters into a contract whereby he obligates himself to make a will, a failure during his lifetime to make the will according to the contract gives a right of action to enforce the terms of the contract against his estate. Napier v. Trimmier,56 Ga. 300; Banks v. Howard, 117 Ga. 94 (43 S.E. 438);Gordon v. Spellman, 145 Ga. 682 (89 S.E. 749, Ann. Cas. 1918A, 852); Bird v. Trapnell, 147 Ga. 50 (92 S.E. 872);Hardeman v. Ellis, 162 Ga. 664, 668 (135 S.E. 195);Hankinson v. Hankinson, 168 Ga. 156 (2) (147 S.E. 106). This legal principle is conceded by the plaintiff in error, but it is urged in support of the demurrer that the petitioner was not a party to the contract, and hence should not be allowed to maintain the action, and that there was no consideration for making the will in the present case. The allegations of the amended petition show that the petitioner had rendered services to Mrs. Cagle until her death, in consideration of her repeated promises to give the petitioner all of her property. Therefore the petitioner had reason for being interested in the disposition of the property here involved. It is alleged that she asserted *Page 832 a right of interest in the property while Mrs. Cagle was asserting a right to have the deed to the defendant reformed; and that the defendant, confronted with these contentions, agreed to compromise by the execution of the will in question. We think the provisions of the Code, § 3-108, and the decisions of this court construing that section in Sheppard v. Bridges, 137 Ga. 615 (74 S.E. 245): Crawford v. Wilson, 139 Ga. 654 (78 S.E. 30, 44 L.R.A. (N.S.) 773), and Shropshire v. Rainey,150 Ga. 566 (104 S.E. 414), have no application as contended by the plaintiff in error. Equity encourages settlement of controversies by compromise, and especially family controversies. In Smith v. Smith, 36 Ga. 184, 191, it was said: "The earliest case, perhaps — certainly the leading case on the subject of family agreements — is that of Stapletonv. Stapleton, 1st Atkins' R. Lord Hardwicke says: `An agreement entered into upon a supposition of a right or of a doubtful right, though it afterwards comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties. The compromise of a doubtful right is a sufficient foundation for an agreement. Where agreements are entered into to save the honor of a family, and are reasonable, a court of equity will, if possible, decree performance of them.'" In that case it was held that by waiving advantages or rights conferred by the terms of a will, with knowledge of such terms at the time the agreement was entered into with a view to obtaining family harmony, such waiver furnished sufficient consideration without anything else for the agreement, and that the agreement superseded the terms of the will, and that it had become the law for the distribution of the estate and should be enforced. To the same effect see Belt v.Lazenby, 126 Ga. 767 (2, 3) (56 S.E. 81); Hinkle v.Hinkle, 148 Ga. 250 (96 S.E. 340); Preston v. Ham,156 Ga. 223, 234 (119 S.E. 658); Broderick v. Reid, 164 Ga. 474,482 (139 S.E. 18).
Whether or not as a matter of law Mrs. Cagle could have succeeded in reforming the deed to make it conform to what she insisted was the agreement, or whether the petitioner could have legally asserted an interest in the land involved, under the above decisions the settlement by the defendant of these family contentions is sufficient consideration to bind the defendant to the terms of the will. Therefore the petitioner is entitled to prosecute the *Page 833 present action to prevent destruction of the will or alienation of the property involved. The alleged facts were sufficient to authorize the court of equity to grant relief against the threatened injuries. A cause of action was alleged, and the court did not err in overruling the demurrer.
2. The defendant asserts that there were issues of fact which should have been submitted to a jury, and for this reason the court erred in directing the verdict. On the controlling question whether the will was executed in settlement or compromise of disputed claims there was no conflict in the evidence. For the purpose of this decision we may put aside all that had gone before, and look solely to the evidence relating to the execution of the will. While in an indirect manner the defendant, without directly contradicting the testimony of attorney Townsend, refused in his testimony to agree to what Townsend said, the defendant offered no evidence to contradict the positive testimony of Mrs. Justus that she had an agreement with Mrs. Cagle, by the terms of which she was to receive the property in question at Mrs. Cagle's death, and that she was asserting this claim to the property and requesting that the defendant provide by deed or will for the property to go to her at his death. Neither does he contradict her testimony to the effect that the will was executed in fulfillment of an agreement between the three that their respective claims of interest in the property should be thus adjusted or compromised. The evidence demanded the verdict for the petitioner. The court did not err in directing the verdict, and in overruling the motion for new trial.
Judgment affirmed. All the Justices concur.