The petition of a minor — brought by his father as next friend, alleging that a parol contract to make a will was entered into between the petitioner's father and mother, as individuals and as the natural guardians of the petitioner on the one hand, and his grandmother and the defendants on the other, and showing that a trust was created for the petitioner under the contract, so as to bring him within one of the exceptions to the general rule that a contract which bestows benefits upon a stranger thereto may not be enforced by the latter — was sufficient as against general demurrer to set forth a cause of action.
No. 15966. OCTOBER 23, 1947. Thomas J. Burke Jr., a minor, by his father as next friend, Thomas J. Burke, filed in Chatham Superior Court, against Ellen Burke Veruki, as administratrix of the estate of Mary Ann Burke, and Mary Burke Harmon and Lucille Burke Myers, a petition which alleged substantially the following: Thomas J. Burke, the petitioner's father, and the defendants are the children of Mary Ann Burke, and are entitled as heirs at law to share in the distribution of her estate. Mary Ann Burke at the time of her death was seized and possessed of a described city lot located at 22 Habersham Street, upon which was a two-story frame house valued at approximately $3000. Prior to February, 1940, Thomas J. Burke and Mrs. Rosemary Dean Burke, the father and mother of the petitioner, were living at 512 East Bryan Street, when it was suggested to his father and mother by the defendants that the children thought that, due to the age and infirmity of their mother, the petitioner's parents, together with himself, should dismantle their home and move into the home occupied by Mary Ann Burke, the grandmother of the petitioner, to provide for her, as she was then alone and because of her age in constant need of comfort, care, and attention. After conversations between all of the children of the petitioner's grandmother, a parol contract was entered into between the petitioner's father and mother, as individuals and as natural guardians of the petitioner, the grandmother, and the defendants, in which it was agreed that — in consideration of the parents of the petitioner and himself moving into the home of the mother of his parents and agreeing to live with her and to provide and care for her and minister to her needs and desires, and in consideration of the love and affection which she would derive from the constant companionship and association with the petitioner, and in further consideration of their agreeing to care for and support her and to keep the home in a reasonable state of repair — upon the death of the grandmother, she would devise the property to the petitioner, her minor grandchild, in appreciation and in consideration and in return for the material acts done for her and the love and comfort and pleasure which she would derive from being constantly together with said minor child, of whom she was extremely fond. In accordance with the agreement, the petitioner and his parents did move into the home of his grandmother and he and his father have been living there ever *Page 846 since. The mother of the petitioner died in February, 1945, and his grandmother, the owner of the property, died in November, 1946. The petitioner and his parents carried out all the terms and conditions of the contract, but the grandmother did not make a will in compliance with her agreement, and died intestate. On May 9, 1947, Mrs. Ellen Burke Veruki qualified as administratrix of the estate of her mother, the grandmother of the petitioner, and on the same date filed an application in the court of ordinary for leave to sell the property. The prayers were for a specific performance of the oral contract to make a will, and for injunction to restrain a sale of the land by the administratrix.
The court overruled a general demurrer interposed by the defendants, and they excepted. This case was assigned to the writer to present the opinion of the majority of the court. It does not represent the writer's views, as will appear in a dissent attached hereto.
The allegations of the petition show full performance of all obligations undertaken by the plaintiff's parents as the consideration for the promise of the deceased to leave a will bequeathing the property in question to the plaintiff. The case as made by the petition is on principle precisely the same as if a contract had been made for the purchase of realty and the full amount of the purchase-money had been paid in compliance with the contract. In such a case, the vendee would have a perfect equity, which would be good title even at law, and which would be sufficient either to support or defeat an action in ejectment. In this case, the contract was made by the plaintiff's father for the benefit of the plaintiff child, and therefore full performance of all the obligations undertaken by the father or by the father and mother would result in a perfect equitable title in the plaintiff, for whose benefit the contract was made; and therefore whoever held the legal title after the death of the grandmother necessarily held it in trust for the plaintiff. In these circumstances, the plaintiff, though not himself a party to the original contract, was entitled to maintain the action for specific performance under the allegations in his petition. See, in this connection, Code, § 37-802; Belt v. Lazenby, *Page 847 126 Ga. 767 (5) (56 S.E. 81); Sheppard v. Bridges,137 Ga. 615 (74 S.E. 245); May v. Sorrell, 153 Ga. 47, 53 (111 S.E. 810); Copelan v. Monfort, 153 Ga. 558 (3), 567 (113 S.E. 514); Evans v. Sawilowsky, 179 Ga. 547 (4), 556 (176 S.E. 625); Strickland v. Jenkins, 198 Ga. 15 (31 S.E.2d 18); Long v. Godfrey, 198 Ga. 652 (32 S.E.2d 306).
If the views here expressed should be in conflict with the ruling in Shropshire v. Rainey, 150 Ga. 566 (3) (104 S.E. 414), it will be observed that the decision in that case was not concurred in by all the Justices (one dissenting), and therefore is not controlling as authority.
The present case is distinguished by its facts from Avary v.Avary, 202 Ga. 22 (41 S.E.2d 314), where no right of the beneficiaries to sue upon a contract was involved. In that case James Corbin Avary filed a claim to property which had been levied upon under an execution, and in support of his claim alleged that during December, 1939, he made an agreement with his uncle, Dr. Avary, wherein the latter agreed with him and his wife that, if they would move into the house with him and keep house and care for him during the remainder of his life, he would make a will giving the two minor children of the claimant all of his property. The claimant further alleged that later he and Dr. Avary entered into an agreement under which the latter by deed conveyed the property to the claimant, in order to remove any doubt about the validity of his will, and this was done, except that, at the suggestion of the claimant, a life estate in the property was reserved by the grantor.
It was contended by the plaintiff in execution that this agreement was invalid for the reason that the parties thereto could not thus bargain away the rights of the minor children as beneficiaries under the original contract, and in the opinion by this court it was said arguendo that the children could not have maintained an action on the contract in their own name if there had been a breach of it on the part of Dr. Avary. However, they were not seeking to maintain any action upon the contract, and the only question for determination was whether thereafter the claimant and Dr. Avary had a right to modify the contract between them without the consent of such minor beneficiaries. Accordingly, that decision is not controlling here. And especially is this true, since the allegations *Page 848 in that case did not show complete performance of the contract so as to give rise to a perfect equity in such minor beneficiaries; whereas in the instant case a perfect equity in the child, the equivalent of legal title, was shown. There was also one dissent in that case.
It follows that the petition was sufficient to set forth a cause of action, and the trial court did not err in overruling the general demurrer interposed by the defendants.
Judgment affirmed. All the Justices concur, except Atkinson,J., who dissents, and Wyatt, J., who took no part in theconsideration or decision of this case.