{ "id": 8564344, "name": "DONALD G. RAPE, CAROLINE C. RAPE and LARRY A. RAPE v. WOODROW W. LYERLY and wife, SUDIE D. LYERLY, KATHERINE L. MACK and husband, PHILIP MACK and A. GRAY LYERLY", "name_abbreviation": "Rape v. Lyerly", "decision_date": "1975-06-26", "docket_number": "No. 94", "first_page": "601", "last_page": "625", "citations": [ { "type": "official", "cite": "287 N.C. 601" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "208 S.E. 2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "23 N.C. App. 241", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549269 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/23/0241-01" ] }, { "cite": "169 S.E. 645", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "opinion_index": 0 }, { "cite": "204 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624929 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/nc/204/0747-01" ] }, { "cite": "129 S.E. 2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562414 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0686-01" ] }, { "cite": "83 S.E. 241", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1914, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "167 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271960 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/nc/167/0205-01" ] }, { "cite": "80 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690229 ], "opinion_index": 0, "case_paths": [ "/nc/80/0251-01" ] }, { "cite": "55 S.E. 709", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1906, "pin_cites": [ { "page": "710" } ], "opinion_index": 0 }, { "cite": "143 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656822 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/nc/143/0229-01" ] }, { "cite": "163 A. 497", "category": "reporters:state_regional", "reporter": "A.", "year": 1932, "opinion_index": 0 }, { "cite": "86 N.H. 66", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4413004 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nh/86/0066-01" ] }, { "cite": "28 Harv. 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"char_count": 57075, "ocr_confidence": 0.577, "pagerank": { "raw": 3.926698270970652e-07, "percentile": 0.9028580430750982 }, "sha256": "38c1990b5a65244c94fccd5d2ebf947da306208e6cc123f88c541560caecca28", "simhash": "1:3142404b09cbbebb", "word_count": 9748 }, "last_updated": "2023-07-14T16:20:34.133436+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Copeland and Exum did not participate in the hearing or decision of this case." ], "parties": [ "DONALD G. RAPE, CAROLINE C. RAPE and LARRY A. RAPE v. WOODROW W. LYERLY and wife, SUDIE D. LYERLY, KATHERINE L. MACK and husband, PHILIP MACK and A. GRAY LYERLY" ], "opinions": [ { "text": "SHARP, Chief Justice.\nWe consider first defendants\u2019 contentions (1) that the evidence was insufficient to warrant a finding that Mr. Jim contracted to devise his real property as alleged by plaintiffs and (2) that the writing signed by Mr. Jim was insufficient to comply with G.S. 22-2, our statute of frauds. . .\nAlthough an oral contract to devise land is unenforceable, Pickelsimer v. Pickelsimer, 257 N.C. 696, 698, 127 S.E. 2d 557, 559 (1962), a valid written contract to devise land is enforceable in equity. Schoolfield v. Collins, 281 N.C.- 604, 615-16, 189 S.E. 2d 208, 215 (1972).\n\u201cAn annotation following Naylor v. Shelton, 102 Ark. 30, 143 S.W. 117, Ann. Cas. 1914A, 394 (1912), contains this statement: \u2018[W]hile a court of chancery is without power to compel the execution of a will, and therefore the specific execution of an agreement to make a will, cannot be enforced, yet if the contract is sufficiently proved and appears to have been binding on the decedent and the usual conditions relating to specific performance have been complied with, then equity will specifically enforce it by seizing the property which is the subject matter of the agreement, and fastening a trust on it in favor of the person to whom the decedent agreed to give it by his will.\u2019 Ann. Cas. 1914A at 399. This statement is quoted with approval in Stockard v. Warren, supra at 285, 95 S.E. at 580, and in Clark v. Butts, 240 N.C. 709, 714, 83 S.E. 2d 885, 889 (1954).\u2019\u2019 Schoolfield v. Collins, supra at 616, 189 S.E. 2d at 215.\nPlaintiffs rely upon the 1959 will, specifically the paragraph thereof designated \u201cFourth,\u201d as a memorandum of a valid contract to devise land in compliance with G.S. 22-2. Its sufficiency as a contract must be determined by application of legal principles stated by Justice Rodman in McCraw v. Llewellyn, 256 N.C. 213, 217, 123 S.E. 2d 575, 578, 94 A.L.R. 2d 914, 920 (1962), as follows: \u201cThe mere exercise of the'statutory right to dispose of one\u2019s property at death is not of itself evidence that the disposition directed is compelled by a contractual obligation. The writing must show the promise or obligation which the complaining party seeks to enforce. (Citations omitted.)\u201d (Our italics.)\nIn Mayer v. Adrian, 77 N.C. 83, 88 (1877), Justice Bynum, for the Court stated: \u201cThe agreement must adequately express the intent and obligation of the parties. Parol evidence cannot be received to supply anything which is wanting in the writing to make it the agreement on which the parties rely.\u201d (Our italics.) This statement is quoted with approval in Chason v. Marley, 224 N.C. 844, 845, 32 S.E. 2d 652, 653 (1945), and McCraw v. Llewellyn, supra at 217, 123 S.E. 2d at 578, 94 A.L.R. 2d at 920. See Restatement, Contracts, Second, Tentative Drafts Nos. 1-7, Revised and Edited \u00a7 207 (1973).\nThe memorandum on which plaintiffs rely designates the property to be devised, identifies the parties, sets forth their respective obligations as consideration for their contract, and is signed by Mr. Jim, the party to be charged therewith. Hence, it was sufficient as a memorandum to devise \u201cfor the purposes of the statute of frauds.\u201d 72 Am. Jur. 2d, Statute of Frauds \u00a7 304 (1974) ; Annot., \u201cStatute of frauds: will or instrument in form of will as sufficient memorandum of contract to devise or bequeath,\u201d 94 A.L.R. 2d 921, 931-84, 947-954. Moreover, being in the form of a will, the memorandum fixes the precise manner in which Mr. Jim is to dispose of his real property in performance of his obligations under the contract. The contract involved in Bumpus v. Bumpus, 53 Mich. 346, 19 N.W. 29 (1884), cited by defendants, was held unenforceable because of the vagueness of the obligations of the promisee.\nIn the Restatement, Contracts, \u00a7 207 at p. 279 (1932) and Restatement, Contracts, Second, supra at 464, after stating the general requisites of a memorandum, in order to make enforceable a contract within the Statute of Frauds, this illustration is given: \u201cA makes an oral contract with B to devise Blackacre to B, and executes a will containing the devise and a recital of the contract. The will is revoked by a later will. The revoked will is a sufficient memorandum to charge A\u2019s estate.\u201d\nThere was ample evidence to support the jury\u2019s affirmative answer to the first issue, a finding that Mr. Jim contracted to devise his real property to Mildred for the consideration and upon the conditions set forth in the paragraph designated \u201cFourth\u201d in the 1959 will. There was also ample evidence to support the jury\u2019s affirmative answer to the second issue, a finding that Mildred, during her lifetime, performed her obligations as contemplated by the contract.\nWe note here that Mildred, Basil, and the Rape children, had lived with Mr. Jim and Miss Pearl from 1945 until 1959. The evidence discloses that in 1959 (1) the five members of the Rape family could not continue to live in the Lyerly house unless additional rooms were provided; and that (2), having lived with Mildred, Basil, and the Rape children for the past fourteen years, Mr. Jim and Miss Pearl knew the kind of care they might reasonably expect in the days ahead, and they desired to continue the relationship with that family.\nWe further note that, beginning in 1946, the expenses of the two households, Woodrow\u2019s household and the Rape-Lyerly household, were paid from partnership funds, and that this continued throughout the subsistence of the formal partnership agreement between Woodrow and Basil, that is, until 1 August 1969. The evidence discloses that these payments, which bene-fitted Mr. Jim and Miss Pearl directly or indirectly, constituted the care provided by Woodrow in discharge of his obligations under the paragraph designated \u201cFourth\u201d of the 1959 will.\nDefendants contend, however, that even if the paragraph designated \u201cFourth\u201d was a valid contract to devise when Mr. Jim signed the 1959 will, it called for the personal services of Mildred and therefore terminated at Mildred\u2019s death.\nObviously the parties contemplated that Mildred would perform the services required to care for the personal needs of her mother and father in the home. Her health was good when the 1959 will was executed. Her malignancy was discovered in 1961. Successive recurrences after surgery ultimately caused her death in April of 1965.\nTo support their contentions, defendants cite Siler v. Gray, 86 N.C. 566 (1882), and Stagg v. Land Co., 171 N.C. 583, 89 S.E. 47 (1916). These decisions are cited in Peaseley v. Coke Co., 282 N.C. 585, 596, 194 S.E. 2d 133, 141 (1973), in support of the statement therein contained that many courts have held that contracts calling for the personal services of a salesman do not survive his death, \u201cthe rationale being that the death of the person who was to perform the personal services makes further performance impossible.\u201d\nNotwithstanding, \u201ceven though the contract is one which would terminate at the promisee\u2019s death, the promissor may waive this feature of the contract and does so where he permits others, associated with the promisee in his lifetime in rendering the performance, to continue after his death and accepts such performance without giving notice within a resonable time of an intention to consider the obligation as ended.\u201d 94 C.J.S., Wills \u00a7 117(d), p. 879 (1956). Accord, 57 Am. Jur. Wills \u00a7 175, p. 155 (1948) ; 1 Page on Wills, Section 10.25 (Bowe-Parker rev. 1960) ; Soper v. Galloway, 129 Iowa 145, 105 N.W. 399 (1905) ; Prater v. Prater, 94 S.C. 267, 77 S.E. 936 (1913). For the factual situation in Soper, supra, and for apposite quotations from the opinions in Soper and Prater, supra, reference is made to Judge Britt\u2019s opinion for the Court of Appeals. In Bourget v. Monroe, 58 Mich. 563, 25 N.W. 514 (1885), and in Parker v. Macomber, 17 R.I. 674, 24 A. 464, 16 L.R.A. 858 (1892), decisions cited by defendant, the promissor repudiated the contract to devise upon the death of the person whose services constituted the consideration for the contract and refused to accept the services of others in lieu thereof.\nFor present purposes, we assume that upon Mildred\u2019s death, Mr. Jim had the right to terminate the contract to devise on the ground that his obligation to devise depended upon the rendition of personal services by Mildred; and we further assume that neither Basil nor plaintiffs had a legal right to substitute their services for the services of Mildred. Suffice to say, Mr. Jim did not terminate the contract. On the contrary, the services which Mildred would have performed were rendered by Basil and plaintiffs and accepted by Mr. Jim and Miss Pearl. Moreover, there was plenary evidence that Mr. Jim was outspoken in his praise of the services he and his wife received both before and after Mildred\u2019s death and by him until his own death. Instead of seeking to terminate the contract embodied in the 1959 will, the evidence is to the effect that Mr. Jim considered that Basil and plaintiffs were obligated to render and provide the services Mildred would have rendered and provided had she outlived her parents. There was ample evidence to support the jury\u2019s affirmative answer to the third issue, a finding that, following the death of Mildred, care was furnished Miss Pearl and Mr. Jim by or on behalf of plaintiffs as contemplated by the contract until both died, and that Mr. Jim accepted such services \u201cin fulfillment of the said agreement.\u201d\nDefendants further contend that, by operation of law and by provisions therein, the 1969 will revoked the 1959 will.\n\u201c \u2018Revocation\u2019 has been defined as the avoiding and invalidating of an instrument which, but for the revocation, would have been the last will and testament of the party by whom it was executed.\u201d 95 C.J.S., Wills \u00a7 262, p. 30 (1957). As stated In re Estate of Ramthun, 249 Iowa 790, 798, 89 N.W. 2d 337, 341-42 (1958) : \u201cAll wills are by nature ambulatory, and thus their provisions may be changed prior to death by the maker unless by contractual provisions others\u2019 rights thereunder become fixed. In other words, a will is revocable only to the extent that the testator has not contracted to make it irrevocable, [citations omitted].\u201d (Our italics.)\nThe applicable legal principles are well stated in Estate of McLean, 219 Wis. 222, 227-228, 262 N.W. 707, 710 (1935), as follows: \u201cA will made under an agreement based upon a valuable consideration is contractual as well as testamentary, and equity will enforce the provision made for the promisee. A will so made cannot be revoked by the testator so as to defeat the bequest or devise made by it pursuant to his agreement. Nor can the testator destroy the effect of a provision therein so made by making a subsequent disposition by will of the property so devised or bequeathed by the first will. He cannot so avoid his contract which he has performed. His heirs can gain no advantage by his revocation, if he revoke the will, nor can devisees or legatees under a subsequent will gain any. The execution of the will pursuant to the promise creates a trust in the property devised or bequeathed pursuant to the contract which will be enforced in equity against the heirs or those claiming under a subsequent will.\u201d These legal principles are applicable and have been applied to factual situations such as that now under consideration. Nelson v. Schoonover, 89 Kan. 388, 131 P. 147 (1913) ; Torgerson v. Hauge, 34 N.D. 646, 159 N.W. 6, 3 A.L.R. 164 (1916).\nIn the Annotation, \u201cRight to Revoke Will Executed Pursuant to Contract,\u201d 3 A.L.R. 172 (1919), the author states: \u201cThe general rule is, therefore, that a will executed pursuant to a contract cannot be revoked so as to relieve the testator of its contractual obligation.\u201d In addition to Nelson, supra, and Torgerson, supra, the following decisions involving factual situations in which personal services performed and to be performed were the consideration for the promise to devise land, are cited in support of the quoted statement: Bolman v. Overall, 80 Ala. 451, 2 So. 624, 60 Am. Rep. 107 (1886) ; Smith v. Tuit, 127 Pa. 341, 17 A. 995, 14 Am. St. Rep. 851 (1889), Second appeal, Tuit v. Smith, 137 Pa. 35, 20 A. 579 (1890) ; Bruce v. Moon, 57 S.C. 60, 35 S.E. 415 (1900). Later decisions to the same effect include the following: Goodin v. Cornelius, 101 Or. 422, 200 P. 915 (1921) ; Brock v. Noecker, 66 N.D. 567, 267 N.W. 656 (1936); White v. Smith, 43 Idaho 354, 253 P. 849 (1926); Johnston v. Tomme, 199 Miss. 337, 24 So. 2d 730 (1946). Also see Remele v. Hamilton, 78 Ariz. 45, 275 P. 2d 403 (1954), and Cagle v. Justus, 196 Ga. 826, 28 S.E. 2d 255 (1943), and cases cited therein.\nThe 1969 will contained an \u201cin terrorem\u201d clause, providing in part that - \u201cif any person entitled to any legacy, bequest or devise under the terms of this Will shall, directly or indirectly, . . . institute any proceedings, suit or action, for the purpose of . . . changing the effect of this Will, wholly or in part, then and in that event, all the legacies, bequests or devises declared in favor of such person by this Will . . . shall immediately thereupon be revoked and become wholly void and of no effect.\u201d Based on this provision, defendants alleged as a counterclaim that plaintiffs, by the institution of this action, had forfeited the rights to which they would have been entitled under the 1969 will.\nThe counterclaim was properly dismissed since the rights of plaintiffs under the 1959 will had become irrevocable. The \u201cin terrorem\u201d clause in the 1969 will was irrelevant in respect of the claim asserted by plaintiffs in this action. Plaintiffs have asserted no claim under the 1969 will. Also, there was ample evidence to support the jury\u2019s affirmative answer to the fourth: issue, a finding that this action was brought in good faith. In this connection, see Ryan v. Trust Co., 235 N.C. 585, 588, 70 S.E. 2d 853, 855 (1952) ; and Haley v. Pickelsimer, 261 N.C. 293, 134 S.E. 2d 697 (1964).\nDefendants further contend plaintiffs did not commence this action within three months from the rejection by defendants\u2019 counsel of plaintiffs\u2019 claim as set forth in a letter from plaintiffs\u2019 attorney to defendants.\nG.S. 28-112, on which defendants base their contention, does not apply. These statutes refer to claims of creditors of an estate, payable out of the assets of the estate. Plaintiffs assert no claim against the estate of Mr. Jim. Nor have they filed any claim with the executrix thereof. They assert present equitable ownership of the real property under the 1959 contract to devise, contending the beneficial interest in such real property did not pass under the 1969 will and did not become a part of Mr. Jim\u2019s estate.\nThe three-year statute of limitations for breach of contract, G.S. 1-52(1), did not begin to run until Mr. Jim\u2019s death. Stewart v. Wyrick, 228 N.C. 429, 432, 45 S.E. 2d 764, 766 (1947) ; Speights v. Carraway, 247 N.C. 220, 222, 100 S.E. 2d 339, 341 (1957). This action was commenced well within this limitation.\nDefendants, seeking to invoke the equitable defense of laches, contend this action is barred because of plaintiffs\u2019 delay in commencing it. The contention is without merit. The doctrine of laches applies only when circumstances have so changed during the lapse of time it would be inequitable and unjust to permit the prosecution of the action. Teachey v. Gurley, 214 N.C. 288, 294, 199 S.E. 83, 88 (1938).\nAccording to uncontradicted evidence, Woodrow read the 1959 will shortly after Mr. Jim signed it. To what extent, if any, the other defendants were advertent to the exact provisions thereof is unclear. It is implicit in the evidence, however, that the entire Lyerly family knew that the Rapes had been promised the homeplace at Mr. Jim\u2019s death. Mrs. Mack was fully aware that the 1969 will changed the provisions of the prior will to the detriment of plaintiffs. All defendants were fully advised of plaintiffs\u2019 claim and the basis therefor shortly after Mr. Jim\u2019s death. Plaintiffs continued in possession of the subject property. They did not participate in any way in the administration of the personal estate under the 1969 will, nor did they accept any distribution from Mr. Jim\u2019s personal estate. This factual situation discloses no change in circumstances sufficient to invoke the doctrine of laches.\nAssuming their motion for a directed verdict was properly denied, defendants contend a new trial should be awarded because of errors in the conduct of the trial. They assign as error the admission over their objection of the testimony of Basil concerning what was said and done when Mr. Jim produced the 1959 will, submitted it to Mildred, Basil, and Woodrow, for reading and approval, and delivered it to Basil for safekeeping. They contend that Basil\u2019s testimony was incompetent under G.S. 8-51 in that he was a person interested in the outcome of this action against the devisees of Mr. Jim and that he was testifying in his own behalf against those devisees with reference to a personal transaction between himself and Mr. Jim.\nFor conditions prerequisite to the disqualification of a witness under G.S. 8-51, see Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043 (1890) ; Peek v. Shook, 233 N.C. 259, 261, 63 S.E. 2d 542, 543 (1951) ; Sanderson v. Paul, supra at 58-59, 69 S.E. 2d at 158; 1 Stansbury\u2019s N. C. Evidence, \u00a7 66 (Brandis Rev. 1973).\nParenthetically, we note here that Basil is not a party to this action. Defendants\u2019 motion to dismiss this action upon the ground that Basil is a necessary party was denied by the judge presiding at the October 1972 Session. We also note that Basil filed in the Court of Appeals a disclaimer of any interest in the real property formerly owned by Mr. Jim. Notwithstanding, the question is whether Basil had a legal pecuniary interest in the event of the action at the time he was examined as a witness at trial. Sanderson v. Paul, 235 N.C. 56, 61, 69 S.E. 2d 156, 160 (1952).\nIt may be conceded Basil\u2019s testimony that Mr. Jim delivered the 1959 will to him for safekeeping was a personal transaction within the meaning of G.S. 8-51. Obviously, both Mr. Jim and Woodrow contemplated that Basil would cooperate with Mildred and assist her in the discharge of her obligations under the 1959 contract-will. However, this document imposed no legal obligation on Basil to perform personal services for Miss Pearl and Mr. Jim. Nor did it impose any obligation on Mr. Jim to devise his real property or any interest therein to Basil. Since decision is based on the ground stated below, it is unnecessary to decide whether the fact that Basil was present and saw and heard what occurred when the 1959 contract was entered into between Mildred, Mr. Jim, and Woodrow, constituted a personal transaction between Basil and Mr. Jim. In this connection, see 1 Stansbury, supra at \u00a7 73, p. 223.\nAlthough a \u201cperson interested in the event\u201d of the action is disqualified, his interest must be a \u201cdirect legal or pecuniary interest\u201d in the outcome of the litigation. \u201cThe key word in this phrase is \u2018legal,\u2019 the cases as a whole showing that the ultimate test is whether the legal rights of the witness will be affected one way or the other by the judgment in the case. The witness may have a very large pecuniary interest in fact \u2014 as the interest of a wife in an important law suit to which her husband is a party \u2014 and still be competent, while a comparatively slight' legal interest will disqualify the witness.\u201d 1 Stansbury, supra at \u00a7 69, p. 211, and cases there cited.\nPlaintiffs do not claim ownership of Mr. Jim\u2019s property as heirs of their mother. They base their claim solely on the 1959 contract-will. The obligations assumed by Mildred, having been fully performed on her behalf and accepted by Mr. Jim in fulfillment of the contract until his death on 23 November 1970, plaintiffs contend the attempt by means of the (secret) 1969 will to change the disposition of Mr. Jim\u2019s real property constituted a breach of contract and, in respect of the real property, did not revoke the 1959 contract.\n\u201c[A] decree for specific performance is nothing more or less than a means of compelling a party to do precisely what he ought to have done without being coerced by a court.\u201d 71 Am. Jur. 2d, Specific Performance \u00a7 1, p. 10 (1973). Accord, McLean v. Keith, 236 N.C. 59, 71, 72 S.E. 2d 44, 53 (1952).\n\u201cIt is sometimes said that the will is irrevocable in equity, but the meaning of that simply is that while equity knows that the will has been revoked, it will nevertheless decree that the property shall be held for those who would have taken if the will had not been revoked.\u201d C\u00f3nstigan, Constructive Trusts Based on Promises Made to Secure Bequests, Devises, or Intestate Succession, 28 Harv. L. Rev. 237, 250 (1915), quoted in Knox v. Perkins, 86 N.H. 66, 163 A. 497 (1932).\nThe foregoing impels the conclusion that the rights of plaintiffs are determinable as if Mr. Jim had died leaving a valid, probated will, in which he devised his real property in the manner set forth in the paragraph designated \u201cFourth\u201d in the 1959 contract-will. Had he done so, plaintiffs would take as the issue of Mildred by virtue of G.S. 31-42 (a) which provides: \u201cUnless a contrary intent is indicated by the will, where a devise or legacy of any interest in property is given to a devisee or legatee who would have taken individually had he survived the testator, and he dies survived by issue before the testator, whether he dies before or after the making of the will, such devise or legacy shall pass by substitution to such issue of the devisee or legatee as survive the testator in all cases where such issue of the deceased devisee or legatee would have been an heir of the testator under the provisions of the Intestate Succession Act had there been no will.\u201d (Our italics.)\nPlaintiffs having acquired ownership as issue of Mildred, Basil had no pecuniary legal interest in plaintiffs\u2019 real property; therefore, his testimony was not incompetent under G.S. 8-51. For the same reasons, he was not a necessary party to this action.\nIn Linebarger v. Linebarger, 143 N.C. 229, 55 S.E. 709 (1906), cited by defendants, the Court held the wife of one of the caveators, a son of the testator, was not a competent witness to declarations of the testator. Basing decision on the statute now codified as G.S. 8-51, the Court said: \u201cIt is clear that if the caveators succeeded in their contention, the husband of the witness, as one of the heirs at law, became the owner of an undivided interest in the real estate. It is well settled by a number of decisions that the wife immediately upon the seizin, either in law or deed of the husband, becomes entitled to \u2018an inchoate right of dower or estate in the land\u2019 of her husband. [Citations omitted.] She therefore had an interest in the property dependent upon the result of the controversy and, under the ruling in Pepper v. Broughton, 80 N.C. 251, was incompetent.\u201d Id. at 231, 55 S.E. at 710.\nIn Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241 (1914), in the husband\u2019s action against the administrator to recover compensation for personal services rendered to the decedent, the Court held plaintiff\u2019s wife was a competent witness to declarations of the decedent. The Court noted that \u201cthe wife had no interest [within the meaning of G.S. 8-51], as upon a recovery by the plaintiff no right growing out of the married relationship would attach to the money recovered.\u201d The Court further noted that Linebarger v. Linebarger, supra, was \u201cnot in point, because the property in controversy was land, and the wife\u2019s inchoate right to dower attached immediately upon the recovery by her husband.\u201d Id. at 205-206, 83 S.E. at 241. For the reasons noted in Helsabeck v. Doug, supra, Linebarger is not applicable to the facts of the case we are considering.\nDefendants also assign as error, based on G.S. 8-51, the admission over their objection of portions of Basil\u2019s testimony with reference to personal services he and plaintiffs performed for Miss Pearl and Mr. Jim. For the reason discussed above, this contention is without merit. In this connection, we note that Basil was cross-examined at length with reference to such services; that Mr. Jim\u2019s brother and sister, Miss Pearl\u2019s nephew, Mr. Jim\u2019s friends and neighbors, also testified to such services and to Mr. Jim\u2019s statements of satisfaction with reference thereto; and that two of the plaintiffs (Donald and Caroline) testified, without objection, with reference thereto.\nDefendant also assigns as error the admission of testimony of oral statements made by Mr. Jim to various relatives and neighbors concerning the arrangement he had made for the care of himself and of Miss Pearl. This testimony, much of which was admitted without objection, was the subject of extensive cross-examination as well as direct examination. It was competent as tending to show that Mr. Jim regarded the arrangement he had made as contractual, as contended by plaintiffs and denied by defendants, not to prove an oral agreement. Admittedly, plaintiffs\u2019 recovery must be on the 1959 contract-will, irrespective of any variations in declarations Mr. Jim may have made to relatives and neighbors relative to the exactness of the agreement he had made.\nThe testimony of statements made by Mr. Jim relating to the arrangement he had made for the lifetime care of himself and his wife, as well as those relating to his appreciation and acceptance of the services rendered, was competent, these statements being declarations against interest and inconsistent with a right to avoid the obligations of the 1959 contract-will. Smith v. Perdue, 258 N.C. 686, 129 S.E. 2d 293 (1963) ; Hager v. Whitener, 204 N.C. 747, 169 S.E. 645 (1933) ; 1 Stansbury, supra at \u00a7 147, pp. 493-499. On the other hand, the statements attributed to Mrs. Mack were self-serving declarations which, upon objection, should have been excluded.\nAll of defendants\u2019 remaining assignments of error have been considered. None discloses prejudicial error or presents a legal question of sufficient significance to merit discussion.\nThe evidence fully supported the verdict, and the judgment based thereon is in accordance with applicable law. Hence, the decision of the Court of Appeals is affirmed.\nAffirmed.\nJustices Copeland and Exum did not participate in the hearing or decision of this case.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Kluttz and Hamlin by Lewis P. Hamlin, Jr., Richard R. Reamer, and Malcolm B. Blankenship, Jr., for plaintiff appellees.", "Collier, Harris, Homesley, Jones & Gaines by Walter H. Jones, Jr., for defendant appellants." ], "corrections": "", "head_matter": "DONALD G. RAPE, CAROLINE C. RAPE and LARRY A. RAPE v. WOODROW W. LYERLY and wife, SUDIE D. LYERLY, KATHERINE L. MACK and husband, PHILIP MACK and A. GRAY LYERLY\nNo. 94\n(Filed 26 June 1975)\n1. Frauds, Statute of \u00a7 7; Wills \u00a7 2 \u2014 contract to devise land \u2014 writing required\nAlthough an oral contract to devise land is unenforceable, a valid written contract to devise land is enforceable in equity.\n2. Wills \u00a7 2 \u2014 contract to devise \u2014 obligation required to be stated in will\nThe 'mere exercise of the statutory right to dispose of one\u2019s property at death is not of itself evidence that the disposition directed is compelled by a contractual obligation; rather, the writing must show the promise or obligation which the complaining party seeks to enforce.\n3. Frauds, Statute of \u00a7 7; Wills \u00a7 2 \u2014 contract to devise real property \u2014 sufficiency of memorandum\nIn an action to enforce an alleged agreement to devise real property for a stated consideration upon specified conditions, the memorandum upon which plaintiffs relied was sufficient as a memorandum to devise for the purposes of the statute of frauds where the memorandum designated the property to be devised, identified the parties, set forth their respective obligations as consideration for their contract, and was signed by the party to be charged therewith; moreover, being in the form of a will, the memorandum fixed the precise manner in which the testator was to dispose of his real property in performance of his obligations under the contract.\n4. Wills \u00a7 2 \u2014 contract to devise land \u2014 promise to care for testator \u2014 performance of obligation\nEvidence was sufficient to support the jury\u2019s findings that testator contracted to devise his real property to his daughter and that the daughter performed her obligations as contemplated by the contract where such evidence tended to show that testator\u2019s will contained a provision devising his real property to the daughter upon her obligation to care for testator and his wife during their lives and to pay to three other children sums totalling $8000, the daughter did- live with testator and care for him and his wife until the daughter died, and testator expressed to many people his satisfaction with the daughter\u2019s care of him.\n5. Wills \u00a7 2\u2014 contract to devise \u2014 death of promisee \u2014 substitution of parties \u2014 contract continued\nEven though a contract is one which would terminate at the promisee\u2019s death, the promisor may waive this feature of the contract and does so where he permits others, associated with the promisee in his lifetime in rendering the performance, to- continue after his death and accepts such performance without giving notice within a reasonable time of an intention to consider the obligation as ended.\n6. Wills \u00a7 2 \u2014 -contract to devise \u2014 death of promisee \u2014 substitution of promisee\u2019s family\nIn an action to enforce an alleged agreement by testator to devise his real property to his' daughter Mildred upon her obligation to care for him and his wife and to pay his other three children specified sums, evidence was sufficient to support the jury\u2019s finding that, following the death of Mildred, care was furnished testator and his wife by Mildred\u2019s husband and children as contemplated by the contract until both died and that testator accepted such services in fulfillment of the agreement.\n7. Wills \u00a7 8 \u2014 revocation \u2014 contractual provisions irrevocable\nAll wills are by nature ambulatory, and thus their provisions may be changed prior to death by the maker unless by contractual provisions others\u2019- rights thereunder become fixed; in other words, a will is revocable only to the extent that the testator has not contracted to make it irrevocable.\n\u25a08. Wills \u25a0 \u00a7 60\u2014 \u201cin terrorem\u201d clause \u2014 irrelevance \u2022\u2014 action brought ill .. 'good faith \u2022 .\n\u25a0 An \u201cin terrorem\u201d clause in testator\u2019s 1969 will was irrelevant in respect of the claim asserted- by plaintiffs in this- action, since the claim they asserted was under testator\u2019s 1969 rather than 1969 will; also, there was ample evidence to support the jury\u2019s finding that this action was brought by plaintiffs in good faith.\n\u20229. Executors and Administrators \u00a7 19; Limitation of Actions \u00a7 4 \u2014 contract to devise land \u2014 three-year statute of limitations applicable\nPlaintiffs were not required to commence this action within the time prescribed in G.S. 28-112 since they asserted no claim against the estate of testator; rather plaintiffs asserted present equitable ownership of testator\u2019s real property under a 1959 contract to devise, and the applicable statute of limitations was the three-year statute for breach of contract, G.S. 1-62(1), which did not begin to run until testator\u2019s death.\n10. Equity \u00a7 2 \u2014 contract to devise land \u2014 laches in bringing action for breach \u2014 'insufficient evidence of changed circumstances\nThere was no change of circumstances sufficient to invoke the doctrine of laches in an action to enforce an alleged agreement to devise real property where the evidence tended to show that one defendant read the 1969 will which contained the promise to devise shortly after it was made, all. defendants knew that plaintiffs had been promised certain real property upon the death of testator, one defendant was fully aware that a subsequent will changed the provisions of the prior will to the detriment of plaintiffs, all defendants were fully advised of plaintiffs\u2019 claim and the basis therefor shortly after testator\u2019s death, and plaintiffs continued in possession of the . subject property as they had prior to testator\u2019s death.\n11. Evidence \u00a7 11; Rules of Civil Procedure \u00a7 19 \u2014 father'of plaintiffs \u2014 '. no legal pecuniary interest \u2014 testimony of transaction with decedent admissible \u2014 father not necessary party\nIn an action to enforce an alleged agreement by testator to devise -\u25a0 his real property to plaintiffs\u2019 mother, a child of testator\u2019s who predeceased him, .upon her obligation to care for testator and his wife until their deaths, the rights of plaintiffs were determinable as if testator had died leaving a valid, probated will in which he devised his property according to the alleged agreement. Had he done so, plaintiffs would take as the issue of their mother by virtue of G.S. 31-42(a); therefore, their father had no pecuniary legal interest in plaintiffs\u2019 real property, and his testimony concerning what was done . when testator produced the will containing the alleged agreement was not incompetent under G.S. 8-61, nor was the father a necessary party to this action.\nJustices Copeland and Exum did not participate in the hearing or decision of this case.\nAppeal of right under G.S, 7A-30 (2) from the decision of the Court of Appeals reported in 23 N.C. App. 241, 208 S.E. 2d 712 (1974), which found \u201cNo Error\u201d in the trial before Judge Crissman at the 28 January 1974 Session of Rowan Superior Court, docketed and argued in the Supreme Court at the Fall Term 1974 as Case No. 125.\nThis is an action to enforce an alleged agreement by James Richard Lyerly to devise his real property in Steele Township, Rowan County, for a stated consideration and upon specified conditions.\nPlaintiffs are the children of B. M. Rape (Basil) and Mildred Lyerly Rape (Mildred), deceased daughter of James Richard Lyerly (Mr. Jim) and his wife, Pearl S. Lyerly (Miss Pearl). Mildred died 3 February 1965. Miss Pearl died in October 1966. Mr. Jim died 23 November 1970 at the age of 85 years and six months.\nDefendants Woodrow W. Lyerly (Woodrow), Katherine Lyerly Mack (Katherine), and A. Gray Lyerly (Gray), are children of Mr. Jim and Miss Pearl.\nPlaintiffs base their claim upon the following provisions of a writing duly executed by Mr. Jim on 21 March 1959 as an attested will, referred to hereinafter as \u201cthe 1959 will.\u201d\n\u201cFourth: It is my opinion that $16,000.00 is a fair market value of my real property lying in Steele Township, Rowan County, N. C. Since my daughter, Mildred Lyerly Rape and my son, Woodrow W. Lyerly have obligated themselves to care for my wife and myself during our lifetime, all of my real property, I give and bequeath to Mildred Lyerly Rape upon payment by her to the following: 1st. To my son, Woodrow W. Lyerly the sum of $6,000.00 2nd. To my son, Gray Lyerly the sum of $1,000.00 3rd. To my daughter, Katherine Lyerly Mack the sum of $1,000.00.\u201d\nPlaintiffs alleged the obligation to care for Miss Pearl and Mr. Jim during their lifetime was fully performed, but that Mr. Jim breached his agreement by executing an attested will on 4 September 1969, probated as his Last Will and Testament in November of 1970, in which he attempted to devise the major portion of his real property to defendants. They further alleged defendants\u2019 refusal to convey the property devised to their mother, Mildred, in the 1959 will after plaintiffs\u2019 demand therefor and the tender by them of all monies specified therein.\nPlaintiffs claim all of Mr. Jim\u2019s real property under the provisions of the 1959 will.\nDefendants denied plaintiffs\u2019 essential allegations and, as further defenses, pleaded (1) the statute of frauds, (2) a statute of limitation, and (8) laches. They claim the major portion of Mr. Jim\u2019s real property as devisees under the 1969 will.\nIn the 1959 will, Mr. Jim bequeathed to his wife, Miss Pearl, his household goods and his bank account with the Northwestern Bank of Cleveland, N. C. He bequeathed to Woodrow W. Lyerly (Woodrow), his son, and to Basil, his son-in-law, all other personal property belonging to his estate, \u201cincluding livestock, farming machinery, and a joint \u2019 bank account in the names of Woodrow W. Lyerly, B. M. Rape and [himself] with the First National Bank, Mooresville, North Carolina.\u201d He appointed Woodrow and Basil as co-executors.\nIn the 1969 will, Mr. Jim devised, or attempted to devise, his real property in Steele Township, Rowan County, as follows: He devised 27*4 acres to Woodrow. He devised a 71-acre tract in the following proportions: \u201c(a) One-third (1/3) interest to [his] daughter, Katherine L. Mack; (b) One-third (%) interest to [his] son, A. Grey (sic) Lyerly; (c) One-third (I/3) interest to the surviving issue of [his] deceased daughter, Mildred Ly-erly Rape, per stirpes and not per capita.\u201d He appointed his daughter, Katherine L. Mack, as executrix.\nUncontradicted evidence discloses the 1959 will was executed by Mr. Jim under the circumstances stated below.\nMildred and Basil were married 14 July 1943. Prior to Basil\u2019s return from his service with the armed forces in 1945, Woodrow and his wife had been living with Mr. Jim and Miss Pearl. Upon Basil\u2019s return, Woodrow and his wife moved to their own house and Basil and Mildred moved in with Mr. Jim and Miss Pearl.\nMitchell Cress, one of the witnesses to the 1959 will, testified that Mr. Jim told him Woodrow moved out because \u201cthe families couldn\u2019t get along\u201d; that \u201cthe personalities of the two ladies clashed.\u201d\nWoodrow, Mr. Jim and Basil began joint farming operations in the spring of 1946. Initially they farmed Mr. Jim\u2019s land and Woodrow\u2019s land. Basil acquired land in 1949 and in 1957. These tracts, and also two leased tracts, were included in their joint farming activities. These activities included the operation of a dairy, a venture conducted largely by Basil. The three maintained a joint bank account, to which reference was made by Mr. Jim in the 1959 will. Each had authority to write checks on this account for his personal obligations as well as those of the business. Annually, there was an accounting and settlement with reference to the interest of each partner.\nPrior to the execution of the 1959 will, only the downstairs portion of Mr. Jim\u2019s house was in use. A large hall ran from front to back. There was a front bedroom, a side bedroom, a living room (den), a dining room, and a kitchen. The side bedroom was occupied by Mr. Jim and Miss Pearl. The front bedroom was occupied by Mildred, Basil, and their three children. In 1959 Larry was about 14; Donald was about 10; and Caroline was about 8. The space upstairs, adequate for three rooms, had never been finished. In view of their compelling need for more room, Mildred and Basil were making plans to build a house on their own land. Shortly before the execution of the 1959 will, Basil approached Lewis Klutz, a neighbor and also a carpenter-builder, with reference to building a new house for his family, stating he was \u201cgoing to move out on his own.\u201d Plaintiffs, the Rape children,- were \u201clooking forward to . . . being able to have their friends in and not be tied all the time.\u201d\nAs the building plans of Mildred and Basil took shape, Mr. Jim made them a proposition. He said to Basil: \u201cNow, if y\u2019all will stay here and live with me and mamma so long as we live, you can do anything you want to this house and we\u2019ll make you safe.\u201d He also told Basil that he was going to live with his family; \u201cthat he didn\u2019t have any other child he could live with.\u201d In consequence of this conversation, the Rapes abandoned their plans to build on their own land.\nThe 1959 will was signed by Mr. Jim in \u201cTom Ervin\u2019s store at Bear Poplar.\u201d Mitchell Cress and Walter Ervin, neighbors and friends, were witnesses.\nCress testified that, when Mr. Jim asked him to witness his will, he told him \u201che was making the will to protect Basil and Mildred for staging and taking care of him and his wife.\u201d He further testified- tq statements made by Mr. Jim. in his own yard on an occasion when he (Cress), Woodrow and-Basil were present. He said that-Mr. Jim. then stated he was \u201cleaving.the farm to Basil and Mildred with the other provision for Woodrow to receive compensation for what he might contribute for their upkeep.\u201d\nErvin testified that, on an occasion after the 1959 will was signed, Mr. Jim told him he had made the will \u201cto take care of the Rape family for the work that they were doing on their house and they were supposed to take care of them the rest of their lives and he wanted to protect them with this will . . . that he gave the will to Basil after he signed it.\u201d\nBasil testified that, after he had executed the 1959 will, Mr. Jim called Woodrow, Mildred and Basil together and showed it to them; that each read it and expressed satisfaction; and that Woodrow added, \u201cMe and my wife can\u2019t live here, with my mother and daddy. ... [I] f you [Basil] and Mildred would live here with mother and daddy as long as they live, it\u2019s perfectly satisfactory with me.\u201d Thereupon Mr. Jim handed the 1959 will to Basil. It was put in Basil\u2019s safety deposit box and remained there until Mr. Jim\u2019s death.\nRobert Kennerly, a nephew of Miss Pearl, testified, to. statements made by Mr. Jim in 1959 when Mr. Jim and Miss Pearl were visiting Kennerly\u2019s parents. According to Kennerly,' when the subject of Mr. Jim\u2019s will and future living arrangements for himself and Miss Pearl were under discussion, Mr. Jim said \u201ctha/t he wasn\u2019t living by himself and he couldn\u2019t live with Woodrow and Sudie, he had tried that, and he couldn\u2019t live in Mooresville because that was too far. away from home and he just couldn\u2019t live in town and he just couldn\u2019t live with Katherine, and he said Gray was in California and he couldn\u2019t live with him, and he wasn\u2019t living by himself, and he said that Basil and Mildred had got a house planned and were going to move and build on their farm, and he said he told them if they moved they could just build another room because he wasn\u2019t living- by himself with Aunt Pearl, and Aunt Pearl was present at that time, and he told that on a couple of occasions up at our house.\u201d\nPlaintiffs\u2019 evidence tends to show the following:\nShortly after the 1959 will was executed Basil engaged Klutz to completely \u201coverhaul\u201d the old house in which Mr. Jim and Miss Pearl and the five members of the Rape family were then living. According to Klutz, when he started work \u201cMr. Jim walked up and he stated that he wanted the house fixed-just like Basil and Mildred wanted it; that it was their house; that he had willed it to them.\u201d\nThe renovation project included the following: A new roof was put on the house. The upstairs area was completed and made into three rooms, a bedroom for Larry and Donald, a bedroom for Caroline, and a storage or junk room. New flooring was put in throughout the house. The flooring in the downstairs bedrooms and large hall was Cyprus wood. Elsewhere the flooring was pressed wood overlaid with tile. All rooms were sheet-rocked and celotexed. Cabinets were built in the kitchen. The old doors were replaced by 21 wood doors and 3 storm doors. Twenty-six storm windows were installed. Structural changes included the enlargement of the \u201cden\u201d by using a portion of the hall. For the first time, closets were built. Prior to the renovation, in Miss Pearl\u2019s room a stick nailed across a corner of the room with a curtain hanging from it was the only place for her clothes. A closet for the use of Mr. Jim and Miss Pearl was built in the back hall. The porches on each of the three sides of the house were ceiled. The carport was roofed and ceiled. A half bathroom was added to the back porch. Necessary repairs were made throughout the house. The total cost, $6,000.00 or more, was paid by Basil.\nIn 1961 Mr. Jim, then about 76, had a heart attack. Thereafter, he didn\u2019t participate actively in the farming operations. However, his health remained good until shortly before his death in 1970. He drove a car, frequently visited his relatives, friends and neighbors, and was visited by them. He was interested and active in community and church gatherings and affairs.\nAfter Mr. Jim\u2019s heart attack on 7 July 1961, Woodrow and Basil executed a formal partnership agreement \u201cfor the purpose of engaging in the general farming business, including but not limited to the operation of a dairy, a beef herd, and raising various commodities for market and farm use.\u201d In general, this agreement called for equal contributions to the capital of the partnership, equal rights to the assets and profits thereof, and equal authority in respect of control and purchases. The \u201cFourth\u201d and \u201cNinth\u201d paragraphs thereof provided that either partner could withdraw from the partnership at any time by offering to sell his share to the other at a specified price. In such case, the other partner was obligated to buy or sell at that price.\nEach partner made withdrawals from the partnership account for personal as well as business obligations. An accounting was made at the end of each calendar year. The partnership agreement remained in effect until terminated as of 1 August 1969 under the circumstances described below.\nFrom 1943 until her death in 1966 Miss Pearl was a semi-invalid. She weighed about 200 pounds and spent most of her time in bed. If she was opposed \u201cin any way\u201d she had \u201cone of her tantrums.\u201d It seemed to Basil that her sickness \u201cwas more of a mental condition than it was a physical condition.\u201d\nMildred died 3 February 1965. During the period of nearly six years after the execution of the 1959 will, Mildred had \u201cparticipated in the operation of the house . . . [and] was the sole person that looked after the household duties, the cooking and the care of Miss Pearl. . . . [S] he was able to be around and do most things until her death except for a short period of time that she was in the hospital on a couple of occasions. She cooked for Miss Pearl and Mr. Jim and she did the washing and ironing for them. As the years passed, the children became very active in the duties on the farm and the daughter helped in the home. After Mildred died, Caroline and Basil ran the house.\u201d\nMrs. Nonnie Norman was employed as a servant in the Rape-Lyerly home, working two days a week. She was first employed when Mildred was alive and able to do the cooking and care for Miss Pearl. During this period Mrs. Norman did the \u201cheavy housework,\u201d such as washing, ironing, and cleaning. After Mildred\u2019s death, Mrs. Norman cleaned the room occupied by Miss Pearl and Mr. Jim and later by Mr. Jim alone. She did some of the cooking on the days she was there, in addition to the washing, ironing and cleaning she had been doing when Mildred was alive.\nTestimony as to what occurred shortly after Mildred\u2019s death includes the following:\nMrs. George Gardner, whose husband was related to Miss Pearl, testified: \u201cHe [Mr. Jim] came to our house not long after Mildred had died. ... I said, \u2018What\u2019s Basil and the children going to do now?\u2019 He said, \u2018They will have to stay here \u2014 live with us and take care of mama and me. We have papers drawn up to that effect.\u2019 \u201d\nRobert Kennerly testified he was present when Mrs. Gardner asked Mr. Jim what Basil and the children were going to do. According to Kennerly, Mr. Jim said: \u201cOh, he can\u2019t leave. We have got an agreement. He\u2019s got to stay with us . . . they can\u2019t leave \u2014 they can\u2019t move, they have got to look after us.\u201d\nW. Grady Lyerly and Mrs. Fannie Lyerly Secrest, brother and sister of Mr. Jim, testified to frequent visits with Mr. Jim at their homes and at the Lyerly-Rape home, during the period between the execution of the 1959 will and Mr. Jim\u2019s death. Each testified Mr. Jim had often stated that he had given the property to the Rape family because of. their agreement to take care of his wife and himself as long as they lived; Mrs. Secrest testified: \u201cHe [Mr. Jim] would say, \u2018Fannie, my parents gave me the homeplace to take care of them and I in turn have given it to Mildred and Basil to take care of me and Pearl.\u2019 \u201d These witnesses testified that Mr. Jim continuously praised the manner in which the Rape family had taken care of him and Miss Pearl after Mildred\u2019s death and of him after Miss Pearl\u2019s death. Mr. Jim\u2019s neighbors and friends testified to like effect.\nAfter Mildred\u2019s death, according to Mrs. Secrest, Mr. Jim said: \u201c \u2018We loved Mildred and we miss Mildred and we were heartbroken when Mildred died but so far as me and mama are concerned, we really never had any difference in the way we live. Basil and Caroline have seen to it that we have had the same care that we had when Mildred was here.\u2019 He said, \u2018We could really tell no difference.\u2019 He says, \u2018Now, I don\u2019t want you to get me wrong, that it didn\u2019t break our hearts to give our daughter up but we have been treated with the same kind of care since she went away as we were while she was here.\u2019 That\u2019s his words.\u201d\nDuring the subsistence of the partnership, obligations of Woodrow\u2019s family and of the Rape-Lyerly household, including grocery bills, the wages of domestic servants, etc., were paid from the partnership funds. Too, the taxes on all lands involved in the partnership operations, including Mr. Jim\u2019s farm, were paid from the partnership. Partnership funds also provided Mr. Jim with an automobile for his personal use. After'termination of the partnership, all expenses of the Rape-Lyerly household, including grocery bills, improvements on the farm, etc., were paid by Basil. A grain bin, which cost $470.00 or $480.00 and was installed on the Lyerly farm, was completed after the termination of the partnership and was paid for by Basil.\nThe following sequence of events is noted.\nBy letter dated 16 July 1969, attorneys for Woodrow notified Basil of Woodrow\u2019s decision to withdraw from their partnership agreement of 7 July 1961. They advised Basil of Woodrow\u2019s offer to sell his interest in the partnership for $40,000.00 and demanded that Basil notify them of his decision to buy or sell by 12 o\u2019clock noon on Saturday, 26 July 1969. Basil was directed not to contact Woodrow \u201cor any member of his family.\u201d\nBasil elected to buy Woodrow\u2019s interest in the partnership and pay him the sum of $40,000.00. The contract of sale, dated 9 August 1969, became effective as of 1 August 1969. It provided for the payment of $10,000.00 cash; for the immediate transfer to Woodrow of $15,000.00 \u201cfrom the retains held by the Rowan Dairy (Long Meadow)\u201d; and for the execution of a note for $15,000.00 payable on or before 1 September 1969.\nThe Last Will and Testament of Mr. Jim under which defendants claim was executed under date of 4 September 1969; and, on the same date and occasion, Mr. Jim executed and delivered a general power of attorney to his daughter, Katherine L. Mack. Both documents were drafted by Mrs. Frances F. Rufty, an attorney of Salisbury. In the negotiations for Woodrow\u2019s withdrawal from the partnership he was represented by a Statesville law firm.\nAfter the 1969 will and power of attorney were signed, Mr. Jim delivered them to Mrs. Mack. They were placed in her husband\u2019s safe. The will was kept there until Mr. Jim\u2019s death. Three or four days before Mr. Jim\u2019s death, Mrs. Mack, exercising the power of attorney, \u201ccleaned out\u201d Mr. Jim\u2019s bank account. Upon Mr. Jim\u2019s death, the 1969 will was probated. Mrs. Mack qualified as executrix and administered Mr. Jim\u2019s personal estate, including the funds withdrawn from his bank account shortly before his death.\nAfter the execution of the 1969 will, Mr. Jim continued to live as theretofore, a member of the Rape-Lyerly household, until his death on 23 November 1970. Neither Basil nor plaintiff had any knowledge or information concerning the 1969 will. During this period Basil built a trench silo on the Lyerly farm at a cost to him of around $1,100.00. Mr. Jim was present when the silo was laid off.\nThere was no evidence that Miss Pearl or Mr. Jim ever complained to Basil or any member of the Rape family in respect of the care they received over the years. All the evidence is to the effect that they accepted until death the care the Rape family continued to provide.\nDefendant A. Gray Lyerly did not testify. Apparently he resided in California. Defendant Woodrow W. Lyerly (Woodrow) did not testify. Nor did any member of his family testify.\nDefendants offered three witnesses: (1) Mrs. Rufty, (2) Newberry Hall, a neighbor, and (3) defendant Katherine L. Mack. Mrs. Rufty testified as to her contacts and conversations with Mr. Jim when she drafted the 1969 will. Mr. Hall testified briefly to visiting Mr. Jim and Miss Pearl. According to Hall, \u201c [Mr. Jim] never talked to me about his business. I never heard him talking about his business to anyone.\u201d His testimony lacked pertinent probative value.\nMrs. Mack testified that Mr. Jim made statements to her to the effect that he wanted to change his will because there was no one there at the homeplace to care for him and he didn\u2019t think the will was fair the way it was. She testified that she \u201cnever told Basil or any of the Rape family about the [1969] will because [her] father told [her], to tell no one.\u201d She further testified: \u201cHe [Mr. Jim] said that I would have a terrible time administering the estate because Basil was the most unreasonable man that he had ever tried to deal with in his life and that Basil had everybody in the community fooled and that Basil thought he had fooled him but that he had not fooled him, but those were his exact words.\u201d\nThe parties stipulated that described tracts of land in Steele Township, Rowan County, constituted the real property owned by Mr. Jim. They further stipulated that plaintiffs tendered to defendants \u201call monies provided for\u201d in the 1959 will and that defendants refused plaintiffs\u2019 demand that they convey to plaintiffs the real property Mr. Jim had attempted to devise to them in the 1969 will.\nThe issues submitted, and the jury\u2019s answer thereto, were as follows:\n\u201c1. Did James Richard Lyerly enter into a contract to leave his real property by will to Mildred Lyerly Rape in return for care of himself and his wife during their lifetime and upon the condition' that Woodrow W. Lyerly be paid the sum of $6,000.00; Gray Lyerly the sum of $1,000.00 and Katherine Lyerly Mack the sum of $1,000.00 ?\n\u201cAnswer: Yes.\n\u201c2. Did Mildred Lyerly Rape perform, during her lifetime her obligations as contemplated by the contract?\n\u201cAnswer: Yes.\n\u201c3. Following the death of Mildred Lyerly Rape and until the death of James Richard Lyerly and his wife, was care for James Richard Lyerly and his wife furnished by or on behalf of the plaintiffs as contemplated by the agreement, and did James Richard Lyerly accept such services in fulfillment of the said agreement?\n\u201cAnswer: Yes.\n\u201c4. Was this action instituted by the plaintiffs in good faith?\n\u201cAnswer: Yes.\u201d\nThe court entered judgment which, after recitals, inclusive of the issues, answers thereto, and stipulations, provided:\n\u201cIt Is Now Therefore Ordered, Adjudged and Decreed as follows:\n\u201c1. A trust in favor of the plaintiffs Donald G. Rape, Caroline C. Rape, and Larry A. Rape, the children of Mildred Lyerly Rape, is hereby imposed upon all right title and interest of the defendants in the following described real property, devised to the defendants by the last will and testament of James Richard Lyerly:\nDescriptions Omitted\n\u201c2. It appearing to the Court that the plaintiffs have deposited in the office of the Clerk of Superior Court for Rowan County, the sum of $6,000.00 for the benefit of Woodrow W. Lyerly, the sum of $1,000.00 for the benefit of Katherine L. Mack and the sum of $1,000.00 for the benefit of A. Gray Lyerly, it is hereby Ordered Adjudged and Decreed that all right, title and interest of the defendants in the real property hereinabove described is divested from the defendants and is hereby vested in the plaintiffs, Donald G. Rape, Caroline C. Rape, and Larry A. Rape.\n\u201c8. The Clerk of Superior Court is directed to disburse the foregoing sums to the defendants upon the occurrence of any of the following events: the abandonment of any appeal which may be taken by the defendants from this judgment, or a final determination of this action in favor of the plaintiffs, following any appeal, confirming the plaintiffs\u2019 title to the property herein described. In the event that it should finally be determined that the plaintiffs are not entitled to the interests of the defendants in the property heretofore described, the Clerk of Superior Court shall refund the sums so deposited to the plaintiffs.\n\u201c4. The defendants shall recover nothing upon their Counterclaim.\n\u201c5. The defendants shall pay the costs of this action, to be taxed by the Clerk.\u201d\nDefendants excepted and appealed, assigning as error (1) the denial of their motion to dismiss for failure to join Basil as a party; (2) the denial of their motions for summary judgment and for a directed verdict; and (3) errors committed in the conduct of the trial.\nUpon defendants\u2019 appeal, a majority of. the hearing panel of the Court of Appeals found \u201cNo Error.\u201d Judge Hedrick noted his dissent.\nKluttz and Hamlin by Lewis P. Hamlin, Jr., Richard R. Reamer, and Malcolm B. Blankenship, Jr., for plaintiff appellees.\nCollier, Harris, Homesley, Jones & Gaines by Walter H. Jones, Jr., for defendant appellants." }, "file_name": "0601-01", "first_page_order": 629, "last_page_order": 653 }