Shives v. Borgman

³² Delaplaine, J., delivered the opinion of the Court. This suit was 'brought in the Circuit Court for Washington County to specifically enforce an oral contract. Complainant, Mrs. Elizabeth P. Borgman, alleged that she entered into the contract with Charles S. Shives, deceased, who agreed to make a will leaving her his entire estate. Decedent died intestate on December 18, 1947, leaving personal property valued at $280 and three lots of ground in Fairview Addition to Hancock improved by a five-room house, a tenant house and a barn.

He was survived by one brother, James W. Shives, who has been appointed administrator of the estate, one sister, and a number of nephews and nieces. The decree, from which appeal was taken by the administrator and all other heirs at law, declares that decedent and complainant entered into a valid and enforceable contract by which decedent agreed to will his entire estate to complainant, orders the administrator to distribute the personal estate to her, and appoints a trustee to convey the real estate to her. There is no question of the legal right of an owner of property to enter into a contract to execute a will leaving the property to the other contracting party. Wilks v. Burns, 60 Md. 64, 70; Scott v. Marden, 153 Md. 1, 12 , 137 A. 518 .

It is also well established that a court of equity will specifically enforce an oral agreement to devise real estate, although the agreement is within the Statute of Frauds, where the promisee has fully performed his part of the agreement by rendering services whose value cannot be estimated in terms of money, and a monetary award will not place the parties in statu quo or adequately compensate the promisee. In such a case the court assumes jurisdiction to prevent an injury amounting to fraud and enforces the agreement by the imposition of a constructive trust. Fitzpatrick v. Michael, 177 Md. 248, 255 , 9 A. 2d 639 ; Mannix v. Baumgardner, 184 Md. 600 , 42 A. 2d 124 . ³³ The contention of defendants is that the evidence in this case was not sufficient to justify a decree of specific performance. We cannot agree with their contention.

Of course, complainant herself was prevented from testifying as to the alleged contract because her testimony as to any transaction with decedent was inadmissable under the evidence statute. Code 1939, art. 35, sec. 3; Giering v. Sauer, 120 Md. 295, 297 , 87 A. 774 ; Snyder v. Cearfoss, 187 Md. 635, 641 , 51 A. 2d 264 . However, she produced a number of witnesses who testified definitely as to the terms of the contract. Complainant’s husband, Eugene T. Borgman, a retired railroad man, gave a detailed account of the events leading up to the final agreement.

In 1931 decedent, who was unmarried and living alone, engaged complainant, then residing in Cumberland, to come to Hancock to work as his housekeeper. She brought along her 4-year-old son, Robert Lodston, and stayed at decedent’s home until her marriage in August, 1935, when she went to California. Her son, however, remained in Hancock until he entered the United States Navy. In 1936 complainant returned to Maryland and thereafter she visited decedent frequently.

On these visits decedent repeatedly offered to leave his estate to her if she would come back as his housekeeper. In July, 1936, she did return and she worked for decedent until March, 1938, when she went back to Cumberland. From 1938 to 1944, decedent did the household work himself as best he could. During that period complainant often came from Cumberland and helped to clean decedent’s house.

In the fall of 1944 decedent became ill. Some of his neighbors then came to his aid. One of these, Mrs. Bertha Clay, who lived in the tenant house, testified that she cooked, washed clothes and cleaned house for him, and that she was paid for her services. In 1945, when decedent was about 53 years old, one of his legs was amputated, and when he returned to his home he used a wheel chair and crutches.

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