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LARGE v. LARGE

November 26, 1957

FRANKLIN ALVEN LARGE, APPELLANT,
v.
ALMA KATE LARGE, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF THOMAS ALFORD LARGE, DECEASED, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Legge, Justice.

November 26, 1957.

Thomas A. Large died childless and intestate on May 8, 1955, leaving as his heirs and distributees his widow Alma, three sisters, and a brother. The complaint in this action alleged that when the plaintiff was about two years old his parents had "deeded" him to the said Thomas A. Large and his wife Alma in consideration of their promise that they would by proper devise and bequest make him equal with their own children in the distribution of their estate. It prayed that the deed be declared an equitable contract to make the plaintiff an heir of Thomas A. Large; for specific performance of said contract, whereby he would receive one-half of the real and personal estate of said decedent; and for an order restraining the administratrix from distributing or disposing of any of the assets of the estate until final determination of the issues. The "deed", which was executed by the grantors in the presence of two witnesses, and probated, reads as follows:

"Whereas, Clyde Franklin Kelly, Sr., and Frances Brazell Kelly, his wife, feeling that it will be to the best interests of their son Clyde Franklin Kelly, Jr., of the age of two years on December 16, 1935, to commit the care, maintenance, tuition, and support of their son Clyde Franklin Kelly, Jr., to T.A. Large and Alma Mae Large, his wife, sister and brother-in-law of the said Clyde Franklin Kelly, Sr.; the said child having been in poor health and the said Clyde Franklin Kelly, Sr., and Frances Brazell Kelly, his wife, being unable to supply him with the necessary care, medicines, and medical attention, and

"Whereas, the said T.A. Large and Alma Mae Large, his wife, do accept the care, custody, and maintenance, tuition, and support of the said Clyde Franklin Kelly, Jr., for and during such time as he shall remain under the age of twenty-one (21) years, and further agree that the said Clyde Franklin Kelly, Jr., shall by proper devise and bequest be made equal with their own children in the distribution of their estates, and that they will further hold all property which might now or hereafter belong to the said Clyde Franklin Kelly, Jr., and the increase thereof for his support until he shall have married or arrived at the age of twenty-one (21) years.

"Now, Therefore, Know All Men by These Presents, That we, Clyde Franklin Kelly, Sr., and Frances Brazell Kelly, his wife, for and in consideration of the promises above stated, have agreed to and do hereby commit the care, custody, maintenance, tuition, and education of their son, Clyde Franklin, Jr., of the age of two years on December 16, 1935, to T.A. Large and Alma Mae Large, his wife, for and during such time as he shall remain under the age of twenty-one (21) years, together with all the rights, privileges, and benefits that would be exercised by us as his parents over and in respect to the said Clyde Franklin Kelly, Jr.

"To Have and to Hold the said Clyde Franklin Kelly, Jr., unto the said T.A. Large and Alma Mae Large, his wife, against us and any and all persons claiming or to claim any interest, right, or privilege through us in and to the said Clyde Franklin, Jr.

"Witness our hands and seals this 8th day of May, A.D., 1936, and in the One Hundred and Sixtieth year of the Sovereignty and Independence of the United States of America."

The defendants pleaded, inter alia, that if the deed created a contract to devise, the plaintiff was not entitled to specific performance because of his unworthy, undutiful and unfilial conduct.

The Master, to whom the cause had been referred generally, took testimony and filed his report recommending that the relief sought by the plaintiff be denied on several grounds, among them that the plaintiff had been guilty of such unfilial conduct that he was not entitled to specific performance of the alleged contract.

Plaintiff having excepted to the Master's report, the cause came on to be heard before the Honorable G. Badger Baker, Judge of the Twelfth Judicial Circuit, who by his decree of April 20, 1957, confirmed the finding before mentioned and dismissed the complaint. We quote from the decree:

"The Plaintiff married and after several months returned with his wife, to the Large farm, stayed there four or five months, left again, went to Columbia, S.C. and has been living there to this date. Again friction was the cause of the departure, principally, drinking."

"It is well recognized that the remedy of specific performance depends upon the equities of the situation as disclosed by a just consideration of all circumstances of a particular case, that is, the judicial discretion is to be exercised in accordance with settled rules and principles of equity.

"Although not expressly stated, there is implied a consideration in the deed of the society, companionship and filial obedience of the Plaintiff. Mr. and Mrs. Large did not have children of their own and in accepting the care, custody, and maintenance of the infant Plaintiff they were no doubt prompted by the love which they had for the baby and looked forward with ...


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