Coveney v. Conlin

20 App. D.C. 303, 1902 U.S. App. LEXIS 5453

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

It is unnecessary to review at length the evidence offered by the appellant in support of the claim of her cross-bill. That has been done by the learned justice who presided in the equity court, in an opinion made a part of the record,

Footnotes

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* and we entirely agree with him that it utterly fails to make out a single ground upon which a decree for the appellant could rest, whatever view might be taken of the legal propositions embraced in her several contentions.

(1) Instead of proving the alleged agreement between herself and her husband, respecting his receipt of the profits and income of their professional engagements and their investment on joint account and for the benefit of the survivor of them, appellant’s testimony tended to show a constant division of the same and their deposit in bank, or other separate keeping, as well as investment on separate account.

(2) The attempt of the appellant to show by her own testimony, that at the urgent demand of her husband, and to prevent the loss of the land in controversy, she advanced the amount of the cash payment therefor, or any part of the subsequent payments in discharge of the deferred payment of $10,000, was an entire failure. In several essential particulars, she was contradicted by indisputable evidence of facts and circumstances, and the only witness who undertook to corroborate her, on any material point, was likewise shown to be untrustworthy.

(3) Whilst there is no doubt that, under certain concurring conditions, a verbal agreement to make a conveyance of property by will may be enforced in equity, yet one of the essential conditions is that the agreement must be complete, definite in its terms, and proved with clearness and certainty. Whitney v. Hay, 15 App. D. C. 164, 186; S. C., 181 U. S. 77; Edson v. Parsons, 155 N. Y. 555, 567; Williams v. Shipley, 67 Md. 373; Sloniger v. Sloniger, 161 Ill. 270, 278.

The evidence offered by the appellant falls far short of the establishment of any agreement by William J. Florence, containing the requisite ingredients of a contract to make a will devising and bequeathing to the appellant all of the property which he then had or might die seized and possessed of, wherever situated.

The whole claim of appellant rests, therefore, .upon the single fact, that, on May 5, 187 6, she and her husband, each impelled by a desire at the time to make the other the beneficiary of her or his bounty, as survivorship might determine, executed mutual wills, similar -in form and attestation, and deposited them in a box under their joint control in the vaults of a safe depository, where they remained unaltered and unrevoked until the death of William J. Florence.

But the mere fact of the formal execution and deposit of mutual wills cannot be accepted as sufficient proof of the existence of an anterior agreement or contract of which they are alleged to be the execution.

This is the clearly established rule in the State of New York, where the parties resided and where the wills were made — though it is not on that account to be accepted as controlling the question of title in this jurisdiction. Edson v. Parsons, 85 Hun, 263, 265; S. C., 155 N. Y. 555, 565, 568.

Some of the conditions of that case appealed more strongly than those in the case at bar for the inference of an antecedent contract from the terms of the mutual wills of two maiden sisters; but it was denied. Of these mutual wills it was said by the court: “ They constituted, by their terms, no mutual contract; however reciprocal their provisions might appear. Whether they were reciprocally binding depended upon the existence of an agreement, or a clear understanding, to that effect, and that was, of necessity, left to inference from all the facts which the plaintiff could collate ” (p. 565). * * * “ The present case afforded ample support to the conclusions reached by the trial court. The wills were similarly made and, hence, showed concert of action and similarity of purpose; but not necessarily a binding agreement of such solemnity and far-reaching consequences, as the appellant claims. To argue upon the basis that they are mutual wills begs the question. That is a fact to be established by evidence, showing that such was the understanding and the deliberate agreement. The scheme was clear; but what shows, conclusively, that each sister under stood that the other was irrevocably bound ? Is such an inference the only one warranted by the situation and circumstances ? This cannot quite be likened to that class of cases, where a devise has been made upon the faith of a promise which equity will enforce when founded upon a sufficient consideration; or where a fiduciary relation exists, which procures the devise to be made upon representations, without which the devisee would not have taken.” (p. 570.)

We are not bound by the decision of the Court of Appeals of New York, but being satisfied with the soundness of the reasoning by which it is supported we adopt its rule in the disposition of this case.

The errors assigned by the appellant relate only to so much of the decree as dismisses her cross-bill. Finding no error therein the decree as rendered will be affirmed, with costs; and it is so ordered. Affirmed.

See mite, p. 308, et seq.— Reporter.