Everdell v. Hill

58 A.D. 151, 68 N.Y.S. 719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinions

Rumsey, J.:

The plaintiffs and some of the defendants are nieces of Mary L. Everdell, who died in 1897, leaving a will of real and personal property, of which the defendants Jacob F. Miller and Elizabeth Hill are executors and trustees.

Mary L. Everdell had several brothers and sisters. Some of them were married and had children. Mary Everdell and her two sisters, Matilda and Catherine, were maiden ladies, each possessed of property, the precise amount of which does not appear. It is claimed by the plaintiffs that in the year 1879 the three sisters, Catherine, Matilda and Mary, made an agreement between themselves, by virtue of which the one dying first was to leave all her property to the other two; the one second to die was to leavé all her property to-the survivor; and the surviving sister was to devise and bequeath by will all the property of which she died the owner to their nieces. It is claimed that this agreement was carried out by Matilda, the first sister to die, and by Catherine, the second sister, but that Mary never made any such will as by this contract she agreed, but that, oh the contrary, she by her will left a large portion of her property to persons other than her nieces. This action is brought to enforce the specific performance of this alleged agreement, and to obtain a judgment that the legatees and executors under the will of Mary L. Everdell should hold the property received by them as trustees for the niece's who shall be adjudged to be the owners of all that property, and that they shall be required to transfer said property to the nieces in order to carry out the agreement.

The learned justice below found that the agreement was made substantially as alleged; that it had been performed by the two sisters who had died first, but that it had not been performed by Mary L. Everdell. He decided that Mary was bound in equity to perform that agreement in favor of the nieces, and decreed the specific performance of it, and granted substantially the relief asked for in the complaint. From the judgment entered on his decision this appeal is taken.

There is grave doubt in our minds whether the proof was sufficient to establish the making of the contract as alleged. The rule as to the amount of evidence necessary to establish an agreement of this kind is that it will not be enforced where the evidence leaves it unceitain what the precise agreement is. (Gall v. Gall, 29 Abb. N. C. 19, and notes; Healy v. Healy, 55 App. Div. 315, 319.) The evidence in this case leaves it somewhat uncertain, and if the matter were presented to us as an original proposition, it is doubtful whether we would be able to find that the contract was made. But we are not disposed to found our decision upon that ground, because in our judgment there are some legal questions in the case which determine its disposition, even if we should adopt the conclusion of the learned justice at the Special Term, that the evidence did establish the making of the contract relied upon by the plaintiffs.

The claim was that the three sisters had made a contract by which the first one to die should devise and bequeath her property to the survivors; the second one to do the same to the last survivor, and the last to give all her property to her nieces. It is shown that Matilda, the first sister to die, made her will in April, 1881, and by it gave all her property to her two sisters. In July, 1881, the surviving sisters, Catherine and Mary, made their wills, by which each one gave to the other all her property, real and personal. The will of each sister gave a. legacy to their brother Francis Everdell during his life; but it is not necessary, in my judgment, to lay any stress upon that legacy, because it was provided in each will that the remainder in that legacy should belong to the sisters. Neither Catherine nor Mary made any provision in her will for the nieces, and so far as they were concerned the alleged agreement was never carried out, nór was there any intention of carrying it out by either of them, so far as appears. The wills of Catherine and Mary were never changed; and when Catherine died, Mary became the owner of all her property by virtue of her will made in 1881,. just as' Catherine would, have taken an absolute title to Mary’s property in the same way if Mary had died first. There is no proof in the case of anything, so far as we can see, which leads to a fair inference that either of the two sisters, Catherine or Mary, while both lived, intended to make any change in the wills as they existed in July, 1881, after the death of Matilda. In 1890, long after the death of Catherine, Mary made a new will by which she gave legacies of a very considerable amount to different persons, and to one of her sisters and certain of her nieces, and made others of her nieces residuary legatees. This will, which was proved before the surrogate, was not in any sense a compliance with the alleged agreement.

The fact that these various wills were made is not disputed, nor is it alleged on the part of the plaintiffs that Mary Everdell ever made such a will as it is claimed was provided for by the agreement. There is no pretense that in any of her wills she ever left one penny to any of her nieces except what was left by the last will which is attacked. This fact is important as showing the difference between this case and all the other cases in the books where it has been attempted to enforce an agreement to make mutual wills. In the leading case of Lord Walpole v. Lord Orford (3 Ves. Jr. 402), and in every case which has followed it, as far as I can discover, down to the case of Edson v. Parsons (85 Hun, 263 ; 155 N. Y. 555), the agreement to make the mutual wills had been carried out and each party to the agreement had made such a will as it' was claimed the agreement called for. The grievance in each case was that after the death of one party to the agreement the survivor had attempted to revoke the will which he had made in accordance with the contract, and the relief asked was that the attempted revocation should be held to be ineffectual and that the first will made, in pursuance of the agreement, should be established as the will of the testator.

It is quite apparent that in all such cases the Statute of Frauds could not be successfully invoked, because, although the original contract had been by parol, yet it had been executed by a writing made with the express intention of carrying it into effect; and'the complaint in each case was that there had been an attempt by a subsequent act to destroy - the effect of the writing which had been made in execution of the original agreement. But that is not this case. .

Nor is this case within the rule of those cases where the plaintiff has performed services upon the faith of an agreement to devise property to him after the death of the one for whom the services were rendered. In such a case the well-settled rule of equity applies that the person who has fully performed his part of the contract has the right to enforce the specific performance of the contract on the part of the other party to it, although, if no part of it had been performed, it would have been void under the Statute of Frauds.

But this case does not come within the principle established in either of these classes of cases. It is not an attempt to establish a will which has been made, but it is an attempt simply to procure the courts to make for a party a will which she never executed, disposing of her property in a way which she never intended. The persons who make this attempt never had any contractual relations with the testatrix, nor with any of the parties to the alleged contract ; they never did any act by way of part performance; they never acquired a legal right to any of the property affected by the alleged contract, nor have they lost anything because of an attempt to perform the contract by either party to it or by an attempt by any one else to perform it.

That this contract is within the Statute of Frauds will not probably be denied. (Gould v. Mansfield, 103-Mass. 408 ; Gooding v. Brown, 35 Hun, 148 ; Ellis v. Cary, 74 Wis. 176.) Being within the Statute of Frauds it is void in equity as well as in law. (Wheeler v. Reynolds, 66 N. Y. 227.) But although a contract may be void as within the Statute of Frauds, yet the courts of equity in their discretion will sometimes require the specific performance of such a contract where the party seeking that performance has so far executed it on his part that it would operate as a fraud upon him if he were not able to secure the benefit of it; but it is conceded that this rule of equity trenches upon the statute and operates practically as a repeal of it, and, therefore, the courts are loath to extend this doctrine of part performance to a case which has not already by well-settled rules been brought within the principles thus far established. (Story Eq. Juris. § 766; Pom. Spec. Perf. § 98.)

One of the rules which the court has established in respect of this matter is that the acts which are claimed to have been done as part performance of the contract must unequivocally refer to and result from the agreement, and must clearly show that there was some contract between the parties to which they were exclusively referable, and it must appear that those acts would not have been done except for the- contract. (Pom. Spec. Perf. § 108, and cases cited in note 1; Story Eq. Juris. § 762.)

Proof of that fact is entirely lacking in this case. The facts even do not establish by fair inference that any of the wills were made with reference to the alleged contract. Indeed, when Catherine made her will, no such contract was in her mind,-for in it, and in the will of her sister Mary, made at the same time, no provision was made by either for any of the nieces.

It is also a rule that the party seeking specific, performance must have done by way of part performance some act which is not only exclusively referable to the contract, but is of such a nature that if the contract should not be performed that person would be practically defrauded by reason of the act which he had done in part performance of the contract and in reliance upon it. (Canda v. Totten, 157 N. Y. 281 ; Wheeler v. Reynolds, supra ; Story Eq. Juris. § 763 ; Pom. Spec. Perf. § 104.) There is no pretense in this case that the plaintiffs ever did any act in part performance of this-contract, or in fact that they ever knew anything about it. So far as they are concerned, this was simply an attempt on the part of other persons to make a' gift to them which never was executed; and they are in the same position as any person' who attempts in equity to enforce the specific performance of an agreement to make a gift, which will never be done. (Young v. Young, 80 N. Y. 422.)

But it is said that Matilda and Catherine Everdell having partly performed this contract, the plaintiffs have by virtue of that part performance some standing in equity to obtain this relief. But the plaintiffs are not assignees of either Catherine or Matilda; they never received anything from them, and ■ neither Catherine nor Matilda ever occupied towards them the position of trustees. Whatever right they can have exists, if at all, by reason of this void contract; and if they should be permitted to enforce it we would have the remarkable situation of a person claiming to be at liberty to enforce a void contract, because by . the contract he claims a right which, until it is enforced, he does. not have. It may be that the executors of Matilda and Catherine Everdell, or those who are now their legal representatives, might enforce this contract; but how it can be enforced by other persons who never paid anything, and never acquired any right, and have no legal interest in any of the estates under this contract, I cannot see.

At the time this contract was made, in 1879, and when it was executed by Matilda so far as it was executed, there were living other brothers and sisters, who are the parents of the .plaintiffs, and of the nieces who have been made defendants. Hone of the brothers or sisters at that time had died leaving children ; so that if these three sisters had died at that time, the only persons who would have taken their estates would have been the living brothers and sisters. So far as the nieces were concerned, neither of these three ladies had a legal obligation towards them, either to support them or to pay them any money or to give them any part of their estates. Whatever they might see fit to give them was simply a matter of favor, and was not done and cannot be said to have been done in performance of any legal obligation which either of these ladies ever owed to any niece. The nieces were not parties to this contract. Indeed, it does not appear that they had any knowledge of its existence for many years after it is alleged to have been made. So we have here an effort by persons who are not parties to a contract to enforce it.

Under certain circumstances that undoubtedly can be done. (Lawrence v. Fox, 20 N. Y. 268.) But while this case has established a principle which is undoubtedly well settled in the jurisprudence of this State, yet that principle has never been so far extended as to permit a person to enforce such a contract unless some obligation existed towards him on the part of the one who procured the contract to be made for his benefit. Ho case can be found where a person has been permitted to bring an action under the principle established in Lawrence v. Fox (supra), to enforce a mere gift, unaccompanied by any obligation of the promisee to the person for whose benefit the thing was to be done. That a mere stranger cannot claim the benefit of a contract between other parties, and that to entitle a third person to such a benefit there must be either a new consideration or some prior right or claim against one of the contracting parties by which the plaintiff has. a legal interest, in the-performance of the agreement, is settled in the case of Vrooman v. Turner (69 N. Y. 280). The new consideration referred to in-that case is a consideration passing from the beneficiary to the person sought to be made liable upon the contract. We cannot discover that the rule laid down in that case has ever been changed or interfered within the slightest degree. In the case of Buchanan v. Tilden (158 N. Y. 109) the same principle was conceded to exist,. and the point- upon which the Court of Appeals differed from the court below was that the obligation of a husband to his wife was-sufficient, in view of the peculiar facts in that case, to establish the necessary obligation to entitle him to bring an action upon the con tract sought to be enforced. The principle itself was not impugned, nor was there any attempt to overrule any of the cases in which it is established. The case of Durnherr v. Rau (135 N. Y. 219) is-also a case where the same principle was recognized and applied.. Within the principle of this case we are utterly Unable to see how the nieces, the plaintiffs' here, have any standing in court to enforce-this contract. They were not parties to it; no consideration passed between them and the parties making it, whose sole purpose seems-to have been to make a gift to them ; so that if they are permitted to bring this action they wifi occupy the position of one who is permitted to enforce an executory agreement which the parties making-it did not attempt to carry out. We are quite, clear that no such effort can be sustained. (Borland v. Welch, 162 N. Y. 104.)

It is very clear that if this was a contract to pay money to -these-persons, within the cases cited above, the plaintiffs could not maintain this action; and we are not aware of any rule of equity which authorizes a person to maintain an action of that kind for equitable-relief where he would have no standing in a court of law to enforce-what he said was a legal liability. The. only case in the books, so- ■ far as I can discover, in which even a suggestion was made that such an action may be maintained, is the case of Edson v. Parsons(155 N. Y. 555), in which the court below found that the alleged agreement to make mutual wills, had never been made, and dismissed the complaint of the beneficiary upon that ground. That finding was-affirmed by the General Term (85 Hun, 263), and upon appeal to theOotirt of Appeals it was held that the facts were disputed, and that,. therefore, the decision of the court below must be sustained. But it was said that a residuary legatee in mutual wills, made under a contract between the testators, had a standing in equity to enforce the contract against the legatees and legal representatives of the testator who survived the other party to the contract and then made another will; but what was said in that respect was not necessary to a decision of the case, because when it appeared that no contract had been made that was the end of it. Then, too, in that case it appeared that the wills had actually been made, and the complaint was that the survivor, after making a will in pursuance of what was said to be a contract, had attempted, after the death of the other party to it, to revoke that will. If ,the contract had been established, it would have been an executed and not an executory contract ; and it is quite possible that in such a case a beneficiary under the will might have a standing in court to enforce the contract. But that is not this case where the plaintiffs never were beneficiaries, and where no will has been made under the contract, and where what is sought to be accomplished is to make a will which has never been made. The principle here applied is, as it seems to us, absolutely fatal to the contention of the plaintiffs.

It is insisted by the defendants that the decree of the surrogate upon the contest of the will of Mary Everdell before him is a conclusive adjudication that the plaintiffs cannot maintain this action. But the surrogate has no equity jurisdiction ; and, even if this claim has been made in his court, the surrogate could not have adjudicated upon it. He could only say whether the will presented to him was the last will of Mary Everdell; and, if it was, he was bound to admit it to probate, leaving to this court, which alone has full equity jurisdiction, the right to make such a judgment as the plaintiffs ' should be entitled to.

But, for the reasons stated above, we conclude that the plaintiffs had no standing in court to maintain this action, and the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Ingraham, J., concurred.