Jenkins v. Stetson

91 Mass. 128

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1864
• Status: Published

Opinion

Bigelow, C. J.

The only question raised at the trial of this case was, whether the plaintiff, on the evidence adduced by both parties, had sustained the allegation of a breach of the bond declared on, and was. entitled to a judgment for the penalty under Gen. Sts. c. 133, § 9. The extent of the breach and the amount of damage to which the plaintiff might be entitled to recover therefor, were by agreement of parties reserved for future consideration. Upon a careful revision of the rulings under which the case was submitted to the jury, we are unable to find any valid ground of objection to any of them.

1. The bond contains no agreement which is against public policy. That it is competent for a party to stipulate for the disposition of his property at the time of his decease is too well settled to admit of doubt or question. The validity of such an agreement has been often recognized by this court. Fitch v. Fitch, 8 Pick. 480. Trull v. Eastman, 3 Met. 121. Canada v. Canada, 6 Cush. 15. Nor is it a material circumstance that the agreement contains a clause by which the defendant’s testator was bound to give to the plaintiff, not only the property which she had in possession at the time of the execution of the bond, but also that which she might receive as heir or legatee of her mother. There might have been force in this objection, if it had appeared that the bond was given and the agreement made without the knowledge or assent of the mother. It might then have been deemed to have operated as a deceit on her, on the principle stated in Boynton v. Hubbard, 7 Mass. 112, 122. But it appears by the facts disclosed at the trial that the bond in suit was given in pursuance of a family arrangement or settlement to which the mother and daughter were both parties. An agreement by an heir apparent that he will convey an estate which may coitie to him by descent is valid, if entered into fairly, on an adequate consideration, with the knowledge and assent of the ancestor, and if the bargain is not unconscionable or obtained by oppression or by taking unjust advantage of the necessities of the heir. No element is shown to exist in this case which in any degree tends to invalidate the contract. There! was no deceit or fraud, actual or constructive, practised on the mother, nor would her property, under the stipulations in the bond, be disposed of at her decease in a manner of which she was ignorant, or contrary to her intention. The agreement, so far as it affected the rights and interest of the daughter, was in no respect unconscionable or unjust. It was a reasonable contract, made on an adequate consideration, with the free and voluntary assent of all parties interested.

2. There was no evidence of any neglect or failure by the plaintiff to fulfil the agreement into which he entered for the support of the obligor. Conceding that a breach of his contract would be a bar to the maintenance of this action — a point by no means clear — the facts disclosed at the trial would not have warranted the jury in finding such breach. No request was proved to have been made of the plaintiff to furnish support to the obligor after she ceased to reside in the same house with him, nor did it appear that after she withdrew therefrom up to the time of her decease, she intended or desired that the plaintiff should any longer be required to fulfil the stipulation for her support, contained in the bond which she held. For aught that appears, she voluntarily waived and abandoned all claims against the plaintiff, and elected to seek her support elsewhere and by other means. Indeed, the agreement into which she entered with Stetson, as shown by the bonds offered in evidence by the defendant, bearing date September 5th 1856, tends very strongly to show that it was her intention, without the knowledge or assent of the plaintiff, to avoid the obligation of the contract into which she had entered with him, and, by ceasing to receive support at his hands, to get rid of the performance of her part of this mutual obligation. Under such circumstances, a tender of performance by the plaintiff was unnecessary, and no inference of a failure or omission by the plaintiff to fulfil the agreement would have been warranted. So that if these bonds had been admitted in evidence, they would not have aided the defence, but wornd have tended to support the plaintiff’s case.

3. The objection that the suit was prematurely brought is untenable. There was clearly a breach of the bond declared on, by the act of the obligor in leaving a last will and testament duly executed, which was proved and allowed in the probate court, and by which the stipulation in the bond, to leave to the plaintiff all the personal estate of which she might die possessed, was broken. This was clearly a forfeiture of the bond, and gave the plaintiff an immediate right of action for the amount of the penalty.

'4. Equally untenable is the objection, that the bond is to be held void for uncertainty. The property which the plaintiff would have been entitled to receive, if the condition of the bond had been complied with, is susceptible of proof. But if it were not, the right to maintain the action would not be thereby affected. The plaintiff would be still entitled to judgment fertile amount of the penalty. Any uncertainty as to the amount of property would affect only the damages for which execution is to issue.

5. It was suggested that the plaintiff’s remedy was in equity only. But we can see no ground for this objection. An action at law is an appropriate remedy for a breach of a bond.

Exceptions overruled.