Norwood v. Tyson

138 Ala. 269

Opinion

McCLELLAN, C. J.

The issue, to speak generally, sought to be presented by the bill is the liability vel non of the complainant Norwood to the estate of Mrs. M. M. Tyson, deceased, for the sum of thirteen thou sand and two hundred dollars and interest, money borrowed by him from her and for which he executed his note to her some months prior to her death. This issue had been presented and was pending in the probate court of Montgomery county at the time this bill was filed in a proceeding there instituted by Silas Tyson, trustee,- etc., in his capacity as legatee under Mrs. Tyson’s will, against Norwood as an executor of said will. The bill seeks to enjoin that proceeding and to have the issue determined in the chancery court. The bill avers that this at one time existing indebtedness from Nor-wood to Mrs. Tyson was settled and discharged between him and her in her lifetime, that-such settlement and discharge is evidenced by an entry made by Mrs. Tyson on a book in which were scheduled her dioses in action set opposite the statement of this debt therein, also by a subsequent endorsement on said note, signed by Mrs. Tyson, substantially in these words: “For and in consideration of services rendered to me by my son-in-law, Joseph Norwood, I hereby give, transfer and assign to him this note, and debt embraced therein,” and by the surrender by her of the note to him. It is further alleged in the bill by way of anticipation that said Silas Tyson claims that this transaction between the complainant and Mrs. Tyson was induced by undue influence exerted by him upon her and that lie will attack the alleged discharge and settlement on that ground; and the complainant goes on to aver facts and circumstances connected with the transaction which are intended and supposed to rebut this contention of Tyson and to demonstrate that the settlement, and discharge of said debt was not the result of such undue influence. It is clear, we think, that no equity, no right to come into the chancery court to enjoin the proceeding in the probate court and have the issue in - question determined in the chancery court, is predicable upon the averments to which we have adverted. To the contrary, on the facts so far disclosed, the complainant has an entirely adequate remedy at law by way of defense against accountability in the probate court proceeding. The settlement and discharge alleged is, to say the least, prima, facie valid and effective as well in the probate court as in any other court.' If its efficacy should be attacked, or attempted to be attacked in the probate court by Tyson on the ground of the undue influence referred to, the complainant would have the same standing and opportunity there as in the chancery court to meet and defend against and rebut that attack, if the probate court has jurisdiction to entertain and determine the issue of undue influence vcl non; and if that court has not that jurisdiction, the hurt would be to Tyson and not to Nor-•wood. Norwood would go free of accountability on the bald fact of the debt having been in terms discharged and acquitted by Mrs. Tyson. The invocation of chancery jurisdiction would be necessary to the effectuation of Tyson’s position, but not to Norwood’s. And, whether the probate court goes into the issue of undue influence or not, and whether with or without a determination of that issue, if its judgment is that Norwood was discharged of the liability in question by the testatrix, that judgment would be final and establish his non-liability for all purposes and in all courts. On the other hand, of course, the judgment of such court holding him liable would be likewise final and conclusive. So that on this part of the case presented by the bill there would be no possibility of a multiplicity of suits and no equity can be evolved out Of that theory.

But in another aspect, the bill proceeds on the assumption that the question of the validity and efficacy of said discharge and acquittance will be determined against the complainant upon the inquiry of undue influence, and upon that theory the effort is made by its averments to set up another defense against liability of Norwood to account on the settlement of his executor-ship for the amount of said note as a debt due by him to the estate, or, rather, these averments are intended to show that the whole estate has been settled and that, of consequence, Norwood cannot be put to any accounting whatever. As we read the bill in this connection its averments are to the effect that the four legatees under the will of Mrs. Tyson, each by the terms thereof entitled to one-fourth of her estate, which consisted altogether of money and dioses in action, agreed among themselves upon a division of the assets of the estate to and among themselves in equal parts, agreed further that this division should be a full and final distribution and settlement of the estate, that they each should execute a receipt for the assets received by them severally,, and that upon the lapse of twelve months from the grant of letters testamentary these receipts should be filed in' the probate court and upon them without more final settlement of the executorships should be had and adjudged; and the executors should be discharged. Such we find to be the agreement alleged. It is further averred that the assets of the estate were accordingly divided among and distributed to the several legatees, that a receipt was executed by them severally, which, however, does not on its face show that the distribution was of the whole of the estate, but purports only to be based “on a division of |93,080.01 of the assets of the estate of Mrs. M. M. Tyson, deceased,” and the schedules attached to the receipt in which are set down the items of assets distributed do not embrace the Norwood note nor another note for about forty-five hundred dollars which one of the legatees had executed to Mrs. Tyson and which she had discharged and surrendered at the time of the discharge and surrender of Norwood’s note — that this receipt was left with one of the executors, who was also one of the legatees, to be filed in the probate court for the purpose above stated after the lapse of twelve months from the . grant of letters, that said time has elapsed but said receipt has not been so filed. Upon these averments, the prayer is for a specific performance of the alleged agreement of settlement and distribution and for a discharge of the executors. We think the bill upon these allegations and for this purpose has equity. The specific performance of contracts is a jurisdiction peculiar to chancery courts and exclusive in them. The probate court cannot grant this relief. It might possibly in this case upon proof of the agreement alleged decline to coerce Norwood to further settlement, and dismiss the proceeding instituted by Tyson to that end. But this Avould not be the full measure of relief to which he is entitled on the facts he has averred in this connection. To dismiss that proceeding Avould not. be to discharge NorAvood' from all accountability and liability as exe cutor, and such discharge is the relief to which he is entitled. Contracts to confess judgments, to have decrees entered, and the like, are as capable of specific enforcement as any other contracts. Nor is it any objection to the relief that the' chancery court cannot enforce this contract according to its precise terms, order respondents to file the receipt in the probate court and decree that that court enter up a judgment discharging the executor. The essential feature of this agreement, its pith and gist, is the entry and enrollment of a judgment or decree, by some court having jurisdiction, settling the administration and discharging the executors; and the chancery court having assumed jurisdiction to specifically enforce the contract, may effectuate that jurisdiction by any decree which will conserve the end stipulated for. Moreover, the chancery court’s jurisdiction to settle estates and determine the liability of executors where questions aróse beyond the competency of the probate court, as here, involves the same power to decree a discharge of the executors as the probate court would have had, if all the parties had come into that court and proceeded in accordance with the agreement. It is quiie (rue, as we have seen, that the receipt which was e.wTUI'ed by the legatees on the division and distribution that was made, does not affirmatively support the averments of the bill that the distribution was intended to be and was of the whole estate. Indeed, it may be admitted that the language of the receipt is evidential against the averment of full settlement and distribution. But, of course, the receipt is evidential only. It is not conclusive, it does not purport to be the contract made, if any contract was made. The contract alleged may be proved, the evidential tendency of the receipt to the contrary notwithstanding. It is averred in one way or another in the bill— whether sufficiently against a demurrer is not now under consideration — that the legatees when making the settlement and distribution and agreeing to the discharge of the executors, had full knowledge of all the facts and circumstances bearing upon the matter in hand. They were each of contracting age. On the allegations of the. bill,- it cannot he said that the agree ment was unfair or oppressive. True it involved a pretermission of the claim now asserted by' Tyson as to Norwood’s liability to account for the amount of the note. But this was a doubtful claim. Its determination involved important questions of law and fact; as for examples, whether the discharge and surrender of the note was a gift or compensatory; whether, if a gift, it was inter ñivos or mortis causa; if the former, were the relations between Mrs. Tyson and Norwood such as would raise a presumption of undue influence, and if so, was this presumption overturned by the intervention oh independent and disinterested advice; if the gift was mortis causa, what rule as to undue influence should obtain, that applicable to gifts inter vivos or that applicable to wills, etc., etc. From the viewpoint of the legatees at the time of the distribution, the assertion of the claim -would lead to litigation, which might be imolonged, and delay any distribution even after the lapse of twelve months from the grant of letters, and which might finally result in the defeat of the claim and costs to the estate. Then, too, the considerations set'forth in the bill as moving Mrs. Tyson to discharge and surrender the claim, and the fact that her expressed desyre was to that end, may have exerted a legitimate influence toward the agreement alleged. If it be said that Mrs. Tyson’s discharge and acquittance was induced by undue influence — and that is the theory upon whch we are now proceeding — that undue influence is a species of coercion and fraud, and that the chancery court should not decree the specific performance of a contract which would involve the effectuation of such product of coercion or fraud, it is to be replied that the undue influence in question was not actual but constructive merely, that its existence rested, not upon any wrongful act of Norwood, but is a presumption of law from the mere existence of relations between him and Mrs. Tyson which were not only natural and proper but commendable. All these things go to the general fairness of the alleged agreement. There are other facts averred which, while also going to the general question of fairness, constitute in a stricter sense the consideration for the contract to- discharge from all accountability. The foregoing of commissions involved in the alleged settlement was a valuable consideration of positive benefit to that one of the legatees who was not also an executor, and it was of positive detriment to that one of the executors who was not a legatee. The force of these propositions is not impaired by the fact that the executor -who was not a legatee and the legatee who was not an executor were man and wife — Mr. and Mrs. Norwood. Husband and wife have long since ceased to be one under our laws in respect to their rights of property. And the fact that the settlement as and when made involved the distribution and delivery of the assets of the estate to the legatees immediately after the grant of letters when in the absence of the agreement no distribution need have been made until twelve months had elapsed was a valuable consideration for the agreement of positive benefit to each of the legatees. Other considerations might be adverted to as supporting the agreement alleged, but enough has been said to show the grounds of our conclusion that the agreement as alleged is valid and is of such fairness as appeals for enforcement to equity jurisdiction.

Upon some of the propositions stated,above we cite authorities: The probate court has not jurisdiction in the proceeding now pending before it to effectuate the alleged agreement. — Matter of Wagner, 119 N. Y. 28; Matter of Randall, 152 N. Y. 508.

Contracts involving rendition of -judgments and decrees and the like may be specifically enforced. — Waterman Spec. Per. § 107; Burton v. London (Vt.), 29 Atl. Rep. 374; Deen v. Milne, 113 N. Y. 303; Richardson v. Eyton, 2 De Gex, M. & G. 79; Pryer v. Gribble, 10 Ch. App. L. R. 534.

Where the object of the contract can be accomplished in some other way, it is no defense to a bill for specific performance that the contract cannot be enforced in the precise manner stipulated therein. — Pom. Sp. Per. § 191 and note; Waterman Sp. Per, §§ 11, 129.

As we have seen, in so far as the bill relies upon the discharge and surrender of the note by Mrs. Tyson to Norwood, it is without equity for that defense is cog nizable by tlie court of probate; but the fact that this claim is made by the bill does not stand in the way of the chancery court’s jurisdiction to determine the other claim presented by it for specific performance, which is purely of equitable cognizance. — Baptist Church v. Bullock, 133 Ala. 548, and cases there cited.

Without intending to intimate any opinion or inclination of mind on the question of the jurisdiction of the probate court to determine the issue of undue influence vel non mooted in respect of Mrs. Tyson’s discharge of the note of Norwood, we cite the following cases which may have a bearing upon it: Dixon v. Buell, 21 Ill. 203; In re Steele, 65 Ill. 326; Millard v. Harris, 119 Ill. 185; Wadsworth v. Connell, 104 Ill. 369, 378; Potter’s Appeal, 56 Conn. 1.

We do not find that the averments of the bill make a case of estoppel in pais upon Silas Tyson to now contest the validity of the alleged discharge and acquittance by Mrs. Tyson of Norwood’s note. .It does not appear that the complainant has acted or omitted to act to his prejudice on account of the conduct of said Tyson, leaving out of view, of course, the alleged agreement of said Tyson and others considered above.

We are of opinion that the city court erred in dissolving the injunction for want of equity in the bill, and in granting the motion to dismiss the bill for want of equity. Its decree to these ends will be reversed, and a decree will be here rendered overruling the motions to dissolve the injunction and to dismiss the bill, and restoring the injunction.

The decree below also sustained a demurrer to the bill. That., in view of the dismissal of the bill .for want of equity, seems to have been supererogatory. We will not discuss the demurrer here. From what has been said above in review of the motion to dismiss for want of equity, it would appear to follow that one or more of the assignments of demurrer would be good against a part of the hill, but as the demurrer is in terms laid against the bill as a whole it should have been overruled. The decree in this behalf will also be reversed, and a decree will be here entered overruling the demurrer.

Reversed and rendered.