Whitridge v. Parkhurst

20 Md. 62, 1863 Md. LEXIS 28

• Court: Court of Appeals of Maryland
• Decided: May 22, 1863
• Status: Published

Opinions

Baktol, J.,

delivered the opinion of this Court;

After a most careful consideration of the proceedings in this case, and of the authorities cited in the argument, a majority of this Court are of opinion that the order of the Circuit Court continuing the injunction, ought to be affirmed.

In the argument of the cause in this Court, the solicitors for Urn appellants pressed with much earnestness and ability the second point in their brief, which alleges that there was a contract or agreement between Mrs. Edwards and Mrs. Frisby, whereby the latter agreed in consideration of the devises made to her in the will of Mrs. Edwards, to respect and give effect to the disposition made by the same will of her (Mrs. Frisby’s) property. If is alleged, that the will of Mrs. Edwards was made to carry out that agreement, and that relying on the assurances of Mrs. Frisby, the testatrix failed to make any provision in her will for John J. Frisby, which she would otherwise have done; and therefore it is contended, that this Court ought now to enforce that agreement in favour of John J. Frisby.

It is unnecessary for us to go into an examination of the cases in winch such contracts, when clearly established by competent proof, have been enforced in equity; or to consider the effect of a performance of such contracts on the one part, ju taking them out of the operation of the Statute of Frauds. In this case the alleged contract is not proved. The only evidence on which it rests is the testimony of Mr. Eicaud, who does not prove any such binding agreement as this Court can enforce. His testimony shows that the will of Mrs. Edwards was made with the knowledge and assent of Mrs. Frisby, who declared her purpose of carrying out its provisions. The will itself is silent as to any such agreement; nor does it appear, that any intended provision in favour of John J. Frisby was defeated, or omitted from the will in. consequence of any contract or agreement of Mrs. Frisby.

It would be carrying the doctrine contended for farther than is warranted by any adjudged case, that wo have seen, to say that the conversations testified to by Mr. Ricaud, constitute a binding contract to charge the estate of Mrs. Frisby with a trust in favour of John J. Frisby, which deprived her of the right of election. It would be setting a dangerous precedent, and in direct violation of the plain provisions of the Statute of Frauds to admit parol evidence to establish such an agreement, unless it ho of the clearest and most satisfactory kind, and also, unless “the acts of part performance relied upon to take the case without the operation of the Statute of Frauds, 5e clear and definite, and, refer exclusively to the alleged agreement.” 4 Md. Rep., 462.

A majority of this Court are of opinion, that in this case the alleged agreement has not been proved. It may be remarked, that in the answer of the appellants, no such agreement is alleged as binding upon Mrs. Erisby; but they treat the case as one in which Mrs. Erisby, after the death of her mother, Mrs. Edwards, had the right of election, either to take under her will.or under the will of James Edwards. On that ground the cause seems to have been presented to the consideration of the Court below. In the opinion of the Judge of the Circuit Court, he says: “It is admitted that this is a case for the application of the doctrine of election-."

A majority of this Court considered that the right of election existed in Mrs. Erisby, and therefore the decision of the present appeal must depend upon the principles governing that branch of the la^; and upon the proof in the record.

On this subject it is unnecessary for us to say more than that we concur in the views expressed in the opinion of the Judge of the Circuit Court, and upon the authorities cited by him, and for the reasons he assigns the order appealed from will be affirmed.