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Healy v. Healy

55 A.D. 315 Court N.Y. App. Div. English

Delivered by Adams, P. J.:

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Neva C. Healy, Respondent, v. Dorus Healy, as Administrator, etc., of Joshua Healy, Deceased, and Others, Appellants.

Headnote

Parol agreement to maintain a child, to give it the name of the foster parent and a share of his estate — the mother of the child, with whom the agreement was made, is not ‘ ’ interested in the event "of an action brought to enforce it — she may,- after the foster fathers death, testify as to its terms.
Where a mother surrenders her infant child to a man upon the latter’s parol agreement to care for and maintain the child as his own, to give her his name, to teach her to know him and his wife as her parents and to give her the same share in his estate as though she had heen his own child, and after the contract has heen fully performed by both parties for a period of twenty years, the
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foster father dies without making provision for the child, the latter may maintain an action against his personal representative and those interested in his estate for the specific performance of the contract.
•The mother of the adopted child, is not “ interested in the event ” 'of the action within the meaning of section 829 of the Code of Civil Procedure, and may testify to interviews between herself and the foster father in the course of which, the parol agreement was made.
Appeal by the defendants, Dorns Healy, as administrator, etc., of Joshua Healy, deceased, and others, from a judgment of the Supreme Court in fav.or of the plaintiff, entered in the office of the clerk' of the county of Steuben on the 6th day of June, 1900, upon, the decision of the court, rendered after a trial at the Steuben Special Term..
This action, which was commenced on the 28th day of ¡November,, 1898, was brought to enforce the specific performance of a parol contract which, it is claimed, was entered into in the year 1877, between Jennie D. Chichester, the mother of the plaintiff, and one Joshua Healy, now deceased.
From the uncontradicted evidence contained in the record before us, it appears that Mrs. Chichester, whose husband was the brother of Healy’s first wife, gave birth to the plaintiff on the 14th day of. June, 1874. ■
In about two years thereafter Henry Chichester, the.father of the plaintiff, died, leaving his widow and child in destitute circumstances. Thereupon Joshua Healy, who was a well-to-do - farmer, with. a wife, but no children, proposed to Mrs. Chichester that she should give the plaintiff, Lleva, to him. This proposition at: first met with an absolute and firm refusal; but in about six months thereafter, it having in the meantime become apparent that Mrs. Chichester was unable to support herself and child, she wrote Healy asking if he still wished Lleva, and upon being informed that he did, she sought a personal interview with him which resulted in his taking the child into his family and virtually adopting her, the mother then and there surrendering all claim and control over her.
The new relation thus established continued without interruption until the year 1886 when Mrs. Healy died, without issue. During-all this, time the plaintiff lived with the Healys, rendering such service as would naturally be expected from a daughter in the circumstances in which she was placed, and receiving in return the
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same care, maintenance and affection she would have been entitled to had the Healys been her own parents.
On the 29th day of March, 1894, Joshua Healy was married to the defendant Julia 0. Healy, and on the 23d day of July, 1897, he died intestate, leaving his widow him surviving, and also the defendant Anna C. Healy, who was born July 28,1895, and was the only issue of his second marriage. He also left personal estate which was about sufficient to pay his debts, and real estate estimated to be. worth between $9,000 and $10,000. -
After the death of the first wife of Joshua Healy the plaintiff continued to live with her adopted father down to the time of his death, except for a few months when she was learning the millinery trade in Eochester, and was at all times treated by him as though she was his own child. She was taught to call him father and the first Mrs. Healy mother, and supposed that they actually bore that relation towards her until she was informed to the contrary after she had reached the age of fourteen years. She also received similar recognition and treatment from Mr. Iiealy’s second wife.
It was claimed, and the evidence in the case tends to prove, that the plaintiff was given by her mother to Mr. Healy upon the express condition and understanding that she was to become to him and be forever thereafter as his own child, and that at his death she was to receive the share of a child in his estate.
Upon the.facts thus briefly detailed the trial court decided in favor of the plaintiff, and directed that she recover one-half of the real estate of which Joshua Healy died seized, subject to the dower right of the defendant Julia O. Healy therein, and also one-third part of his personal property which shall remain after the payment of his debts and the expenses of administration.
From the judgment entered upon such decision this appeal is brought.
Fletcher G. Peck, for the appellants.
Thomas Paines, for the respondent.

We think the facts of this case not only warrant the conclusion reached by the learned trial justice, but that they are such as to fully justify a court of equity, within the rigid rules applicable to cases

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of this character, in decreeing the relief sought through the medium of this action.

The evidence upon the part of the plaintiff satisfactorily establishes the fact that at the- time Mrs. Chichester surrendered the plaintiff into the control and custody of Joshua Healy it was upon the express understanding and promise that her child should be sup-. ported, educated and maintained during the lifetime of her adopted father, and that at his death she should receive the-same share of his estate to which she would have been entitled had she been his own-offspring. The mother, testified unequivocally that such was the agreement, and the other evidence in the case tends to strengthen rather than discredit her testimony. Certain it -is that. the terms of the contract, as testified to by Mrs. Chichester, were faithfully and literally fulfilled by Mr. Healy up to the time of his decease, save only that he omitted to perform that part of it which required that he should make suitable provision for his adopted daughter in the event of his death.

The contract was a parol one, it is true, but it was fully performed upon the part of the plaintiff when she was transferred into the family of Mr. Healy and assumed towards him and his wife the relation of daughter. It' was likewise fully performed by Mr. Healy, save in the one particular just adverted to, and under these circumstances it becomes obligatory upon a court of equity to intervene in order to prevent a wrong so gross as to be tantamount to a fraud upon the plaintiff, for it cannot be doubted, if Mrs. Chichester (now Mrs. Seager) is to be believed, and there is nothing in the case which directly impeaches her evidence, that the one controlling motive which .induced her to part with her child was the assurance by Mr. Healy that he would not only furnish that child a comfortable-home during his lifetime, but that ample provision should also be 3nade for her future comfort and support in the event of his death. The case, so far as this particular feature of it is concerned, appears to fall directly within the section of the ¡Revised Statutes which provides that “ nothing in this title contained (Statute of Frauds) shall be construed to abridge the powers of courts .of equity to compel the specific performance of agree3nents, in cases of part perfonnance of such agreements” (2 R. S. [Banks & Bros. 9th ed.]1885, § 10), and likewise within certahi principles of equity juris

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prudence which are too well settled to admit of controversy at this late day. (Kenyon v. Youlen, S3 Hun, 591; Roberge v. Winne, 144 N. Y. 709 .)

It is doubtless the rule that before enforcement of such a contract will be decreed by a court of equity it must be made to appear affirmatively and by the clearest evidence that it was founded upon an adequate consideration ; that it is certain and definite in all its parts, and that it is in nowise unjust to innocent third parties, nor contrary to public policy. (Gall v. Gall, 64 Hun, 600 ; affd., 138 N. Y. 675 .)

Each of these essential elements, however, seems to be present in the case before us.

When Mrs. Chichester, compelled by the inexorable requirements of her impoverished condition to part with her child, surrendered all control over that child, she furnished the largest possible measure of consideration for the promise which that surrender induced, a consideration the adequacy of which assuredly cannot- be questioned, when it is fully understood what that surrender involved.

Mor do we think that the contract can be successfully assailed for uncertainty or indefiniteness. The agreement on the part of Mr. Healy, as found by the trial court, was to care for and maintain the plaintiff as his own childto give her his name; to teach her to know him and his wife as her parents, and finally, to provide for her future maintenance by giving to her the share of an own child in his estate.

This language is surely susceptible of but one construction, and that is that the plaintiff was to share in her adopted father’s estate in the same manner and to the same extent as though she had been his child; and in the absence of any testamentary provision to that effect, we see no difficulty in decreeing specific performance upon the basis adopted by the trial court.

Such an enforcement of the contract-violates no principle of public policy, nor does it work injustice to any one. The widow’s dower interest, which is all she is entitled to in any aspect of the case, is in nowise diminished; and while the infant defendant receives only half as much as she otherwise would, she nevertheless receives precisely what she would be entitled to under the law of descents if the plaintiff were her sister in blood instead of by adoption.

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This case, although somewhat peculiar in its circumstances, is not without precedent, and there is ample authority to support the view of it taken by the court below and the one which, as already indicated, commends itself to our approval. (Godine v. Kidd, 64 Hun, 585 ; Gates v. Gates, 34 App. Div. 608 ; Shakespeare v. Markham, 10 Hun, 311 . See, also, Gall v. Gall, supra) But it is insisted that the error was committed by the learned trial court in permifting the plaintiff’s mother to testify, over the defendants’ objection, to interviews between her and Mr. Healy in the course of which it is claimed that the contract sought to be enforced was entered into, the contention being that under section 829 of the Code of Civil Procedure this witness was incompetent to testify to a conversation which took place between herself' and the defendants’ intestate.

We find ourselves unable to assent to this proposition. Mrs. Chichester was in no disqualifying sense “interested in the event” of the action (Eisenlord v. Clum, 126 N. Y. 552 ; Connelly v. O'Connor; 117 id. 91), and while she was undoubtedly the medium through whom the contract was entered into on behalf of her infant-child, yet it cannot be said that she is the person “ through or under whom” the plaintiff derives,her interest or title “by assignment or otherwise ” as that term is used in the section above mentioned.

The subject-matter of the action is the estate of Joshua Healy, deceased, and whatever interest the plaintiff has in that estate she derived from Joshua Healy and not from her mother. (Godine v. Kidd, supra.)

Our conclusion, upon the whole case, is that it was properly disposed of by the trial court and that the judgment, appealed from should consequently be affirmed.

All concurred.

Judgment affirmed, with costs.

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