Ide v. Brown

Section 1022 of the Code of Civil Procedure, prior to its amendment by chap. 85, Laws of 1903, provided that “the- decision of the court or the report of a referee, upon the trial of the whole issues of fact, may state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, or the court or referee, may file a decision stating concisely the grounds upon which the issues have been decided, and direct the judgment to be entered thereupon.” Here were two forms of decision provided for which were known by the profession respectively as the- long and short form. The two forms thus provided for differed in this respect: under the long form the material facts were specifically found and then the question of law arose as to the judgment that should be entered- thereon; while under the short form it was not necessary to find the facts , the trial court being required to state the grounds or reasons upon which judgment was directed, and upon review we were required to assume that the necessary facts to support the judgment were found, treating the decision similar to that of a verdict of a jury. In the case under consid-' eration all of the material facts have been specifically found and separately numbered. The decision conforms, in every particular, to the provisions of the Code formerly known as the long form, and in view of the fact that the judgment entered upon the decision has been unanimously affirmed in the Appellate Division, the facts, as found, are established, and the question with reference thereto for the determination of this court, is whether such facts authorize the judgment that has been entered.

It appears from the facts found that on or about the 20th

My attention has been called to no case in which the question here presented has been the subject of adjudication in this court. There are numerous cases in which pérsons have entered into agreements to live, with or take care of an aged person during the remainder of his or her life for a consideration promised to be made by bequest or devise, but the contracts in those cases have been made by adults, and not by minors who were incapable of entering into a valid contract. There is another class of cases in which infant children have been taken under agreements with their parents to be supported and maintained as the children of the foster parent during their minority, with a covenant to provide for them by will, but in these cases the custody and control of the infants terminated upon their arriving at their majority and the contract was made by parents who were entitled to the society and services of their children.

In the case under consideration the plaintiff was sixteen years of age and had always lived in the family of the decedent. The contract was oral and made by her guardian. The agreement bound her to continue to live with George W. Lee during the remainder of his life, whatever that period should be. She was to assume the character of a daughter, thus undertaking a daughter’s duty to serve and care for an aged and decrepit parent. Had he continued to live

There is no statute in this state authorizing a guardian to enter into a contract of this character. The only statute upon the, subject appears in our Domestic Relations Law (Chap. 272 of the Laws of 1896, § 72) under which a minor may bind himself or herself as a servant in any profession, trade or employment for a term “ not longer than the minority-of such minor; ” but contracts of this character are, by the statute, required to be in writing and signed by the minor as well as by his guardian and they are, as we have seen, expressly limited to a period within the minority of the minor. There is but one exception provided for in the statute and that is in case of a minor coming from a foreign country, who may, for the purpose of paying his passage, make an indenture for a term of one year, although such term extend beyond the time when he will become of age.

It appears to me that the contract being for the life of Lee, was one that the guardian had no power to make for his ward or in her behalf, and that it was, therefore, void.

The judgment should be reversed and a new trial granted, with costs to abide event.

I concur with Judge IIaight in his opinion in this case, upon the ground that the statutory guardian does not possess the power to bind the person of his ward by contract extending beyond the period of minority. I have been unable to find any precise authority covering the case; but I think the proposition true upon principle. We might assume that a parent, as such and as a guardian by nature, might surrender the person of a child, under such a contract, and still find it difficult to infer a like authority in the general

This is a controversy concerning the ownership of the estate of one George W. Lee, who died on the 6th day of May, 1901, leaving a will which was admitted to probate and adjudged to be a valid will of real and personal estate. The will appears in the record in full and covers nearly ten printed pages. It bears date and was executed on the 7th day of August, 1900. The will made full and complete disposition of all his real estate, besides personal property which, it is found, amounted to three- hundred thousand dollars. The purpose of this action' was to defeat the testamentary disposition thus made and.to procure a decree transferring all the real estate and twenty thousand dollars of the personal property to the plaintiff, and the judgment appealed from sustains and sanctions all the purposes of the action.

It is found that the plaintiff is an infant, born on the 24th of August, 1884; that her father and mother died prior to the year 1899 and that a guardian of her person and estate was duly appointed by the surrogate of the county, who qualified and entered upon the discharge of the duties of his trust; that at the time of the testator’s death he was seized of certain real estate, which is described in two parcels, constituting the house and lot in which the testator lived prior to and at the time of his death. It has not been decided, and no one claims that this will was in any respect invalid, but it is claimed and found that it was revoked or modified materially by certain events which took place before his death, and which will be set forth in full hereafter.

The class of cases presented by this record has now become quite common and this will be a proper place to set forth the views of this court upon the questions involved as stated in a case so -recent that it may be said metaphorically that the ink is not yet dry on the opinion. Every member of the court concurred in what was then said. I did not, myself, take part

It may be that some case, or rather some dicta, may be found to warrant the judgment as rendered, although I have not been able to find any. However that may be, I am inclined to follow the views of Chancellor Kent who, when commenting upon the rule of stare decisis, said that many thousand cases could then be pointed out in the English and

“ That during said year 1900, and on or about the 20th day of August of said year, said Addison B. Colvin, acting as guardian of the person and estate of said plaintiff, and having the custody and control of her person, entered into an agreement with said George W. Lee, wherein and whereby it was stipulated and mutually agreed that the said plaintiff should continue to live in the family of said George W. Lee until the death of said Lee, and that said Colvin should during said time permit the said George W. Lee to have the custody and control of said plaintiff as a member of his family and in the position of a daughter, and that the said George W. Lee would treat said plaintiff in all respects as his daughter during his lifetime, and at his death would bequeath to her the sum of §20,000, and in addition thereto would at his

death devise and transfer to her the house in which said George W. Lee then resided on the southwesterly corner of Warren and Church streets in the village of Glens Falls, Warren county, Mew York, together with the lot on which said house was situated, which said lot consisted of the parcels of real estate hereinbefore specifically described.

“ That thereupon and thereafter pursuant to said agreement the said plaintiff continuously lived in the family of said George W. Lee, and in all respects conducted herself as his daughter, and to the time of his death remained in his family and conducted herself towards him in all respects as a member of his family, and during said time was subjected to the restraint, custody, control and management of the said George W. Lee, who acted towards this said plaintiff in the relation of a parent, and said plaintiff fully performed all the duties and conditions of said contract and agreement on her part to be performed and said Addison B. Colvin, her general guardian as aforesaid, performed all the duties and conditions of said contract on his part to be performed.

“ That in violation of the said contract and agreement hereinbefore set forth, made between said Addison B. Colvin as plaintiff’s guardian for and on behalf of said plaintiff and said George W. Lee the said George W. Lee failed at his death to bequeath to this plaintiff the sum of $20,000 and failed to devise to her the house and lot above described and in all respects failed on his part to perform the agreement hereinbefore set forth, except that said George W. Lee in and by said last will and testament bequeathed to said executors in trust the sum of $5,000 and the accumulated income thereof to be paid to said plaintiff in case and in case only that she should arrive at twenty-one years of age, and aside from said contingent bequest the said George W. Lee made no provision whatever for said plaintiff, either by his last will and testament or otherwise.”

We are not concerned in the least with the circumstance that the decision below was unanimous. The sole question is whether these facts warrant the judgment given. The agree

The plaintiff is an orphan girl, not related in any way to the testator, and in her early childhood her mother, or some one interested in her, secured a home for her with the deceased. Assuming that the relations between her and the testator were those that ordinarily exist between parent and child, these relations were not changed by what is claimed to have taken place a few months before the death of Mr. Lee. The plaintiff assumed no new duties or obligations in consequence of the conversation between her guardian and the deceased. If it be said that her guardian stipulated that she should live with the deceased during his life, no one can believe that had he lived for ten years more and the plaintiff concluded to marry or to go elsewhere before his death that she was not at perfect liberty to do so. We are not in the least concerned with the relations of the parties, except for the few months preceding the testator’s death, since there is no claim that the deceased owed the plaintiff anything when the verbal transaction took place.

I have no doubt that the plaintiff is a very worthy young

I do not think that there is any controlling authority in this state that, when properly understood, holds that such a promise can be made the basis of a decree of specific performance. On the contrary, if is elementary law that it cannot. “A contract, to be specifically enforced by the court must be mutual; that is to say, such that it might at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity to contract, or the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other; though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.” And “ a party not bound by the agreement itself has no right to call upon a court of equity to enforce specific performance against the other contracting party, by expressing his willingess, in his plea to perform his part of the agreement. Ilis right to the aid of the court does not depend upon his subsequent offer to perform the contract upon his part, but upon its original obligatory character.” (Fry on Specific Performance [3d ed.], § 440.) Judge Gray said in Palmer v. Gould ( 144 N. Y. 671 ) : “'It is a rule, well settled by the cases, that the specific performance of a contract for the sale of lands will not be decreed if the remedy be not mutual, or where one party only is bound by the agreement.” These principles are too familiar to call for any extended discussion. They were applied by this court in the case of Mahaney v. Carr (supra), where the finding was the same as

I understand that we all agree that the question is open in this court whether the findings of fact sustain the judgment. At all events it is entirely safe to say that every member of the court has so stated in various cases, which I will not now take the trouble to cite, since I assume there is no question about it. Mo one claims in this case that the findings of fact are not to be taken as conclusive. The facts, indeed, were found upon evidence, some portions of which are far from satisfactory. But the appellants in this court must take the facts as they are found, and to say that a written decision of the trial court, in which every material fact stated in the complaint is expressly found and separately numbered, does not enable this court to know what the facts of the case are in order to review the law, any more than it can know the facts the jury passed upon in a general verdict, would seem to- be quite absurd.

But it is said that the agreement found in this case is equitable, and, of course, before we can tell whether it is equitable or otherwise, we must look at all the facts and circumstances of the case. There are some things in the record that seem to be considered important, and one of them is the fact that the plaintiff was born in the house which it is said was the -gift of the testator to her before his death. I do not for a moment imagine that the place where this young lady was born is of the slightest consequence.' Her case would be just exactly as strong as it now is if she had been born in some other house. It must be that, these things are emphasized in order to show that the alleged contract under which the plaintiff claims is a wiser and more equitable disposition of the property of the deceased than that which he made by his will, but that would seem to be a

This court is required to review judgments entered upon decisions. So far we have referred to the decision alone. We must now see what the judgment accomplishes in this case. The executors and trustees under the testator’s will are ordered and directed to deliver to the plaintiff’s attorneys a deed of the real estate described in the complaint and in the judgment and so it has been held that this girl is entitled, under the facts found, to a specific performance of a verbal promise by the testator to devise to her by will a valuable piece of real estate. There is no claim or pretense that she ever had possession of this real estate or that any other element or fact exists which is required in order to warrant a court of equity to decree the specific performance of a contract to convey land. When it is said that the contract in this case was equitable I suppose it is intended to express the idea that it contains all the elements which courts of equity require in order to decree a conveyance. The testator, before this alleged contract was made, had executed his will by which he devised this land to others, and so the judgment decides that the testator’s will by this verbal arrangement was pro tanto revoked or modified, but that is not all. The judgment commands the testator’s executors and trustees to hand over to this girl out of the testator’s personal property twenty thousand dollars and so it has been decided that a verbal promise by an old man to bequeath to a young girl by will twenty thousand dollars has enabled the plaintiff to have that promise specifically performed. I confess that I am not aware of any principle of law upon which such judgments can be rendered, and indeed no one claims that there is any principle at the basis of this decision. All we are told is that some case has so decided, but when we come to examine these cases it will be seen that the facts are very different from the case at bar, but whatever the facts may be the three recent decisions to which I have referred, have, I think, settled adversely the

The deceased died leaving a son, one brother and two sisters, besides some nephews and nieces. After the gift to the plaintiff, which was in trust until after she arrived at the age of twenty-one years, he disposed of his estate for the benefit of the son and brother and sister and their descendants, giving a small legacy to another person. I am not quite able to see why this son and the brother and sisters and their children did not have as strong a claim upon the testator’s bounty as the plaintiff, but this judgment gives to the plaintiff a large part of what the will gives, to the son and the brother and sisters and it is said that that is equitable. The only basis for all this is the verbal promise of the deceased to change his will, and having neglected to make the change during his lifetime a court of equity will make it for him after his death.

When the testator made the will disposing of his estate he supposed that the law of the land was that he had the right to' do what he would with his own, but in this, it seems, he was mistaken. He did not suppose that his will could be destroyed by calling a single witness to testify to a verbal interview with the testator wherein it is said he promised to make another and better will. It seems from this case that the witness was not able to state the words of the interview, but only what he calls the “ spirit and sentiment,” and that having been made

It has been found as a fact, and is apparently considered very material since the same thing is emphasized in the argument, that at the time of making the alleged contract up to the time of his death the testator “ was a paralytic in speech and limbs, it being difficult for him to speak or walk.” The prominence given to this fact in favor of the plaintiff illustrates .the strange confusion of thought that pervades this case at every point and in all its features. It seems to be supposed that the verbal promise of a helpless paralytic and physical wreck made a short time before his death, to change his will and make a new will, has peculiar claims on a court of equity for specific performance, where as I suppose the truth to be that no court of equity or any other court ever thought of enforcing such a promise. It might, and doubtless would, produce one of those familiar lawsuits if the promise was kept, in order to determine whether it was the old will or the new one that should prevail. I think it may be safely asserted that equity will never compel a paralytic, on the eve of death, to make a will. But the startling thing about the whole business is that it is earnestly contended in support of the judgment that this old man, paralytic and physical wreck as he was, having muttered a few incoherent words to the plaintiffs guardian that -are to be dignified with the title of a “ contract,” bound himself and his estate to change his written

The learned trial judge' did find that the verbal arrangement expressed in the findings is in harmony with public policy, or at least not contrary to it. I always supposed that a verbal agreement to change a written will already executed, disposing of the testator’s estate, or a verbal arrangement of any kind, such as the one in question, for the disposition of property in view of death, and to take effect only upon the happening of that event, was distinctly contrary to public policy, and so, I think, this court has held. (Matter of Ken nedy, 167 N. Y. 171 .) Every one not only admits, but asserts, that these so-called contracts are dangerous, and, if so, it is difficult for me to see why public policy favors them.

I am in favor of reversing the judgment.

Parker, Ch. J., Yann, J. (and Gray, J., in memorandum), concur with Haight, J.; Yann, J., concurs with O’Brien, J.; Martin, J., dissents; Cullen, J., not voting.

Judgment reversed, etc.