24 N.J. Eq. 315 | New York Court of Chancery | 1873
The complainant, Gilbert B. Ackerman, brings this suit against the executors and the devisees in the will of his father, Peter H. Ackerman, deceased, to compel a conveyance to himself of a farm of about seventy-four acres, situate in Saddle river, in the county of Bergen. His father died on the 2d of June, 1869, at the age of seventy years, leaving a last will and testament which has been duly proved in the surrogate’s office of said county. The testator was possessed of a considerable estate, personal and real, though the precise value of it does not certainly appear in the cause. After a bequest of $10,000 and his household furniture to his wife, he directs all his real estate in Saddle river to be sold and the proceeds thereof, together with the residue of his personal property, after the legacy to his wife, to be divided into five equal shares; one share to go to his son, the complainant; one share to each of his daughters; and one share to be divided equally among his grandchildren, the children of his deceased son, John Henry Ackerman. Isaac N. Voorhis and Cornelius Cadmus, the sons-in-law of the testator, are appointed the executors of his will.
The complainant receives an equal share with the other children of his father, but is dissatisfied with this equality, and charges that the will is a fraud upon his rights. He alleges that he worked upon the farm in question — being his father’s homestead — till he became of age, in 1855, when he married and continued to live there and work with and for his father till the spring of 1857, when he made an arrangement with his father under a verbal agreement, which is set out as follows: “ It was understood and agreed between them that your orator should cultivate the said farm and a five acre lot at his own cost and expense 'and for his own benefit, and should at his own cost and expense provide all the buildings and improvements he required; should keep all the buildings and improvements in repair at his own cost and expense; should pay all the taxes levied and to be levied against said farm; and should pay to his said father the sum
The agreement thus alleged was afterwards, as complainant says, modified by omitting from its operation the five acre lot. He further says that he took possession of the farm under this agreement, and cultivated the same, repaired the fences and buildings, erected such additional buildings and fences as were needed, and had the whole house painted, including the part occupied by his father, firmly believing that his father would carry out said arrangement by devising said farm to him upon his decease. He alleges that he has fully performed the agreement on his part, and prays that the devisees and executors may be ordered to convey the farm to him in pursuance of the agreement on the part of his father.
There are several aspects of this case which, in my judgment, are unfavorable to the claim set up by the complainant, and which, if not decisive against it on strictly technical grounds, do not commend it to the exercise of that discretion on which alleged contracts of this nature depend, in a court of equity for compulsory specific performance. But I shall not advert to these aspects, or to any point presented by the pleadings and proofs, except the single and primary point, that the alleged contract, in pursuance of which the farm was to belong to the complainant, has not been sufficiently or satisfactorily proved. I am of opinion that the agreement or understanding sot out in the bill was not, in fact, made by the father and the complainant. It may be true that the expectation existed on the part of the son, that the farm would be 1ns, and that such a result was contemplated by the father as not unlikely, or as altogether probable in the final division of his estate; but no definite, positive and binding contract, even of a verbal description, -was entered into which can now be enforced. The yearly value of the premises,
I shall advise as above.