187 A.D. 53 | N.Y. App. Div. | 1919
Lead Opinion
This is an appeal from a judgment decreeing the specific performance of an oral contract alleged to have been made by one William H. Brown, ■ whereby he agreed that the plaintiff should upon his death receive all of his estate. The defendants are the executor and legatees under the will of said Brown.
The plaintiff is the daughter of Robert McDowell Cugle. Her mother died in 1889 and after her death plaintiff, who was then a child of tender years, continued to live for some time with plaintiff’s maternal grandmother and her aunt, the sister of her mother, then Helen Cook, now Helen Le Peton. Mr. and Mrs. Brown had been friends of Mrs. Cugle in her lifetime and continued their intimate friendship with Mr. Cugle after his wife’s death. They were childless and there is no question but that they were fond of the plaintiff, then about seven years of age, and for about two years after her mother’s death she frequently visited them for a day or two at a time. Subsequently she became a permanent member of the Brown family and sustained towards them and they towards her the relationship of parents and child. There was no formal adoption, however, until 1914, when the plaintiff was thirty-one years of age. At that time the laws of the State of New York did not permit the adoption of an adult. Mr. and Mrs. Brown and the plaintiff went to Philadelphia for the purpose of taking advantage of the adoption laws of that State and proceedings under those laws were taken and a decree of adoption entered, after which they returned to New York. On the day after the legal adoption Mrs. Brown executed a will leaving the bulk of her estate to a trustee in trust to pay over the rents, income and profits to the plaintiff during her life and upon her death to pay the principal to
Mr. Brown died on April 24, 1917, and the will above referred to was duly probated. This action was brought to compel the specific performance of an alleged irrevocable oral
There is no question but that from 1890 down to the time of the discovery by Mr. Brown of the plaintiff’s clandestine marriage the relation between the parties had been those of parents and child, and that it was the settled and fixed intention of both Mr. and Mrs. Brown, often expressed, and carried out by Mrs. Brown, and by Mr. Brown, until he, by reason of the said discovery, revoked his prior will, to leave the plaintiff substantially all their property. But the intention to do a certain thing, however many times expressed, is not the equivalent of an irrevocable contract to do that thing. Unless hampered by contract a person of sound and disposing mind has the right unfettered, except by the statute in regard to dower, to dispose of his property as he will. There is no writing of any kind or description by anybody which embodies this contract or refers to it or suggests it. None of the four wills in evidence, one by Mrs. Brown and three by Mr. Brown, two of the latter executed when he still had the intention of giving the bulk of his estate to the plaintiff, accord with the claim of an irrevocable oral contract to leave her all their estate. It becomes necessary, under the rules repeatedly laid down and enforced by the Court of Appeals, to examine the testimony with great care for the purpose of discovering whether, within those rules, there is sufficient evidence to support the findings of the Special Term. The only witness who testified to the making of the contract is her aunt, Mrs. Helen Le Peton, who at the time she gave her testimony was, from the dates that she gave as to
Again: “ They asked Mr. Cugle to give his consent to having Florence legally adopted. * * * Mr. Cugle told them that after Florence had visited for a while, he might make up his mind to have them take her legally and adopt her by court proceeding. * * * He said she could go and visit for two years.”
She testified as to a conversation with Mrs. Brown at a hotel before' the Cugle household was broken up. “ She •
Under cross-examination she testified that her name was Gook when she was living with Mr. Cugle in Lenox avenue and that her husband was dead. That this was in 1889 and that she was married to her present husband about 1890 and that she immediately went to live with him. “ Q. Then since your marriage, which was in 1890 — have you given the date? A. About 1891. Well, it was between 1890 and 1891. Q. Don’t you remember the date when you were married? A. I could give you the date by going home and getting my certificate. I don’t remember just exactly now. * * * Q. What month was it? A. September. Q. September, 1890? A. About that. Q. What do you mean by ‘ about that.’ It may not be September, do you mean? A. I mean it was * * * September, 1890, * * * I was married. Q. After that you immediately went to live with your husband? A. I did. Q. And all of these conversations that you have been testifying to occurred before your marriage? A. They did. * * * Q. Do you remember and can you recall the date of a conversation you had with Mr. and Mrs. Brown and Mr. Cugle? A. No, sir, I cannot. Q. Not a single one? Á. No, I could not give you the dates. * * * Q. Now, these conversations you spoke of, did they all occur at No. 405 Lenox Avenue? A. With Mr. and Mrs. Brown, yes. * * * Q. All the conversations you had in the presence of Mr. Cugle, with the Browns, occurred of course before your second marriage, didn’t they? A. Yes, sir. Q. Now, then, in those conversations from the death of Mrs. Cugle, May 26th, 1889, down to your marriage which was in September, 1890, I understood you to say that Mr. and Mrs. Brown asked you to induce Mr. Cugle to let them adopt Florence? A. Yes, sir. Q. And Mr. Cugle said he would not do it? A. He could not make up his mind just then. Q. That is what he said up to that time? A. Yes, sir. Q. Up to the time you heard the last conversation? A.
That evidence establishes, as it seems to me, beyond question that whatever conversations Mrs. Le Peton heard between the plaintiff’s father, Mr. Cugle, and the Browns in reference to the plaintiff, . her custody and control, were before her own marriage in 1890, and before the plaintiff had gone permanently to the Browns. As it is clear that Mr. Cugle had refused to entertain the proposition of giving up his daughter or consenting to the adoption it follows that no contract was or could have been made at that time. It is evident that this old lady, after a lapse of twenty-eight years, has confused her general knowlédge of the attitude and intention of the Browns towards the plaintiff, which existed and was carried out throughout all these years, with the making of the precise and irrevocable contract at the beginning of their relations which is the basis of the suit at bar. Even if there had been an offer her evidence clearly shows that it was not accepted. It is quite probable in these early negotiations, when the Browns were undoubtedly desirous of obtaining the child, that they would have said, “ we will treat her as our own child, we will adopt her, we will give her a good home and she will be well taken care of.” I think the necessities of the case have stimulated the imagination of the witness to the extent that she has added provisions tending to show a contract which, without reference to any future events and circumstances, would prevent either Mr. or Mrs. Brown from making any provision for each other or any possible
It is conceded that Mr. Cugle died in October, 1911. It is the fact that no adoption proceedings were taken until the plaintiff was thirty-one years old, in 1914, and it is the fact that she retained her father’s name of Cugle up to the time of said adoption.
There is no other contemporaneous evidence of the making of the contract. There is some testimony as to admissions.
Mrs. Anna B. Mason, who was a classmate of the plaintiff at Wells College in 1901, and who had not seen her in the interim, testified to a conversation with Mr. Brown in November, 1915, when she visited him at the plaintiff’s suggestion to borrow some money, in which Mr. Brown said:
*62 “ Then he went back and told me how he put Florence there when she was a little girl, and his family — he did not say what date — but that she was a child; and went on at great length about what a beautiful child she had been, and how he had been always so proud of her; and he said that there had been an agreement with her family — * * * I don’t know as I can say exactly what words Mr. Brown said. * * * The word ‘ agreement ’ was used. I know that. Q. Give us the exact words as near as you can. And if you cannot give us the exact words, give us your best recollection of what Mr. Brown said. You were telling us that he said he had made an agreement with her family? A. Yes, that was what he said — he made an agreement with Florence’s family when he took her into his household, that he would make her his heir, and not only that, but that Mrs. Brown would also make her her heiress. Q. What else did he say. Did he say anything about Mrs. Brown? A. Yes, sir, he said that Mrs. Brown — that Florence had Mrs. Brown’s money; that Mrs. Brown had died shortly before, and had made Florence her heir, that she would be a very rich girl.”
She said under cross-examination that she did not consider this talk with Mr. Brown of so much importance as to remember exactly how he phrased it and that she never thought it was of any importance until she had a letter from Mrs. Ennis. Edwin Cugle, the first cousin of the plaintiff, said that at the time of his uncle Robert Cugle’s funeral in 1911, he had ridden in the same carriage with Mr. Brown to the funeral and that Mr. Brown said he was devoted to Florence; that she would eventually be a very rich girl; she would not only inherit all of Mrs. Brown’s money and Mrs. Manley’s money but all of his money, and his brother’s in Philadelphia, notwithstanding that her father left nothing. “ Q. What else did he say? A. It was practically the same thing all the time — that he was fond of her and she lived with him and he raised her. Of course we knew all about that.” One night he had a conversation with Mr. Brown in which he said “ that he and Mrs. Brown considered Florence their child, that they had raised her and had given her all the advantages they could, and there were very few girls that had the advantages that he had been able to give Florence.
After considerable effort by the examiner the witness was asked: “ Q. Do you recall any conversation in which Mr. Brown stated the circumstances of the arrangement with Mr. Cugle that he had relative to Florence? * * * A. Yes, sir. Q. Now, will you detail that conversation? * * * A. lean distinctly recall Mr. Brown stating that he had taken complete charge of Florence, and that Mr. Cugle had turned Florence over to him and Mrs. Brown to rear and raise thinking it for her best to do it, and that he was. only too glad to do it, and that she was having the care and attention that any parent could give any child, and a great deal more than a great many parents could give their children. * * * Q. I am asking you for the conversations with Mr. Brown, and as to what Mr. Brown said that he would do, if anything, in reference to Mr. Cugle and Florence? A. The arrangement he had made with Uncle Bob was that Florence was to be his heir, as well as Mrs. Brown’s heir.”
Of the testimony of Mrs. Le Peton and Mr. Cugle, her aunt and her cousin, the learned counsel for the respondent says: “There is not only nothing suspicious or improbable in their testimony, but on the contrary, it is corroborated in every respect by the documentary evidence in the case and the undisputed conduct of the Browns. Under such circumstances the trial court cannot be criticized for having credited their testimony, for he was bound to credit it as a matter of law. (Hull v. Littauer, 162 N. Y. 569.) ”
I do not agree with the proposition of law so asserted. In Tousey v. Hastings (194 N. Y. 79) the Court of Appeals said: “ There may be a question of fact when all the witnesses are worthy of belief and no witness contradicts another. Diverse inferences may be drawn from the narrative of a truthful witness and when the narration is of oral admissions
And this court said in Wildman v. Jones (150 App. Div. 514): “ The distinction between the declaration of an intention to make a will in a certain way and a definite agreement to do so, while of the greatest importance when it comes to proving a claim like the present, might easily not be perceived by a layman unaccustomed to considering nice distinctions in language.”
The respondent claims that the documentary evidence in the case supports the making of the contract. In my opinion the contrary is true. It must be borne in mind that the contract was asserted to be that both Mr. and Mrs. Brown should leave all of their estate to the plaintiff. Mrs. Brown’s will, in regard to which the plaintiff has instituted no action, did not conform to the alleged contract. She gave outright to the plaintiff all her silverware, jewelry and so much of her personal effects as she might desire together with the sum of $10,000 absolutely. She gave to a trustee the sum of $7,000 to pay over the income to her aunt during life and the further sum of $3,000 to pay over the income to a woman friend for life. The rest and residue she gave to a trust company in trust to pay the income during her life to the plaintiff with power of disposition by last will and testament and if she died intestate to her lawful issue with provision over, in case of intestacy and no issue, to a number of legatees, individual and corporate, one being $10,000 to her name-sake, the daughter of her husband’s partner, who, as executor, is defendant in this case. Mr. Brown’s will, made in 1915, after leaving his books, silverware, household furniture and personal effects to the plaintiff, bequeathed to the daughter of his partner absolutely a legacy of $10,000 and, after providing for the sale of his interest in the business to his partner, left the residue of his estate, in trust, to pay over the income
There have been many cases in this State involving the question of a contract made to take effect upon the death of the promisor. In most of them the promisor died intestate. As said by Judge O’Brien in Ide v. Brown (178 N. Y. 26, 35): “ Whatever else may have been decided it is safe to say that it has never yet been decided that a verbal arrangement such as appears in this record has been given such effect as to subvert the provisions of a will.”
I do not believe that upon the rules laid down in the unbroken line of cases covering this subject the last will and testament of Mr. Brown can be destroyed and held for naught upon this alleged oral irrevocable contract made by him and his wife twenty-seven years before his death. The respondent cites Winne v. Winne (166 N. Y. 263), but in that case the Court of Appeals was acting upon the unanimous affirmance of the Appellate Division. Furthermore in that case the agreement was in writing and there was no will to show the understanding of the decedent, and the court threw out this warning: “ While we are of the opinion that specific performance of this contract was properly awarded, this decision is based solely upon the findings of the trial court, and the particular facts and circumstances of this case. Yet, it must not be regarded as an authority for maintaining such an action under different circumstances or upon other proof, as
And there were two dissents to the affirmance in the Court of Appeals. Healy v. Healy (55 App. Div. 315; affd., 166 N. Y. 624, without opinion) is also relied upon. Of that case the Court of Appeals said in Hamlin v. Stevens (177 N. Y. 39): “ In a later case we were fettered by the iron rule of unanimous affirmance which prevented us from looking into the evidence, and, following the Winne case, we affirmed the judgment. (Healy v. Healy, 166 N. Y. 624.) ”
In Mahaney v. Carr (175 N. Y. 454) the Court of Appeals reversed a judgment of the Appellate Division affirming a judgment in favor of the plaintiff entered upon a decision of the court on trial at Special Term. The judgment depended upon this finding of the court below: “ That the plaintiff is the daughter of James Connelly and that prior to and until about the month of April, 1876, the plaintiff lived with her said father as his daughter. That during or about the month of April, 1876, plaintiff’s said father, James Connelly, in behalf of this plaintiff, entered into a contract with Joseph Carr, deceased, the grandfather of this plaintiff, in and by which plaintiff’s said father, James Connelly, surrendered to said Joseph Carr, deceased, all rights in and to the plaintiff as his daughter, and permitted said Joseph Carr, deceased, to adopt the plaintiff as the daughter of said Joseph Carr, deceased, and to take her as his child, take his name, and have the sole benefit of the plaintiff’s society, services and earnings', in consideration for which said Joseph Carr, deceased, agreed with said James Connelly in behalf of the plaintiff that said Joseph Carr, deceased, should give this plaintiff a child’s share of his property upon his death, to wit: a one-fourth interest in all the real and personal property which said Joseph Carr, deceased, should thereafter acquire.” The court said: “ It does not appear from the finding that the alleged contract was in writing, and upon the argument in this court the learned counsel for the plaintiff treated it as entirely oral. It must certainly be permissible to look into the record for the history of the transaction and in order to ascertain the true scope and meaning of the finding and then
“ The finding of fact described a case or a transaction that must occur almost every day, or at least is a very common event in the domestic relations, but the learned courts below have attributed to the facts found legal consequences that are far-reaching and of the most momentous importance. It has been held that from the time that the deceased took this child under the arrangement found he became disabled from transferring or disposing of his property, since all such conveyances and transfers, even to his wife, have been held to be null and void as to the plaintiff. It has been held that the grandfather’s will, in which he attempted to dispose of his property for the support and benefit of his widow, is also null and void as to the plaintiff, and generally that the plaintiff by means of this simple transaction, when she was five years old, secured legal rights against her grandfather and his property that over-reach and over-ride all future conveyances, transfers, gifts or testamentary dispositions of the same by him. From the time that the grandfather took this child into his house his right of future disposition of his property, which all men generally possess, became limited and restricted. These are the conclusions to be deduced from the judgment in this case.” The judgment was reversed.
In Hamlin v. Stevens (177 N. Y. 39) the court said: “ Contracts of the character in question have become so frequent in recent years as to cause alarm, and the courts have grown
This received the unanimous approval of the court.
In Ide v. Brown (178 N. Y. 26, 43) Judge O’Brien used this language, after reviewing the rules as to this class of cases: “ When the testator made the will disposing of his estate he supposed that the law of the land was- that he had the right
In Holt v. Tuite (188 N. Y. 17), reversing the Appellate Division, which had affirmed an interlocutory judgment of the Special Term for plaintiff, Judge Hiscock said that the action “ was brought to compel specific performance of a contract alleged to have been made between the intestate, Bridget Ditton, and said Margaret Gallagher while an infant, whereby the former agreed that upon her death all of her property should pass to the latter in consideration during the former’s fife of the companionship of, and the assumption of a child’s duties and the performance of certain other services by said Margaret, and which contract, it is claimed, was fully executed by the latter. * * * It is not claimed that there was any written contract or that the public authorities or any other adult acted in behalf of the infant in making the alleged contract. Outside of the facts already referred to,” living with the decedent, taking her name, working for her, being married from her house and the decedent calling Margaret’s child her grandchild, etc., “ the evidence that there ever was any such contract consists solely in the testimony by certain witnesses of statements or admissions alleged to have been made by Bridget Ditton and which have been supposed to establish the existence and details of the contract. * * * I next pass in order to a consideration of the rules by which we are to determine the weight and force of the evidence and facts which have been recapitulated. Those rules must be reasonably familiar, for recently they have been formulated by this court after much consideration and with deliberation. They have emphasized with increasing decisiveness the caution with which claims of the class to which the present one belongs must be scrutinized and the high order of proof by which they must be sustained. The court has felt compelled to do this by the frequency with which such claims were arising and in view of the dangerous opportunities afforded through them of fraudulently sweeping the property of a dead person away from those to whom it would naturally pass.
The court proceeded: “ In Rosseau v. Rouss (180 N. Y. 116,120) in speaking of an alleged contract sustained by many equitable circumstances and directly testified to by one interested witness who was corroborated by three witnesses testifying to admissions made by the decedent to the effect that he had made a contract resembling the one sworn to, the court said: ‘ Thus, the evidence relied upon to establish the contract is, first, the testimony of the mother, who tried to swear $100,000 into the pocket of her own child, and, second, the testimony of witnesses who swear to the admissions of a dead man. The former is dangerous; the latter is weak, and neither should be acted upon without great caution. We have repeatedly held that such a contract must not only, be certain and definite and founded upon an adequate consideration, but also that it must be established by the clearest and most convincing evidence. * * * We have been rigid and exacting ■ as to the sufficiency of the evidence to establish them [such contracts] and have condemned the proof thereof ‘ through parol evidence given by interested witnesses.’ As ‘ such contracts are easily fabricated and hard to disprove because the sole contracting party on one side is always dead when the question arises,’ we have declared that they ‘ should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses.’ ”
And using language especially applicable to this case he said: “ But, conceding that equitable considerations would have been satisfied by a disposition of all of the decedent’s property, the burden still rested upon the plaintiff to establish that in fact a contract was made providing for such disposition. The mere fact that equity would justify such a contract will not satisfy the necessity of proving that such contract in fact was made. And it is on this point that plaintiff’s case, as I regard it, is fatally weak. * * * Some of the witnesses who have detailed these talks do not appear
And the judgment was unanimously reversed.
In Tousey v. Hastings (194 N. Y. 79) the court said: “ There was no writing of any kind to support the contract. No witness was called who was present when it is alleged to have been made and the only evidence to establish it was given by two witnesses, doubtless disinterested, who testified to admissions made by the decedent in casual conversations with them more than two years before. She made two wills afterward and in each ignored the plaintiff’s claim, yet it is conceded that she was a woman of high character. *• * * As the highest Federal court once declared: ‘ Courts of justice lend a very unwilling ear to statements of what dead men had said.’ (Lea v. Polk Co. Copper Co., 21 How. [U. S.] 493, 504.) ”
In Taylor v. Higgs (202 N. Y. 67), where the action was brought to specifically enforce a contract alleged to have been made by the deceased whereby she promised upon her death to devise and bequeath to plaintiffs all the property she had received under the will of her late husband, in reversing an affirmance by the Appellate Division of a judgment for the plaintiffs at the Special Term, Chief Judge Cullen said: “The testimony to establish the agreement contended for was that of Mrs. Beckham, a sister of Dr. Taylor, and Mrs.
In Matter of McMillan (167 App. Div. 817; affd., 218 N. Y. 64) this court held that while the testimony of the husband of the claimant was not incompetent under section 829 of the Code of Civil Procedure, “ he was an interested witness and that as such his testimony cannot be regarded as of a quality sufficient to support the judgment under the rule laid down in similar cases.” We pointed out, after quoting the rule in Hamlin v. Stevens (supra), that in Holt v. Tuite (supra) “ the witnesses whose testimony was disregarded as being interested were in no way legally interested in the estate or the property nor related by kinship to the parties. They were merely involved in certain disputes calculated to excite their ill will against the heirs or representatives of the estate.”
That in Hungerford v. Snow (129 App. Div. 816) the husband testified to the oral agreement, and the court held that the defendant had failed to establish it by such clear and convincing evidence as is required under the rule; that in Scheu v. Blum (119 App. Div. 827) the same rule was applied to the husband’s testimony; that in Dueser v. Meyer (129 App. Div. 598) the same rule was applied to the testimony of the plaintiff’s wife; that in Butcher v. Geissenhainer (125 App. Div. 272) the rule was applied to sisters; and in White v. Devendorf (127 App. Div. 791) the rule was applied to the testimony of relatives.
From a careful consideration of all of the evidence in the case and the examination of all of the cases bearing upon the subject I have reached the conclusion that there is not sufficient evidence to sustain the third finding of fact as to the making of the contract in or about the month of May, 1890, and that there is no evidence in the case to support the eighth finding that at the time of the adoption in 1914, Mr. and Mrs. Brown agreed with plaintiff that On their death plaintiff should be their heir and should receive all their respective
Latighlin and Smith, JJ., concurred; Dowling and Merrell, JJ., dissented.
Dissenting Opinion
This action is brought to enforce the specific performance of a contract whereby William H. Brown in the year 1890 agreed in consideration of plaintiff’s father forever surrendering plaintiff and all his natural and legal rights as her father to Brown and his wife, the latter would take plaintiff (then of the age of seven years, her mother "being dead) and adopt her when their then surviving parents died; that they would rear, support and educate plaintiff and treat her in all respects as their own child, and that said Brown and his said wife further jointly and severally agreed that on their death plaintiff should be their heir and receive all of their respective estates.
A case such as this, founded upon an oral contract claimed to have been made many years ago with a person now deceased, falls within the category of those agreements which the Court of Appeals often characterized as easily fabricated, hard to disprove, to be regarded with suspicion, requiring to be established clearly by satisfactory evidence, and necessitating proof of their consideration, their equitable nature and their certainty and definiteness. (Shakespeare v. Markham, 72 N. Y. 406; Gall v. Gall, 138 id. 675; Brantingham v. Huff, 174 id. 53; Hamlin v. Stevens, 177 id. 39; Mahaney v. Carr, 175 id. 454; Rosseau v. Rouss, 180 id. 116; Tousey v. Hastings, 194 id. 79; Taylor v. Higgs, 202 id. 65.) And yet there is no reason, either in law or in equity, why such a contract should not be specifically enforced if the proof measures up to these tests, and meets the requirements laid down in Tousey v. Hastings, of being “ clear, credible and satisfactory.” I think the case now under consideration is so established.
The proof shows that in 1890 plaintiff, then known as Florence Cugle, was of the age of seven years, and was living
It was shown that the safe deposit vault in the National Park Bank containing Brown’s securities (amounting to $105,000) was rented in the name of “ William H. Brown or Florence C. Brown.” It was not changed to Brown’s sole name until after plaintiff’s marriage. The securities were still therein at the time of Brown’s death. The lawyer iri Philadelphia who attended to the legal business there, was called to testify to the adoption proceedings and to the various wills.
The documentary evidence in the case is most important, and to my mind conclusively establishes the plaintiff’s version of the contract. It is her claim that she was to be legally adopted by Brown and his wife only after both their then surviving parents were dead. The last to die was Mrs. Charlotte Manley (mother of Mrs. Brown), who died in December, 1913. The other parent, Mrs. Matilda Brown, had died in 1910. Plaintiff’s father died in 1911. In May, 1914, Brown and his wife, taking plaintiff with them, went to Philadelphia. On May 20, 1914, Brown and his wife verified a petition to the Court of Common Pleas No. 3, for the city and county of Philadelphia, wherein they set forth:
“ 1.' That petitioners were born in the State of Pennsylvania and have been married to each other for upwards of 32 years.
“ 2. That petitioners have for many years past resided in the City of New York; that their last and recent residence there was No. 134 West 86th street, and within the last few days they have quit and abandoned the same as their home and residence, and have not determined where they will permanently reside in the future.
“3. That petitioners are frequent visitors to the City of Philadelphia, in the State of Pennsylvania, and are at present temporarily residing at the Hotel Bellevue-Stratford in said City.
*77 “ 4. That petitioners are childless and their family consists of themselves and Miss Florence A. Cugle. That the said Florence A. Cugle was born in the State of New York on March 1st, 1883, and she is just past 31 years of age; that she is the daughter of fiobert McDowell Cugle and Melvina Cugle, both of whom are deceased; that she is a single woman and has no brother or sister.
“ 5. That the said Florence A. Cugle has lived with the petitioners since she was seven (7) years of age, and since then has been wholly supported and educated by them, and during all that period to the present has been reared and treated by them as if she were their own offspring.
“ 6. That the petitioners are desirous of adopting the said Florence A. Cugle, as their child and as one of their heirs, and she the said Florence A. Cugle consents to be so adopted and to be subject to the duties of such child, as will appear by her joining in the prayers hereof.
“ 7. The petitioners are also wi ling and desirous that the said Florence A. Cugle shall assume and bear their name and the said Florence A. Cugle is also desirous of assuming and bearing the surname of the said petitioners.
“ Wherefore your petitioners pray your Honorable Court to order and decree that the said Florence' A. Cugle shall have all the rights of a child and heir of your petitioners and be subject to the duties of such child, and that the said Florence A. Cugle may assume and bear the surname of your petitioners.
“ And your petitioners will ever pray.
“ WILLIAM H. BEOWN,
“ CHAELOTTE P. BEOWN.”
The petition was verified by both of them; plaintiff, signing as Florence A. Cugle, joined in writing in the application, and consented to the proposed adoption of her by the Browns and to the assumption by her of the name “ Brown.” A decree of said court was accordingly made on May 25, 1914, granting the prayer of the petitioners, and ordering and decreeing “ that said Florence A. Cugle shall have all the rights of a child and heir of the said William H. Brown and his wife Charlotte P. Brown, the petitioners, and be subject to the duties of such
Mrs. Brown died in October, 1915. Her will was duly probated and plaintiff is still receiving the income from the residuary estate amounting to $6,375 annually. That Mrs, Brown deemed her will to amount to a gift of all her property to plaintiff is shown by the testimony of defendants’ witness, Mrs. Annie S. Brown, that Mrs. Brown said she had made a will leaving everything she had to Florence; and Mr. Brown said that was his wish, he wanted her to have everything. On October 29, 1915, Brown made his will in Philadelphia whereby he gave “ unto my adopted daughter Florence A. Cugle Brown (her adoption by me having been confirmed by a decree of the Court of Common Pleas No. 3 of the City and County of Philadelphia, dated May 25th, 1914) ” all his books, silver and silverware, household goods and furniture and personal effects. After bequeathing $10,000 to Charlotte Brown Chichester' he directed his interest in his business to be sold to his partner, Howard Chichester, for $50,000, payable in promissory notes, and the interest on the notes as paid
The plaintiff had been married in April, 1916, but concealed the fact from Brown, who did not learn of the marriage until November, 1916. The idea of a marriage between plaintiff and Ennis seems to have been particularly repugnant to Brown, who was greatly angered when he learned of it, and on November 16, 1916, at the city of Philadelphia, Brown made his final will whereby he left nothing to plaintiff and set forth the reasons as follows:
“ Eleventh. It is proper that I should state that my reason for not leaving any portion of my estate to my adopted daughter, Florence C. Brown, is because she has already been mentioned in the will of my wife, and because she has recently been secretly married without my knowledge or consent, in violation of a solemn promise made to my wife, Charlotte P. Brown in her life time.”
William H. Brown died at the city of New York on April 24, 1917. He had no heir or next of kin save his adopted daughter, the plaintiff.
The will of November, 1916, was duly admitted to probate by the Surrogates’ Court of New York county October 4, 1917, after objections had been filed by plaintiff on the ground of testator’s incapacity and fraud and undue influence exercised by Howard Chichester.
The testimony for the defendants does not controvert the main facts testified to on plaintiff’s behalf. A clergyman testified that after learning of plaintiff’s marriage, Brown was much disturbed because she had married against his wishes, and he told the witness he and his wife had both determined to leave her the bulk of their property, as they were very fond of her; that she had already received her inheritance from Mrs. Brown and he (Brown) was going to Philadelphia to make a new will, so she would not get anything from him. Later he told the witness he had been to Philadelphia, had
The executor was called to identify certain checks drawn by Cugle, showing monthly payments of $175, the amount of the rent of the house in which both families were living at one time.
In my opinion this record establishes by clear, credible and satisfactory evidence that Brown and his wife, in the year 1890, when plaintiff was seven years of age, made a contract with plaintiff’s father (her mother being dead) • whereby in consideration of said father surrendering the plaintiff forever to Brown and his wife, the two latter agreed to support, rear and educate plaintiff and treat her in all respects as their own child, and to adopt her legally as soon as the last surviving parent of either Brown or his wife died, and to make her their heir and to leave her by will their respective estates..
The judgment appealed from should be affirmed, with costs.
Merrell, J., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.
