80 S.W.2d 611 | Ky. Ct. App. | 1935
Affirming.
On February 11, 1934, Catherine Maloney, a maiden lady past 80 years of age, died testate a resident of Kenton county, Ky. Having never married, she left no descendants, and her will, dated May 12, 1933, after some special devises and bequests, gave the remainder of her property to her two brothers, the defendants and appellees, Michael E. Maloney and James W. Maloney. Her estate, disposed of by her will, which was duly probated, consisted of property of the value of, perhaps, $150,000, mostly personalty, and her realty (being about one-fifth of her estate) was located in the states of New Jersey and Kentucky. The appellant and plaintiff, Edwin J. Maloney, was her nephew, being the *568 only child of a deceased brother. Upon the death of his father he went to live with his aunt, the testatrix, Catherine Maloney, which was in July, 1902. She reared and educated him, and, after her will was probated on March 5, 1934, he filed this equity action in the Kenton circuit court against his two uncles and the other appellees who were special beneficiaries under the will of his aunt, seeking by his petition to impress a trust upon the property devised and bequeathed to his two uncles by the residuary clause of his aunt's will because of the facts alleged by him therein.
They were, in substance (after first incorporating what we have stated), that, after entering the home of his aunt, and continuously until her death, "except a very short period of time," she treated him as her child, and he performed services for her around the home as is usually done by a son for a parent, and that such services were reasonably worth $25,000; "that she repeatedly stated and agreed that she would, in consideration of said services, and intended to bequeath and devise all her property, of every character and kind, to this plaintiff"; but that, because of changed financial conditions of each of the parties (to be hereinafter referred to), they changed the alleged agreement after the death of Thomas J. Maloney, an uncle of plaintiff, and a brother of his aunt, Catherine Maloney, which occurred on January 18, 1933, and that the parties then agreed to execute mutual wills devising and bequeathing to each other their respective estates, with the exception of certain agreed upon special devises, and that pursuant to the latter agreement they did execute mutual wills to that effect on February 14, 1933, 26 days after the death of Thomas J. Maloney in New Jersey. The latter died intestate, the owner of property worth at least $500,000, to be divided between his surviving brothers and sisters and the children of those who had died, and which made each heir or set of heirs entitled to one-fifth of his estate. So that plaintiff, as the only heir of his deceased father, obtained from his uncle's estate property of the value of at least $100,000, and his Aunt Catherine received a similar amount.
Defensive motions, demurrers, and pleadings were filed on rule days during vacation and later of record, and it was affirmatively made to appear that no writing of any kind was ever executed between plaintiff and his *569 Aunt Catherine other than their mutual wills, and neither of them made any reference whatever to any alleged contract for their execution, nor did the alleged mutual will of the aunt incorporate in any manner or make reference to the alleged consideration for her alleged promise to devise her property to plaintiff in consideration of services rendered by him to her as first alleged in his pleading. On the contrary, the motive of the aunt for executing her alleged mutual will is thus stated therein: "By reason of all the many kindnesses shown to me during his life and the love and affection I have for him thereby, I give devise and bequeath to my nephew, Edwin J. Maloney, all the residue of my estate, real and personal." The incentive for his executing his mutual will to his aunt is similarly stated in it. Because of the alleged agreements on the part of Catherine Maloney to devise her property to plaintiff, her nephew (as he contends), being oral and not in writing, and perhaps for other reasons not necessary to mention, the court dismissed plaintiff's petition, and to reverse that judgment he prosecutes this appeal.
In the recent case of Gibson v. Crawford,
Defendants not only relied on section 470, embodying our long-standing statute of frauds, in avoidance of the imposition of the trust on the real estate owned by the testatrix, but they further pleaded and relied on section 4 of chapter 148, p. 481, of the Session Acts of 1928, and which is section 2651b-4 of the 1930 Edition of Carroll's Kentucky Statutes, and is a part of what is known as our "Uniform Sales Act." The first part of that section says: "A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf." The second part applies its provisions to all sales or contracts transferring the title of personal property, notwithstanding it was the intention of the parties to make delivery at some future time or to procure and deliver the property in the future pursuant to the contractual terms.
Counsel for plaintiff seeks to avoid the application of the latter statute by relying upon the case of Wright v. Wright,
The Supreme Court of Maryland in the case of Hamilton v. Thirston,
But counsel for plaintiff seeks to avoid the effect of either of the statutes referred to by saying that plaintiff performed services for his aunt before our Uniform Sales Act was enacted, and that it should not apply to him. One answer to that contention is that plaintiff expressly alleged in his petition that the performance of services by him to his aunt, as a consideration for her promise to devise to him her property, was abandoned after the death of Thomas J. Maloney, and that a new consideration was substituted therefor, which was that each party should execute to the other their mutual will as agreed upon. However, this contention is based upon the hypothesis that there was an enforceable agreement made by Catherine Maloney to compensate plaintiff for his alleged services at the inception of the assumption of their relationship, when the allegations of plaintiff's pleading negatives any such agreement. The averment is "that she repeatedly stated and agreed (after the relationship was assumed) that she would, in consideration of said services, and intended to bequeath and devise all her property, of every character and kind to this plaintiff," but which would seem to be only a nudum pactum promise made by the aunt to plaintiff after he had taken up his abode with her.
But, notwithstanding that view of the case, and upon the assumption that there was a contract made at the time plaintiff became a member of Catherine Maloney's household, his counsel furthermore insists, in avoidance of the application ofany statute of frauds, that plaintiff performed his contract by rendering the services alleged and also performed the later alleged contract by executing his will as he agreed to. However, the Gibson Case, supra, and others, expressly hold that the mere execution of wills pursuant to an agreement for mutual wills is not such an all-round performance of the contract as to take the case out of the provisions of the statute, of frauds, and for that reason the contention now under consideration may not apply to *573
the real estate of Catherine Maloney. But counsel strenuously insists that, since plaintiff has fully performed his agreement to render services, the statute of frauds may not be interposed to defeat the right he attempts to assert herein, under the doctrine of the case of Dant v. Head,
One of our cases, confining the part performance doctrine to only the character of contract referred to, is that of Beckett-Iseman Oil Company v. Backer,
Other grounds are presented and argued in defense of the action, such as that, the alleged contract being unenforceable as to the real estate of the testatrix, and both it and her will being entireties embracing both personalty and realty, the alleged contract should be construed and enforced as an entirety, since there is nothing to show that it was or is severable as to the two classes of property, and the cases of Grant v. Grant,
Wherefore the judgment is affirmed.