186 N.Y. 178 | NY | 1906
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *180 We think the complaint sets forth a good cause of action in equity. To hold otherwise we would have to overturn principles of law and equity that have been recognized and established for centuries.
Ante-nuptial contracts, whereby the parents of the parties about to marry have agreed to settle property upon one or both of the spouses, either upon the performance of the marriage ceremony or by testamentary devise or bequest, are of such frequent occurrence, especially in England, that they form a distinct class in the body of our law. For the purposes of this discussion we may assume that this action could not be maintained at law, although there is very respectable authority to the contrary in England, where actions at law have been maintained even upon informal agreements of this nature. (Shadwell v. Shadwell, 30 L.J. [C.P.] 145; 9 C.B. [N.S.] 159; Douglas v. Vincent, 2 Vernon, 201.) One of the very purposes of equity is to aid where the law fails. In the determination of this appeal it should be borne in mind that a court of equity will take into consideration the facts and circumstances appearing when the case is tried. If it should then appear that the plaintiff's habits are such as to endanger the safety of the fund which he claims, and that its transmission to him might deprive his wife and children of proper means of support; or if for any other good reason a court of equity might deem it unfair, inequitable or unjust that specific performance of the contract in suit should be decreed, a wise *182
judicial discretion would, of course, be interposed to withhold a decree, the effect of which would be to defeat the very object for which the contract was made. A court of equity can always mould its decrees so as to measure out justice to all concerned, and the question whether specific performance will or will not be decreed in a given case is always addressed, in the first instance, to the sound judicial discretion of the court whose aid is invoked. (Seymour v. De Lancey, 6 Johns. Ch. 222;Margraf v. Muir,
It is suggested that if we should give effect to the ante-nuptial contract formally drawn up and signed by the plaintiff and all other parties in interest, we would be treating it as a testamentary instrument which the plaintiff is, in some unexplained way, precluded from enforcing because he interposed no objections to the probate of his father's will. We think there is no force in this contention. Such agreements have been upheld for hundreds of years, although their ultimate effect is usually to change the current of attempted testamentary disposition of estates. The direct, and, indeed, the only, purpose of this agreement, plainly expressed, was to secure to the plaintiff an equal share with his sisters in the distribution of his father's estate. That was the end in view, and equity, if no good reason intervenes, will give effect to the expressed intention. The principle upon which such agreements are sustained was stated by Lord CAMDEN as early as the year 1769, in Durfour v. Ferraro (Hargrave's Jurid. Arg. 304), and it was not then new. That was a case of mutual wills, in which the learned jurist said (p. 309): "Though a will is always revocable, and the last must always be the testator's will, yet a man may so bind his assets by agreement that his will shall be a trustee for performance of *183 his agreement. A covenant to leave so much to his wife or daughter, etc. * * * These cases are common; and there is no difference between promising to make a will in such a form and making his will with a promise not to revoke. This court does not set aside the will, but makes the devisee, heir or executor, trustee to perform the contract. * * * No man shall deceive another to his prejudice. By engaging to do something that is in his power, he is made a trustee for the performance, and transmits that trust to those that claim under him. This court is never deceived by the form of instruments. The actions of men here are stripped of their legal clothing, and appear in their first naked simplicity. Good faith and conscience are the rules by which every transaction is judged in this court; and there is not an instance to be found since the jurisdiction was established where one man has ever been released from his engagement after the other has performed his part."
We deem it unnecessary to discuss the intermediate cases which have fully and firmly established the principle that a man's representatives shall be trustees of a resulting trust for the benefit of those to whom he has bound his estate by such a contract as is here involved, for we consider the comparatively modern case of Johnston v. Spicer (
Neither do we subscribe to the proposition that this complaint does not state a good cause of action, because the contract which it sets forth may be one which would not support an action at law. There are many contracts upon which an action at law cannot be maintained that are enforceable in equity. "There are agreements which the common law, by virtue of its own doctrines, irrespective of statutory regulation, treats as invalid, as not contracts, and for which it furnishes no remedy; but which equity, in the application of its conscientious principles, considers as binding, and enforces by awarding its relief of a specific performance." (Pomeroy on Specific Performance, § 31.) In Sprague v. Cochran (
We now pass to that phase of the discussion in which it is argued that there was no consideration as between father and son which enables the latter to maintain an action to enforce *185
the agreement. In support of this position there are cited some recent cases in this court, founded upon oral agreements to devise or convey estates in consideration of services rendered to, or benefits actually received by, the promisors, who died without having carried out their respective parts of the several agreements. Such contracts have been held at least open to suspicion and courts are very reluctant to enforce them. (Gall
v. Gall,
It may be conceded that when the elder Phalen made his will he complied with the terms of the contract, in so far as it related to a testamentary provision for the wife and children of the plaintiff, but he did not perform his agreement to give to the plaintiff the same share as his two sisters, and the facts thus far disclosed suggest no reason why a court of equity should not compel complete performance at the suit of the son. He was a party to the agreement and performed on his part by the marriage with his wife. He had a legal interest in the complete execution of the contract and, under principles now well settled, he can compel performance unless some good reason is made to appear why he should not be permitted to do so. *186
It is the rule, both in law and equity, as was held inBorland v. Welch (
The question as to what persons are within the consideration of the agreement in this class of cases has frequently arisen, but it has never been doubted that the parties whose marriage forms the occasion of the agreement are within the consideration and entitled to enforce the contract. Even the issue of such marriage may enforce such an agreement, although they may not be born at the time it is made. (Gale v. Gale, L.R. [6 Ch. D.] 144, 148.) "The promise of a third party may be for the wife's benefit, or it may be for the mutual benefit of the married parties, and enforceable accordingly." (Schouler's Domestic Relations, § 178.) Actions at law have even been sustained upon mere letters to the party about to marry and at his suit, although the only consideration was the marriage. In Shadwell v. Shadwell (30 L.J. [C.P. 1860] 145; 9 C.B. [N.S.] 159) the defendant's testator wrote to his nephew, the plaintiff, as follows: "My dear Lancey. — I am glad to hear of your intended marriage with Ellen Nicholl, and, as I promised to assist you at starting, I am happy to tell you that I will pay to you one hundred and fifty pounds yearly during my life, and until your annual income derived from your profession of a Chancery barrister shall amount to six hundred guineas, of which your own admission will be the only evidence that I shall receive or require." In an action by the nephew to recover, after his marriage with the lady named, the arrears of the annuity promised he was permitted to recover at law. In the case of Coverdale v.Eastwood (L.R. [15 Eq.] 121), after proposals of marriage had been accepted, the lady's father wrote to the intended husband as follows: "V. being my only child, of course she will come into possession of what belongs to me at my decease." In other letters he made statements evidencing the same intention. The father, being then a widower, subsequently remarried. Upon his death he left a will bequeathing part of his estate to his widow and creating certain annuities. Upon a bill filed by the daughter for the enforcement *188 of this contract, it was held, notwithstanding the manifest equities of the widow, that the daughter was entitled to the whole estate. This, as Mr. Schouler says, is a harsh case. Similar informal agreements have been enforced many times in England. (Douglas v. Vincent, 2 Vernon, 201; Wankford v.Fotherley, Id. 322; Moore v. Hart, 1 id. 201.)
The foregoing principles and authorities seem to completely dispose of this case, and the discussion might well close at this point, but there are a few authorities which need only to be cited to show that covenants in marriage settlements, such as the one here in question, binding the parent to leave to a child all or an aliquot part of his property at death, are most usual in such settlements, and have always been sustained. Laver v.Fielder (32 Beav. 1) presented the same general features as those in the case at bar, except that the agreement was informal and the plaintiff was not a party thereto. It was contained in a letter by the father to the prospective son-in law in which he promised that "at my decease she (the daughter) shall be entitled to her share of whatever property I may die seized." The father, in making his will, failed to comply with this agreement, and after a suit by the widow and a son to settle the estate, the daughter was permitted to maintain an action for the enforcement of the agreement and judgment was decreed in her favor. InJones v. Martin (3 Anstr. 822; more fully reported in 5 Ves. 266, note) the father covenanted on his daughter's marriage to leave her at his death an equal share of personalty with his son. The father in his lifetime transferred certain property to his son which was more than the latter's proportion as fixed by the marriage settlement. In an action brought after the parent's death by the daughter and her husband for an accounting and an enforcement of the agreement, judgment was rendered for the relief asked. It was held in the House of Lords that "The contract was stated by counsel for the respondent to be vague, and idle, unmeaning and insecure. It is not, however, an unusual covenant in settlements; many marriages are entered into on such covenants; and they are not inexpedient. They are entitled to *189 favourable consideration. * * * But then it does not confine or restrict the father's powers. He may alter the nature of his property from personal to real; or he may give scope to projects; or indulge in a free and unlimited expense. But he must not be allowed to entertain more partial inclinations and dispositions towards one child than another." In Bennett v. Houldsworth (L.R. [6 Ch. Div.] 671) the father, by a settlement prior to the marriage of his daughter, covenanted that he would, by his will, divide his estate into as many equal parts as he had children, one of such parts for the benefit of his daughter and her husband, remainder to their issue. He failed to carry out the provision for this settlement. In an action by the trustees of the settlement, the agreement was held binding. In that case the vice-chancellor said: "The settlement is, in my opinion, in very plain terms. It does entitle the parties under the settlement to have one equal fourth part of the whole of the testator's estate applied upon the terms of the settlement, but it is only upon the terms of the settlement. The representative of the trustees of the settlement, who asks by this suit to have the trusts of that deed carried into execution, does not ask for the payment of any debt, but asks that the fourth part may be ascertained, and that it may be paid to him in satisfaction of the obligation contained in the settlement. In my opinion, that is a claim which cannot be resisted." To the same effect is McCarogher v. Whieldon (L.R. [3 Eq.] 236). Again, in Willis v. Black (4 Russ. 170), the father covenanted upon the marriage of his daughter to settle upon her and her husband, among other things, as great a share of his property as he should by his will or otherwise provide for any of his younger children. That agreement was enforced after the father's death at the suit of the trustees of the settlement. (Romaine v. Onslow, 24 Wkly. Rep. 899.) In Keays v.Gilmore (Irish R. [8 Eq.] 296) the father, in a letter to a cousin, promised, upon the marriage of his son, to give to his son upon the father's death a child's portion of his estate. An action was maintained by the son's wife as his executrix *190 for a construction of the agreement and its validity was sustained, and within the past year the Irish Court of Chancery (Doyle v. Crean, 1 Irish R. [1905] 252) gave effect to a contract almost exactly similar in its terms. The father, by a settlement made upon the marriage of his daughter, agreed to distribute his estate equally among his children. An action was maintained by the trustees of the settlement on behalf of the daughter without question as to the daughter's right to insist upon the performance of the agreement. Other cases illustrating the general principle are Eardley v. Owen (10 Beav. 572) andIn re Brookman's Trust (L.R. [5 Ch. App.] 182). These cases disclose how uniformly such agreements have been sustained by the courts.
Since the demurrer was not taken on the ground that the plaintiff's wife was a necessary party, that question is not now before us. It may be that if the case should come to trial, she ought to be brought in as a party so that the rights of all persons in interest may be properly presented and disposed of. Specific performance ought not to be decreed unless all proper parties are before the court. (Miller v. Bear, 3 Paige Ch. 466.)
The order of the Appellate Division sustaining the demurrer should be reversed, and the interlocutory judgment of the Special Term overruling the demurrer affirmed, with costs in all courts, with leave to defendant to withdraw demurrer and serve answer within twenty days upon payment of costs.
Dissenting Opinion
This is an action for specific performance of an alleged contract claimed to have been made between the plaintiff and his father. The father was a citizen of New York, but for many years prior to his death he resided with his family in Paris. He died in that city on the 20th of January, 1887, leaving a will executed there, to which was attached seven codicils, the last or seventh of the codicils having been executed on the 17th of January, 1887, a few days prior to his death. By this will and the codicils attached the testator disposed of a large estate, both real and personal, *191 to his widow and children. The will and codicils were admitted to probate in this state, the plaintiff being a party to the proceedings for that purpose before the surrogate. By the last codicil the testator disposed of that portion of his property which had been left by the prior provisions of the will to the plaintiff in trust to the defendant to pay the income thereof annually or at convenient intervals in each year to or for the use and support of the plaintiff during his life, and at his death the said trust should cease and the principal and any unpaid portion of the income of the fund was to go and be divided among his heirs at law. By the prior provision of the will and codicils, after providing for the widow, the testator devised the remainder of his estate in substantially equal shares to his children, and thus by the last codicil these provisions as to the plaintiff were changed into a life estate with remainder to the plaintiff's heirs.
The estate was distributed by the executors in conformity with the provisions of this testamentary instrument. An intermediate accounting was had and a final judicial accounting and settlement subsequently, in which full distribution was made according to the terms of the will, and the executors were discharged from their trust. The controversy in this case does not arise from any defect in the will, but from the transactions which took place many years prior to its execution and to the death of the testator. On the 11th of August, 1873, the plaintiff became engaged to be married to a lady who resided and was domiciled at Baden-Baden. The marriage was preceded by the execution of an ante-nuptial contract or settlement made by the plaintiff and his father and mother of the first part, and the intended wife, with her father and mother, of the second part. By this instrument the testator made some gifts of property to the plaintiff, including a house in Paris, but the main provisions of the instrument were obviously intended for the benefit of the wife. The only provision of the instrument that is of any importance in the present controversy is the following:
"And the said James Phalen and Catherine S., his wife, do *192 further respectively covenant and agree that they will make no distinction between their children as regards the proportion of their estates coming to each under their respective wills; account, however, being taken of any advance which may have been made to either during the lifetime of their said parents, the amount of which advance is in all cases to be deducted from the share to which such child would otherwise have been entitled."
The theory of this action is that inasmuch as the testator left the plaintiff's equal share, not absolutely to him, but in trust as before stated, that the provision of the marriage settlement was violated, and hence conferred upon the plaintiff a right of action for specific performance. The complaint sets out the will and codicil and the other writing referred to, and demands judgment for the following relief: (1) That the trust under the seventh codicil in the fund held for the plaintiff be declared to be created in violation of plaintiff's rights under his contract, and the plaintiff is entitled to the principal of his said fund held by the United States Trust Company. (2) That the trust under the seventh codicil be abrogated, and that the remainders in said fund given by the seventh codicil to the heirs of the plaintiff be extinguished, and that the plaintiff's two sisters, Florence and Catherine, and all other persons who may ever be his heirs at law be barred therefrom, and that it be declared that the United States Trust Company holds that fund under the will as modified by the first six codicils, and (3) that the trust company be directed to turn over all of said fund with the increment thereto and the accumulation thereof to the plaintiff. There are some other statements and exceptions in the prayer, but they have no bearing upon the case. The trust company was the only defendant that appeared in the action and it demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer, but that judgment was reversed by the Appellate Division and the plaintiff has appealed to this court. *193
The first question that is naturally presented is the legal effect and nature of that provision of the ante-nuptial agreement which has already been quoted. It is impossible, I think, to classify it among any of the recognized methods for the devolution of property or the creation of any particular obligation. It is not a testamentary instrument of any kind, since it was not executed according to the laws that provide for the distribution of property to take effect after death. It was not a conveyance of any property whatever. It created no lien upon any of the testator's estate. It was neither an executed nor an executory contract. It will be seen that fourteen years had elapsed from the time that the marriage agreement was made until the testator executed the seventh codicil of his will, which it is claimed constituted a breach of contract and is clearly the sole reason for this action. If this theory of the case be correct it must follow that had the plaintiff, the son, developed in the meantime habits of extravagance or become otherwise improvident and incapable of taking care of a large estate, a contingency that actually happened, the testator had disabled himself from so changing his will as to make what might seem to him a proper disposition of the plaintiff's share under all the circumstances. It is argued that the testator, fourteen years before he executed the codicil, had so bound himself hand and foot that he was not at liberty to make what he thought to be a wise disposition of his property, simply because of his promise in the marriage agreement to make no distinction between his children. This proposition would seem to be so plainly contrary to good sense and to all our notions of law that the mere statement of it is sufficient to show its absurdity. Indeed, it is not attempted to sustain this action upon any principle of law or equity, or by arguments founded upon any rule of law or equity. What is claimed is simply this, that there are to be found among the adjudicated cases remarks to that effect by learned judges in the discussion of cases, but where, it will be seen, the question now before us was not involved. It is perfectly safe to say that in no case has it yet been decided that a man *194 who made a promise such as that contained in this case has disabled himself forever from making such a disposition of his property by will as seemed to him to be wise and judicious. A brief review of the cases cited in support of the complaint in this action will, I think, show that when they are fairly considered and analyzed they decide nothing that sustains the plaintiff in this case. The discussion in the opinions may be omitted. It will be sufficient to point out the questions that were actually involved and decided in the particular case.
The leading case cited and relied upon by the learned counsel for the plaintiff is that of Parsell v. Stryker (
Edison v. Parsons (
In Winne v. Winne (
Shakespeare v. Markham (10 Hun, 311) assumed the form of an accounting before the surrogate to recover from the estate of a deceased person a large sum of money claimed to be due the contestant for services rendered and for taking care and for supporting the testator in his old age under an expectation of receiving a legacy from him. The testator died without having made any testamentary provision in favor of the contestant. In the Surrogate's Court the claim was allowed, but the determination was subsequently reversed upon appeal and the reversal was affirmed in this court. (
Colby v. Colby (81 Hun, 221) was a case where there was a mutual promise of marriage between the parties, and the learned trial judge held that it was an authority in support of this action. It is stated in the case that the deceased made a proposition of marriage, which she accepted, and that thereupon an agreement in writing was made and subscribed by the parties, by the terms of which it was mutually agreed that the two should be presently married, and that the plaintiff should live with the defendant at his residence and be a faithful and loving wife to him as long as he should live, and if the plaintiff should survive him she should have the said premises as her own in fee simple absolute; and that in pursuance of the terms of said contract and in part performance of said agreement the said Colby executed and published his will in due form of law by which he devised to the plaintiff, her heirs and assigns forever, the whole of said premises, and he agreed that he would not revoke or alter the will. The marriage took place according to this agreement and the parties lived together *197
as husband and wife until the death of the husband on the 10th day of March, 1894. Now, here was an agreement in the nature of an ante-nuptial settlement between husband and wife, whereby the wife was to have in case she survived her husband certain specific real estate. It appeared that the husband, before his death, executed and published another and different will, whereby he undertook to revoke the one made prior to the marriage. It appeared that the widow was in possession of the premises, claiming to be the owner under the contract and demanded specific performance. It was held that she had a good cause of action, but it is obvious that the promise not to revoke the will had little, if anything, to do with her rights. The ante-nuptial agreement followed by the marriage, and the possession by the wife after her husband's death, gave her an equitable claim to the property which a court of equity would, of course, enforce. Suppose the husband had not revoked the will at all, but it had been set aside by reason of some defect in the execution or of undue influence or incapacity or other cause; this would not affect the rights of the wife in the slightest particular. She would still, in virtue of the marriage contract and the marriage and her possession, have good title in a court of equity. So that we see that the promise not to revoke the will was in legal effect wholly immaterial. The case furnishes no support for the present action. Other cases cited upon the brief of the plaintiff's counsel are equally wide of the mark. None of them decide anything that tends to sustain the plaintiff in this case. It is said, for instance, that the case of Johnston v. Spicer
(
On the other hand there are three or four quite recent cases in this court that seem to me to be squarely against the plaintiff's contention. In Gall v. Gall (64 Hun, 600) a deceased person had promised that if the plaintiff, then residing in California, would go to live with him in New York he would make a will in his favor. The deceased did make the will, but afterwards he married again and had issue. The action in that case, as in this, was for specific performance, and it was held that it could not be maintained, and that judgment was affirmed in this court. (
Mahaney v. Carr (
Ide v. Brown (
But perhaps the most conclusive argument and authority against the plaintiff's contention is to be found in the history of this very case. It seems that after the probate of the will and codicil the plaintiff filed a petition with the surrogate of New York to revoke the last codicil on the ground of fraud and undue influence.
The question of the validity of this codicil was tried at great length before the surrogate, and he held that the codicil was valid and dismissed the petition. On appeal to the Supreme Court the question was again fully argued and heard and that court unanimously affirmed the decree of the surrogate. An appeal was taken to this court and the decision of the courts below was unanimously affirmed on the opinion below. (Matter of Phalen,
47 N.Y.S.R. 44; affd.,
Passing from the question of the nature and validity of the promise in question, there are two other points that should be stated. If the promise set out in the complaint is a contract or binding obligation, it certainly must be supported by a sufficient consideration. It was a promise, in substance, that if the deceased made a will at all, it should be in a particular form, based upon the principle of equality between his children. Now, what consideration was there for the promise moving from the son to the father? It is said that marriage is a good consideration; and so it is between the parties, but it does not follow that it is a consideration for the promise of third parties. What did the son give the father that would constitute a consideration for the promise? Nothing whatever. It is true that he afterwards married, but his father never requested him to marry and he never promised his father that he would. That was the plaintiff's own voluntary act. Did the plaintiff suffer any detriment in consequence of his father's promise? Certainly not, unless we are prepared to hold that it is a detriment to a young man to marry, sufficient in the eye of the law to form a consideration for a promise on the part of another. I assume that that proposition will meet with no favor from any direction. The deceased secured no benefit, pecuniary or otherwise, from the promise on his part, and the question returns again, what was the consideration *201 moving from the son to the father that supports this promise which is called a contract? If the son had refused to marry and the father had sued him for specific performance, of course, such an action would be absurd, and yet a court of equity will not enforce a promise unless it is mutual. Both parties must be bound, and if both are not bound neither is bound. Consideration is the important element of a contract and must not be confounded with motive, which is not the same thing as consideration. The latter means something which is of value in the eye of the law moving from the plaintiff, either of benefit to the plaintiff or of detriment to the defendant. It is the price or matter of inducement to the contract, whether it be the compensation that is paid or the inconvenience that is suffered by the party from whom it proceeds. (Bouv. Law Dict. 401.) Chancellor KENT thus defined consideration: "There must be something given in exchange, something that is mutual or something which is an inducement to the contract, and it must be a thing which is lawful and competent in value to sustain the assumption." (2 Kent's Com. 464.) So that the promise in this case is not supported by any consideration, and hence the deceased had the right at any time before his death to make such a disposition by will of his property as he thought best.
This is an action in equity. The character of the action is stamped by the relief demanded, and that has already been stated. Unless the complaint states facts sufficient to invoke the jurisdiction of equity, then it does not contain a good cause of action. The rule in such cases is this, "in case a plaintiff has the right to maintain an action at law, or a suit in equity, and he elects to bring a suit in equity, demanding only equitable relief, but fails to state sufficient facts in his complaint to constitute an equitable cause of action, and the defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action, the demurrer will be sustained, though the facts alleged are sufficient to constitute a legal cause of action; and so, in case he elects to bring an action at law, demanding only legal relief, *202
but fails to state sufficient facts in his complaint to constitute a legal cause of action, and the defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action, the demurrer will be sustained, though the facts alleged are sufficient to constitute an equitable cause of action." (Wisner v. Consolidated Fruit JarCo.,
This must be the true rule in such cases, since by section 1207 of the Code, where the defendant does not answer, the plaintiff can have no judgment except that demanded in the complaint. The facts stated in the complaint in this case relate exclusively to the breach of an alleged contract between the plaintiff and his father. If, therefore, the plaintiff has any cause of action whatever, it is an action at law to recover damages for the breach. There are no facts stated that bring the case within the jurisdiction of any recognized department of equity. So that, in whatever aspect the case is considered, it must be held that the demurrer was well taken, and that the judgment should be affirmed, with costs.
CULLEN, Ch. J., WILLARD BARTLETT and HISCOCK, JJ., concur with WERNER, J.; O'BRIEN, J., reads dissenting opinion, and HAIGHT and VANN, JJ., concur in result thereof.
Ordered accordingly.