127 Misc. 387 | N.Y. Sup. Ct. | 1926
Erwin C. Fralick died October 24, 1924. No will made by him has been discovered, and it is, therefore, assumed that he died intestate. At the time of his death he held title to the premises described in the complaint and known as 529 Burnet avenue, in the city of Syracuse, N. Y., worth about $4,500, subject to a mortgage of $1,100. He also owned certain other property, of the value of about $7,500. He left him surviving no wife, no children, but a half-brother, Ogden Fralick, of Phoenix, N. Y., and a half-sister, Pernina Tappan, of Detroit, Mich. Said Pernina Tappan died intestate on or about the 2d day of June, 1925, leaving her surviving her children and only heirs at law, the defendants Homer C. Tappan, Nina T. Antis and Lena F. Hunton. The defendant Homer C. Tappan has been duly appointed administrator of the estate of said Pernina Tappan, deceased. Said Ogden Fralick died on or about the 1st day of May, 1925, leaving a last Will and testament, duly admitted to probate, whereby he devised and bequeathed his entire estate to the defendant Oland W. Finney and letters testatmentary upon said will have been issued to said Oland. W. Finney.
Mr. Fralick had been a widower since 1906. When his wife died he went to live with the plaintiff and her husband at 419 Hawley avenue, Syracuse, N. Y., where he lived until 1911, when he purchased the premises in question, and with the said Salems moved
It is the contention of the plaintiff that on an occasion in the early part of June, 1915, in the presence of the said Ogden Fralick, William Dietrich, Jacob Dietrich and of this plaintiff, at a time when Mr. Fralick was about to leave on a trip to California, the contract in question, which Was entirely oral, was made, whereby, in consideration of the agreement on the part of Mrs. Salem to board and care for him so long as he should live, he agreed to devise the premises in question to Mrs. Salem. The contract itself was évidenced by the testimony of two disinterested witnesses; was definite as to the parties to it and as to the consideration; both parties to it fully understood its terms; it related to a specific piece of real estate. Mrs. Salem occupied the whole house, excepting the one room set apart for and occupied by Mr. Fralick. She also kept another boarder. After making the contract, Mr. Fralick ceased to pay any board, and for nine years and up to the time of his death was boarded, cared for and nursed by Mrs. Salem during his frequent illnesses. Mrs. Salem paid for repairs and improvements to the property — not large sums, but considerable. Mr. Fralick paid the taxes and the interest on the mortgage up to the time of his death.
A considerable number of wholly disinterested witnesses testified to statements or declarations by Mr. Fralick after the contract, to the effect that the property in question was, or was to be, the property of Mrs. Salem. The contract Was fully performed by Mrs. Salem. Mr. Fralick had more than mere board and lodging. He had care. He was nursed in sickness. He had a home. When he made the contract he knew what he was to receive, and the plaintiff was faithful to her promise to the end. Mr. Fralick lived with and was cared for by the Salems for eighteen years. On account of the length of time (nine years) which Mr. Fralick lived after the agreement, and the constant care and attention he received from Mrs. Salem, it is doubtful if the value of the property in question is adequate compensation ur the services rendered him by her. It is evident Mr. Fralick was very happy in the home made for him by the Salems.
The balance of Mr. Fralick’s property, amounting to about $7,500, went to his half-sister and half-brother, with whom he was
Agreements to devise real property by will have long been enforced in this State, and in case of failure to perform the agreement specific performance has been decreed. (Lobdell v. Lobdell, 36 N. Y. 327; Parsell v. Stryker, 41 id. 480; Freeman v. Freeman, 43 id. 34; Winne v. Winne, 166 id. 263; Taylor v. Higgs, 202 id. 65; McKeon v. Van Slyck, 223 id. 392.) And it has been the policy of courts of equity, in the exercise of sound judicial 'discretion, to sustain such agreements, although oral, where the agreement itself was clear, definite and certain, and the circumstances called for the exercise of equitable - discretion, and no public policy was contravened. (Lobdell v. Lobdell, supra; Freeman v. Freeman, supra; Winne v. Winne, supra; Taylor v. Higgs, supra; McKeon v. Van Slyck, supra; Matthews v. Matthews, 62 Hun, 110.)
Cases in which oral agreements of this character have not, been enforced are largely those where there has been a failure in the proof of the contract itself, or where it has been evidenced by proof which indicated, not a contract, but declarations of intention on the part of a decedent. In Gall v. Gall (64 Hun, 600; affd., 138 N. Y. 675) the contract was not established with reasonable certainty. The proof rested entirely upon the declarations of intention on the part of the decedent, and some of these declarations were not in the nature of a present bargain.. Many of them were mere declarations of intention. The court said: “It is quite uncertain from this testimony what precise agreement, if any, was ever made between the plaintiff and the decedent. If there was any actual agreement between them, it is impossible to say whether the consideration therefor was the change of name, or the care which was to be given to the decedent, or the sacrifice of the California business. Then, too, if an actual agreement on the decedent’s part is to be inferred' from these declarations, such agreement was uncertain. There was a reservation of the right to make some legacies; and the complaint charges an undertaking i to 'leave the remainder of his estate, both real and personal,’ to the plaintiff. No specific property, it will be observed, but whatever he might happen to have at the time of his death, without even a general statement as to its
In Hamlin v. Stevens (177 N. Y. 39) a case in which there Was no sufficient evidence justifying a conviction that any contract as claimed by the plaintiff had ever been entered into, the court very properly set up a warning against sustaining such contracts where they were not completely and definitely proved, as follows (p. 47): “ Contracts of the character in question have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them, and in enforcing them, when established, by specific performance. Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises. They are the natural resort of unscrupulous persons who wish to despoil the estates of decedents. * * * While such contracts are sometimes enforced by the courts, it is only when they have been established by evidence so strong and clear as to leave no doubt, and when the result of enforcing them would not be inequitable or unjust
In Winne v. Winne (166 N. Y. 263, 272) the court said: “ In cases of this character, where it appears for any reason that the enforcement of an agreement would be unfair, inequitable or unjust, the remedy should be denied. Each case must be governed by its own facts and circumstances, and unless the proof discloses a situation where good conscience and natural justice require the enforcement of the agreement, this relief should not be awarded. * * * 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 the granting or denial of such relief always rests in the sound discretion of the court, and should be denied unless the agreement is fair and just .and its enforcement equitable.”
In McKeon v. Van Slyck (223 N. Y. 392), where the agreement claimed to have been made Was oral and to the effect that, if the plaintiff Would provide the decedent permanently with a room in her home, and board him and take care of him when he came to the city, he would leave her by bis will $25,000, the question considered by the court was as to whether or not the trial justice, in charging the jury, had made an error in his statement of the law when he said that “ claims of this kind are looked upon by the
The proofs in the instant case meet the tests, and “ good conscience and natural justice ” require the enforcement of this contract. In the light of the foregoing, the recent decision of the Court of Appeals in Burns v. McCormick (233 N. Y. 230) requires careful consideration. There, the decedent, so it is said, told the plaintiffs that, if they gave up their home and business in Andover, N. Y., and boarded and cared for decedent during his life, his house and lot, with its furniture and equipment, Would be theirs upon his death. They did as he asked, selling out an interest in a little business in Andover and boarding and tending him until he died, about five months after their coming. The defense was the Statute of Frauds.
In the light of the long course of decisions in this State in cases where the discretion of a court of equity has been exercised through a decree of specific performance of an oral contract to devise real estate, and in the light of which, of course, the opinion in this case must be read, it cannot have been the purpose of the decision of the Court of Appeals in this case to deny the exercise of equitable discretion in a case where, in the circumstances, good conscience and natural justice call for enforcement of a contract definitely proved.
The questions in the instant case are: Was there a contract? Was there an adequate consideration? Was there performance? Are there any circumstances which raise the occasion for a refusal to exercise equitable discretion? The decision in Burns v. McCormick was not intended to set up a standard, the effect of which would be to destroy the exercise of equitable power in contravention of the express provision of said article 8, section 270, of the Real Property Law, which reads: “ Nothing contained in this article abridges.the powers of courts of equity to compel the specific performance of agreements in cases of part performance.”
In Flanagan v. Flanagan (209 App. Div. 190) the defendant was induced to live with her mother, and reside with her and care for
In the instant case the consideration was performance on the part of the plaintiff of her part of the contract. But it is said that " not every act of part performance will move a court of equity.” That is of course true, unless the performance was the consideration of the contract. It is also said that " there must be performance ‘ unequivocally referable to the agreement.’ ” This would bear rather upon the evidence of the existence of the contract than upon the question of the fulfillment of it. Let there once be established a contract which contravenes no sound public policy, which is not unconscionable, which appeals to the conscience of the court and accords with natural justice, the proposition that the performance must be " unequivocally referable to the agreement ” becomes of no moment (except as bearing upon the existence of the contract), unless We are prepared to wipe out the doctrine of consideration as being of the essence of a contract. If the intent is where the contract is not shown by competent evidence, clear and convincing, that the mere fact of the performance may not be taken as evidence of the contract unless it is unequivocally referable to the agreement, then the language of the court becomes consonant with the course of the decisions rendered upon this subject.
In Woolley v. Stewart (222 N. Y. 347), referring to oral agreements affecting real estate, after saying that “ the breach of a void agreement is not a fraud or a wrong in law,” the court says that a party “ may, however, withdraw himself from the policy and defense of the statute, or waive its protection, by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and
That case was cited with approval in Burns v. McCormick and throws light upon the interpretation to be placed upon the expressions made therein.
In the instant case, every act of performance Was referable unequivocally to the contract, once the contract, independent of the performance, is established. The agreement was that Mr. Fralick, in the event that plaintiff Would care for him during his life, would devise a specific piece of property to her by will. It is true that the contract was executory. All such contracts are. The title to the property was to be transferred by will, but the contract was no less binding, and once established according to the standards, excepting for the limitation of the Statute of Frauds as to transfers of real estate, it became as enforcible as if made in Writing. The plaintiff was under no obligation to repair this property, or to pay the taxes, or to pay the interest on the mortgage. The property did not belong to her, and would not until she had fully performed her part of the contract, and such performance could not be complete until the death of Mr. Fralick. There are, however, here evidences, taking literally the language used in Burns v. McCormick (supra), which are unequivocally referable to the contract. Mrs. Salem treated this property as her own in some respects. She made repairs upon it out of her own money. She had possession of the whole house, excepting one room. She kept a boarder. While these Would not be evidence of delivery of possession of the property, they are important circumstances, Which are incapable of interpretation, excepting on the basis that the contract existed. Furthermore, after the contract was made, Mr. Fralick ceased to pay board to her, as he had been doing for the nine years previous.
We are not prepared in this State to abolish equitable considerations, and to resort no longer to that great wealth of learning as
The plaintiff is entitled to a decree directing the specific performance of the contract, as prayed for in the complaint, and will prepare proper findings of fact and conclusions of law, to be settled, if not agreed to, upon two days’ notice.
Decreed accordingly.