26 Haw. 369 | Haw. | 1922
OPINION OF THE COURT BY
This is a bill in equity for the declaration of a trust in favor of the complainant concerning a tract of land, 300 acres in area, which is described by metes and bounds in the bill. The allegations are that the respondents are trustees under the will of one John T. Baker Avho died in September, 1921, and as such trustees hold the title to the said real estate as well as the title to eighty-four head of cattle, twenty-five horses, fifty turkeys, thirty chickens, one cream separator and household furniture, all of which were upon the '300-acre tract; that the said Baker during his lifetime and at the time of his death owned the real estate and the personal property just mentioned; that on or about August 30, 1914,'Baker “employed the complainant temporarily in the capacity of foreman of his said ranch for a period of three months, at the end of which time he expected to have engaged a permanent foreman, and haying done so would send the complainant, Avho was then about sixteen years old, to Honolulu to take a course of study in agriculture;” that at the end of the period of three months aforesaid, and on or about December 1, 1914, Baker told the complainant “that it would be better to give up the idea of taking the course in agriculture and to remain in the employ of him, the said John T. Baker, upon his said ranch and ⅜ * ⅜ that if the complainant would accept such employment without Avages he, the said John T. Baker, Avould furnish the complainant with food and clothing and furthermore would devise and bequeath
To this bill the respondents demurred on the following grounds: (1) that there is no equity in the bill; (2) that the bill does not state facts sufficient to constitute a cause of action in that it appears from the bill that the alleged promise or undertaking of Baker was not in writing;
The court below overruled the demurrer and allowed an interlocutory appeal to this court, which appeal was duly taken and perfected.
It is well settled that, generally speaking, an agreement to devise land to a particular person is valid and enforceable in a court of equity. Emery v. Darling, 50 Oh. St. 160, 166; Stellmacher v. Bruder, 95 N. W. 324, 325; Oswald v. Nehls, 233 Ill. 438, 443; Best v. Gralapp, 69 Neb. 811, 813. In strictness, in such cases, there can be no decree that the agreement be specifically performed, for the obvious reason that, the promisor being dead, a will cannot now be executed; but the court attains the same end by declaring that the promisor’s heirs, devisees or trustees, as the case may he, hold the property in trust for the promisee and by ordering the execution of such instruments as may be necessary to transfer the legal title to the promisee. Best v. Gralapp, supra; McCabe v. Healy, 138 Cal. 81, 84. The principles involved in a suit for the enforcement of an agreement to devise land and those involved in defense of such a suit are substantially the same as those which apply in the case of a contract to' convey land and in the defense of a suit to enforce such a contract. If the promise to devise is oral the same exceptions or apparent exceptions may be resorted to • by a complainant to take the case out of the statute of frauds. For example, if there is a memorandum or note in writing, such as the statute refers to, although not itself constituting the agreement sued upon, the agreement may be enforced; and so also if there has been part performance of the contract within the meaning of the familiar doc
In the case at bar the agreement was not in writing. It is claimed, however, by the complainant that the will made in May, 1921, constitutes a sufficient written memorandum or note of the agreement. In behalf of the respondents it is urged that the will does not constitute such a memorandum, first, because there is no reference therein to the agreement or to the terms thereof and, second, because the devise as found in the will is not of the same property which under the alleged agreement was promised to the complainant. It is unnecessary to pass upon this point because it clearly appears from the facts stated in the bill that there has been such a part performance of the agreement as will justify and require the grant of relief by a court of equity.
It appears from the bill that the complainant from December, 1914, until Baker’s death in September, 1921, —a period of nearly seven years—performed faithfully and satisfactorily to Baker all of the services which under the agreement he had undertaken to perform; that he received for such services no wages or other monetary compensation whatever but simply received from Baker his food and some clothing. More nearly complete performance by the promisee could not have been rendered. He did all that on his part was required under the terms of the contract. At this point the respondents say that the value of the services so rendered are readily ascertainable in terms of money and that therefore under one of- the doctrines of equity in such cases the complainant must be left to his remedy at law by an action for damages to be measured by the value of his services and cannot maintain a suit in equity. It has, indeed, often been held
In the case at bar the additional facts exist .that the complainant at the time of entering into the agreement was sixteen years of age and intended or desired to proceed, upon the completion of his three months’ preliminary term of employment under Baker, to a suitable institution of learning and there take a course of study in agriculture, thus better fitting himself for his life-work; that, induced by the promise of Baker to convey to him the ranch, the complainant confined himself to work on the ranch of such limited and special character as .is required or permitted by that occupation and thereby wholly surrendered and lost the opportunity to improve his mind and his capacity to take care of himself and of
It is claimed by the respondents that there can be no sufficient part performance unless there was in Baker’s lifetime a transfer of the possession of the property from the promisor to the promisee. We do not so understand the law. Transfer of possession does in many instances constitute part performance, but it is not essential thereto. Bryson v. McShane, 48 W. Va. 126, 130; Schoonover v. Schoonover, supra; Gladville v. McDole, supra, p. 42. Part performance may be found in other acts and circumstances. In the contract now under consideration it was contemplated that Baker would remain in possession until his death and any taking of possession by the complainant in his own right prior to Baker’s death would have been in contravention of the terms of the agreement.
The respondents’ contention that there is no allegation of any undertaking by Baker to bequeath to complainant the personal property enumerated in the bill of complaint cannot be sustained. The promise as alleged was to devise “his said ranch.” Ordinarily by the word “ranch” is understood not merely the land but also the cattle and other personalty upon it and used in connection with and as a part of the establishment. Other allegations of the bill sufficiently show that the personalty in question was a part of Baker’s ranch.
In the final analysis, in each suit for specific performance, or its equivalent, of contracts of this general nature a court of equity must use its discretion in determining whether upon all of the circumstances of the particular case the contract should or should not be specifically enforced. 25 E. O. L. 590. In the case at bar, under the circumstances, it is our judgment that the contract should be enforced.
The decree appealed from is therefore affirmed.
