100 N.J. Eq. 417 | N.J. Ct. of Ch. | 1927
The complainant is one of six children of the late Frederick and Rachel Welsh. The father left his estate to his widow and five children, the complainant being excluded. The bill alleges that the complainant had reasonable grounds for contesting his father's will; that he intended doing so, and that his mother promised and agreed that if he would not, and permitted it to be probated, she "would by a will, to be made to her, leave to complainant an additional share of her property, so that, in addition to what he would normally receive under the laws of descent and distribution as one of the heirs and next of kin of his said mother, complainant would receive an amount large enough to make up for his loss of the share of his father's estate which he would have received had his father died intestate," and that relying on the promise he refrained. The mother did not leave the *418 promised will, and the bill prays that it be decreed that the defendants hold in trust for the complainant their shares of, and interest in, the property, real and personal, whereof their mother died seized or possessed, or so much thereof as will be necessary to carry out the terms and provisions of their mother's agreement with the complainant, and that they be decreed to convey and pay over the same, or so much thereof as may be necessary to specifically carry out the terms and provisions of the agreement. The defendants are the five children and the administrator of the mother.
The complainant was permitted to testify, under objection, for the purposes of the record, of transactions and conversations with his mother, but his testimony is incompetent under section 4 of the Evidence act. Comp. Stat. p. 2218. There is testimony, however, by other witnesses that tends to establish the contract. The case made out by the bill, and, in a measure, supported by the proofs, is that of a promise, made upon a valuable consideration, to bequeath or/and devise property, generally, of the promisor's estate of a definite value, said to be $4,859.94, and is, in effect, a promise to pay a liquidated sum of money at the death of the promisor, and, by will, to order that it be paid out out of the promisor's estate. For the redress of a breach of such a promise the law courts furnish an adequate remedy in damages. Holcombe v. Griggs,
The case is not to be entertained upon a scintilla of jurisdiction which has sometimes moved equity to determine the issues made by the evidence, and decree relief purely legal, as in Van Horn v. Demarest,
The bill will be dismissed. *421