Lead Opinion
delivered the opinion of this Court;
After a most careful consideration of the proceedings in this case, and of the authorities cited in the argument, a majority of this Court are of opinion that the order of the Circuit Court continuing the injunction, ought to be affirmed.
In the argument of the cause in this Court, the solicitors for Urn appellants pressed with much earnestness and ability the second point in their brief, which alleges that there was a contract or agreement between Mrs. Edwards and Mrs. Frisby, whereby the latter agreed in consideration of the devises made to her in the will of Mrs. Edwards,
It is unnecessary for us to go into an examination of the cases in winch such contracts, when clearly established by competent proof, have been enforced in equity; or to consider the effect of a performance of such contracts on the one part, ju taking them out of the operation of the Statute of Frauds. In this case the alleged contract is not proved. The only evidence on which it rests is the testimony of Mr. Eicaud, who does not prove any such binding agreement as this Court can enforce. His testimony shows that the will of Mrs. Edwards was made with the knowledge and assent of Mrs. Frisby, who declared her purpose of carrying out its provisions. The will itself is silent as to any such agreement; nor does it appear, that any intended provision in favour of John J. Frisby was defeated, or omitted from the will in. consequence of any contract or agreement of Mrs. Frisby.
It would be carrying the doctrine contended for farther than is warranted by any adjudged case, that wo have seen, to say that the conversations testified to by Mr. Ricaud, constitute a binding contract to charge the estate of Mrs. Frisby with a trust in favour of John J. Frisby, which deprived her of the right of election. It would be setting a dangerous precedent, and in direct violation of the plain provisions of the Statute of Frauds to admit parol evidence to establish such an agreement, unless it ho of the clearest and most satisfactory kind, and also, unless “the acts of part performance relied upon to take the case without the operation of the Statute of Frauds, 5e clear and definite, and,
A majority of this Court are of opinion, that in this case the alleged agreement has not been proved. It may be remarked, that in the answer of the appellants, no such agreement is alleged as binding upon Mrs. Erisby; but they treat the case as one in which Mrs. Erisby, after the death of her mother, Mrs. Edwards, had the right of election, either to take under her will.or under the will of James Edwards. On that ground the cause seems to have been presented to the consideration of the Court below. In the opinion of the Judge of the Circuit Court, he says: “It is admitted that this is a case for the application of the doctrine of election-."
A majority of this Court considered that the right of election existed in Mrs. Erisby, and therefore the decision of the present appeal must depend upon the principles governing that branch of the la^; and upon the proof in the record.
On this subject it is unnecessary for us to say more than that we concur in the views expressed in the opinion of the Judge of the Circuit Court, and upon the authorities cited by him, and for the reasons he assigns the order appealed from will be affirmed.
Dissenting Opinion
dissented, and filed the following opinion:
The learned Judge who decided this case below, considered it as a case of election merely. Contemplating it in that aspect, his conclusions are very forcibly drawn from his premises. In my judgment, it is not a case of that character alone, one, in which it was optional with Mrs. Erisby at the death of her mother or afterwards, to choose which of two estates she would take; but a contract, between the ancestor and heir, for the settlement of real estate in futuro, owned in part by each, founded upon valuable and meritorious considerations; an agreement, the part performance of which by her will, devising a large share of her
Cases of election are those in which the act of the party electing, as the word imports, ir, a matter of volition, depending upon the principio ‘‘qui sencit commodum, debit sen-tire ei onus.” “When a man takes upon him to devise what tie had no power over, «pon a supposition that his will will be acquiesced under, this Court compels the devisee if lie will take advantage of the will, to take entirely but not partially under it, as wan done in Noys & Mordcmni’s case; there being a tacit condition annexed to all devises of this nature, that the devisee do not disturb the disposition which the divisor hath made." Streatfield vs. Streatfield, Ld. Chr. Talbott. 1 Swans., 447, Lead. Cases in Equity, 288.
“A man shall not tafo a benefit under a will, and at the same time defeat the provisions of the instrument. If lie claim an interest under au instrument, lie must give full effect to it as far as lie is able to do so; he cannot fake what is devised to him, and at the same time what is devised to another, although but for tho will, it would be his; hence, he will he driven to his election to say which lie will take." Beall & McElfresh vs. Schley, 2 Gill, 181.
These are cases of pure election, resulting from the principle announced in the foregoing citations, that one can-
Where the obligation to elect or rather to acquiesce in the disposition made by the testator, results from promises oral or written, made upon valuable or meritorious consideration, the relation of the parties is materially, if not entirely, changed. The devispes are no longer voluntary as to each other, the promisor is bound to the promisee, or the cestui que use, and liable to all the remedies for relief applicable to the •circumstances of the case. If the agreement is evidenced in writing, or rests in parol, accompanied by part performance, it becomes the subject of a bill for specific performance. And one who would be entitled to such relief, if complainant, cannot be divested of his equities, as defendant. Contracts founded upon an equitable duty, such as would be enforced by a Court of Equity, or upon a moral obligation, which no Court of law or equity could enforce, or to do that which an honest man ought to do, or upon the waiver of a legal right, by the party entitled to it, are maintained by a sufficient consideration. State, use of Stevenson vs. Riegart, 1 Gill, 1.
Promises by a grand-parent to a stranger, for the benefit of a grand-child, are binding upon the grand-sire. 4 Md. Rep., 476, Ellicott vs. Peterson. Contracts between a parent and grand-parent, for the benefit of a grand-son, founded on valuable consideration, moving from the grandparent and enuring to the benefit of the parent and her other children, to the exclusion of the son, must be equally obligatory.
In equity what is agreed to be done, is considered as done. Haviug covenanted to abide by the will of her mother, and suffered her to die under that impression, the "locus penitentice” was gone. From the death of Mrs. Edwards, Mrs. Frisby’s occupation was that of tenant for life
' In cases of election, if the devisee on whom the duty of election devolves, renounces the will, and reclaims his property, the disappointed devisee has a right to compensation. Noyes vs. Mordaunt, White’s Equity Cases, 282, 283.
What compensation could the grand-son have here? The grand-mother’s estate was given to the mother for life, .with a power of appointment among other children, to the exclusion of the son'. Could the children entitled under this power he deprived of their provision, because of the fault of their mother, the tenant for life, if not, would the mother’s life estate compensate the devisee who wrns entitled to an estate in fee ? There being no means of compensation, it was not a case of election hut a case of equitable title to specific performance on the ground of part performance and irreparable injury, if not consummated.
The acts of Mrs. Frisby which, are supposed to be equivocal, are rendered consistent when viewed in this light. The joint deeds of mortgage of the 3rd September 1847, and 22nd April 1851, were recognitions by her of the reversionary interest of her son, in “Oxford” and lot No. 17, therein mortgaged. Under any other hypothesis, the son was made a party to a conveyance of property in which he had no interest at law or in equity, and the fee-simple depending upon her election, was in abeyance, to be determined by her election at some indefinite period. Can it be supposed Mrs. Frisby had the right to hold both properties during her life, and at the last moment, by her own act, or that of her creditors, renounce the will and reclaim her property ?
When tbe character of an act is in question, that construction which is most consistent with the obligations of the actor, is to he preferred, and equity cannot adopt one
The confirmatory leases dated 19th October 1857, and 6th May 1848, of Mrs. Frisby, are acts designed “solely for confirmation” (as- one of them expressly declares) of previous deeds, made by Mrs. Edwards and Mrs. Frisby, and are not to be extended by implication, into independent acts of ownership, conflicting with previous acts of recognition. John J. Frisby was not a party to them and cannot be prejudiced by them.
“If a party has once made an election, he is bound to abide by his determination, unless he can restore the property to its original situation.” Leonard vs. Cromendin, 1 Edwds., 206, 210. 1 Amer. L. Ca., 321.
Viewing the transaction as a compact or family settlement, it has all the requisites essential to its validity. It is reasonable, mutual, certain, fair and just, and based upon valuable and meritorious consideration. Bowie vs. Stoddart, 4 Md. Ch. Dec., 475. 5 Md. Rep., 18.
Mrs. Edwards was- possessed of a large real (and .pel’sonal) estate in fee, in her own right, as well as of a life estate in “Oxford” and lot No. 17, devised to her by her husband, with a reversion to Mrs. Frisby in fee. Mrs. Frisby had one son and several daughters. It was natural the grand-mother should desire to settle her mansion house or country seat, upon her only male descendant, and make liberal provision for him as the representative of the family. To accomplish this we may suppose, she had the understanding with her daughter as to the disposition of their property. In the words of the draughtsman, “the
The contract of settlement was binding between the parties from the time it became operative, which from the nature cf the instrument chosen to accomplish it, was the death of Mrs. Edwards; the first that died carried her part of the contract into execution. Dufour vs. Pereira, 1 Dick., 421. If the contract had been reduced to writing in any other form, it would have taken effect immediately. Had it been an ordinary contract of sale or exchange between the mother and daughter for the benefit of the son, for a similar consideration, no intermediate judgment against either would have been a lien on the land. Hampson vs. Edelin, 2 G. & J., 64. Repp vs. Repp, 12 G. & J., 341.
The complainants in this caso are simple contract creditors of Mrs. ¡frisby, who seek to disturb the family arrangement, made long; anterior to the claims; they do not charge any indebtedness on the part of the mother at the time of the settlement, or fraudulent intention in its inception or consummation. They roly upon the indebtedness of Mrs. Frisby at the time of makiug her will, in which she declares she had previously elected, as the legal obstacle to her malting an election which would prejudice her creditors.
The agreement between Mrs. Edwards and Mrs. Frisby,
The case of Johnson vs. Hubbell, 2 Stockton’s Ch. Rep., is one of the most recent, apposite and exhaustive decisions on this subject. All the leading elementary principles and judicial precedents are collected and reviewed by the Chancellor, and after establishing the ^general principle of enforcing agreements to make family settlements by will, he proceeds: “It is said that this agreement was in parol, and is therefore contrary to the Statute of Frauds; but although this'agreement was a mere parol one, if there was a part performance of it, of such a character, as upon the principles recognized and acted upon by this Court, will take a parol agreement out of the Statute, then there is nothing peculiar about an agreement of this kind, to exclude it from the operation of those principles.” * * * * “Agreements or family arrangements like this are favoured in a Court of Equity; marriage settlements and agreements for family arrangements with respect to property are viewed with favor by this Court. They ought to be respected and scrupulously carried out by the parties to them, and if they are not, a Court of Equity ought to enforce their execution.” pp. 338, 340.
Entertaining these views, I respectfully and reluctantly dissent from the opinion of the majority of my brothers sitting in this cause, affirming the decision below.
■Order affirmed with costs, and cause remanded.