Boyle v. Dudley

• Decision Date: 07 May 1935
• Citation: 179 A. 11
• Parties: BOYLE v. DUDLEY.
• Court: New Hampshire Supreme Court

179 A. 11

BOYLE

v. DUDLEY.

Supreme Court of New Hampshire. Rockingham.

May 7, 1935.

Transferred from Superior Court, Rockingham County; James, Judge.

Action by Susie E. Boyle against Albertus T. Dudley, administrator of the estate of Sarah E. Lane Tasker, deceased. After a verdict for plaintiff, the case was transferred on exceptions by both parties.

Judgment for defendant on the second count, and new trial on the other two counts.

Case declaring upon assumpsit in three counts. The first count declared upon a promise of the defendant's testate, Sarah E. Lane Tasker, in consideration of services to be performed by the plaintiff, to make mutual wills, by virtue of which the plaintiff should have all of Mrs. Tasker's property at her decease. Performance was alleged by the plaintiff, and breach by reason of the fact that the deceased willed to the plaintiff chattels valued at only $5. The second count declared upon a promise of the deceased to compensate the plaintiff for her services by leaving everything to her. The third count was for services rendered. Trial by jury before James, J., who transferred the case on the plaintiff's exceptions to the granting of a nonsuit as to the first two counts, the defendant's exception to the denial of a motion for nonsuit as to the third count, the defendant's exception to the denial of a motion to set aside the verdict on the ground of prejudice and plain mistake of the jury, and the defendant's exceptions to arguments by counsel for the plaintiff. The facts appear in the opinion.

William H. Sleeper (by brief and orally), of Exeter, for plaintiff.

Arthur E. Sewall, of Portsmouth, Perley Gardner, of Exeter, and Oscar Neukom, of Portsmouth (Mr. Sewall, orally), for defendant.

PAGE, Justice.

Mrs. Boyle and Mrs. Tasker had been close friends for many years prior to the death of the latter in 1931. Both women were well advanced in years. Neither had any relative having a particular claim on her, except that Mrs. Boyle had a husband living in the State Hospital until 1934. From time to time, during the period, the two women were intimate; Mrs. Boyle helped Mrs. Tasker, whose right arm was of little use, to do her sewing, preserving, and other housework. She nursed her in one or more short illnesses, and on one occasion helped her move her effects from one house to another. She never lived with Mrs. Tasker, and never devoted all her time to her except for a few brief periods. During the last five months of Mrs. Tasker's life, the plaintiff claims to have performed no services for her, and there was possibly another period of some months, within six years of Mrs. Tasker's death, during which the plaintiff did nothing for her.

The facts that no mutual wills were produced at the trial, and that no witness claimed to have seen either, do not alone dispose of the question. Whether or not wills were made, the real inquiry is whether there was a valid contract to make them, or whether the deceased made a valid contract that the plaintiff should have all of her property if the plaintiff survived her. If such a contract were made, the assets in the hands of the defendant would be impressed with a trust in favor of the plaintiff. Although mutual wills are in fact made and one of the testators dies, having revoked his will, the survivor may subject the assets of the deceased to a trust in accordance with the revoked will only when it clearly appears that the mutual wills were the product of an irrevocable contract entered into by the makers.

The evidence required to establish such a contract has been described variously, but with essential uniformity. "The proofs must be clear and convincing. The contract may be found in an express promise, or inferred as a conclusion of fact from the circumstances surrounding the parties." Tooker v. Vreeland, 92 N. J. Eq. 340, 343, 112 A. 665, 666, cited in Knox v. Perkins, 86 N. H. 66, 70, 163 A. 497. "To attribute to a will the quality of irrevocability demands the most indisputable evidence of the agreement, which is relied upon to change its ambulatory nature, and presumptions will not and should not, in such cases, take the place of proof." Rolls v. Allen, 204 Cal. 604, 608, 269 P. 450, 452.

The evidence regarding a contract in the case at bar is limited to declarations made by the deceased to four witnesses. In substance, these were: (1) That she and the plaintiff had a mutual arrangement that the one who lived longest should have the other's property; (2) an unexecuted intention that what she had she would leave to the plaintiff, and what Mrs. Boyle had she would leave to her, "and so one of them would be taken care of—one would take care of the other * * * that is one would take care of the other while they were alive"; (3) that her will was made; "I am to look out for Susie as Susie is to look out for me if I am sick. I am to have what she has and * * * she is to have what I have"; that they had an agreement that Mrs. Boyle had left everything to her, and * * * "I have left everything to her"; (4) "we have made our wills and I have given all that I have to Susie and Susie has given all she has to me."

The first and fourth declarations do not furnish clear evidence of a contract to make irrevocable wills, though the fourth is evidence that mutual wills were made. The second and third declarations taken together might warrant the finding of a contract, in consideration of mutual care during their lives, that they would make irrevocable mutual wills, and the further finding that such wills were actually made as agreed. Whether or not they were later revoked, and the contract rescinded by mutual consent would be another question.

The issue as to a contract under the first count should have been submitted to the jury with proper instructions that they could not find for the plaintiff if the understanding was merely one of mutual desire and affection; that such a finding could be reached only if the parties intended and undertook to bind themselves and their estates irrevocably by agreeing upon a final disposition of their properties. Knox v. Perkins, 86 N. H. 66, 163 A. 497; Tooker v. Vreeland, 92 N. J. Eq. 340, 112 A. 665; Edson v. Parsons, 155 N. Y. 555, 564, 565, 567, 50 N. E. 265.

There was no evidence warranting the submission to the jury of issues under the second count.

The application of the statute of frauds to a parol contract to make wills is in some respects a matter of dispute. Pub. Laws, c. 327, § 2, prohibits the bringing of actions upon a contract that is not to be performed within one year. But since the promisor may die within a year leaving the contract fully performed, it is not within that clause. Page, Wills, § 94, n. 6; Davis v. Grimes (N. H.) 175 A. 238.

It is held, almost universally, that an agreement to devise real property is a contract for the sale of real estate, within the statute unless removed from its operation by part performance. When the alleged agreement was made, Mrs. Tasker's property was principally real estate; when she died, it was wholly personal. Since the application of the statute depends upon the nature of the property at the time fixed for performance (Turnipseed v. Sirrine, 57 S. C. 559, 576, 35 S. E. 757, 76 Am. St. Rep. 580), the question before us is whether the statute applies to agreements to bequeath personalty.

The cases have shown a marked tendency to assume that while the statute applies to a contract to will real estate, it does not apply to one to will personalty. Why the former should be regarded as a "contract for the sale of land" (Pub. Laws, c. 327, § 1), while the latter should be deemed not to be "a contract to sell * * * goods or choses in action" (Pub. Laws, c. 166, § 4, subd. 1), is difficult to perceive upon principle. Yet that assumption has been expressed by way of dictum again and again, and has been made the turning point of a few decisions.

This view was stated in Clements v. Marston, 52 N. H. 31, 39, which was cited with approval in Day v. Washburn, 76 N. H. 203, 205, 81 A. 474. In neither case was the point reasoned or supported by other authority. The point was dictum in the Clements Case, where the plaintiff made no claim whatever to recover upon the contract to make the will. The decisive question was whether the defendant had broken a promise to put the contract for a will into writing so as to excuse performance by the plaintiff and enable the latter to recover for services actually performed, or whether the plaintiff's own abandonment of the contract precluded him from any recovery for his services. The oral contract for a will included real estate as part compensation for the services proposed. Since that part of the contract to will was invalid because within the statute of frauds, a breach of a promise to reduce the contract to writing would excuse the plaintiff from the rendering of further services, and it would make no difference whether the part of the defendant's promise having to do with personalty was or was not within the statute of frauds. This situation was recognized by the court.

The case of Day v. Washburn, supra, in so far as it declares the same point as the Clements Case, also is to be regarded as dictum, for the trial court found that the written contract and the will executed at the same time were "the method by which the parties undertook to preserve or reduce to writing their [one] contract, and that...