Busque v. Marcou

• Decision Date: 06 March 1952
• Citation: 86 A.2d 873,147 Me. 289
• Parties: , 30 A.L.R.2d 1411 BUSQUE v. MARCOU et al.
• Court: Maine Supreme Court

Page 873

86 A.2d 873

147 Me. 289, 30 A.L.R.2d 1411

BUSQUE v. MARCOU et al.

Supreme Judicial Court of Maine.

March 6, 1952.

James L. Boyle, Patricia Boyle Koons, Waterville, for plaintiff.

Dubord & Dubord, Waterville, for defendants.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MERRILL, Justice.

On report. The issues in this case may be stated briefly as follows. Aurelie Busque, the plaintiff, is the widow of Joseph Busque. Prior to their marriage, Joseph agreed with Aurelie that if she would marry him he would 'execute a last will and testament nominating her as his executor and providing that on his decease his will would bequeath and devise to her all the estate he owned at the time of his decease.' On the 21st day of June, 1943, Joseph made a will substantially complying with his agreement referring therein to Aurelie as his wife-to-be. Aurelie married him the next day. On April 17, 1946, Joseph, by a will of that date revoking all former wills, after a few small bequests, including one of articles of personalty to the defendant, Gaspard Busque, bequeathed and devised to Aurelie one undivided half of the residue of his estate, and to a brother and sister, the defendants, Alfred Busque and Laura Gosselin, the remainder thereof in different fractions.

The widow, Aurelie, brought a bill in equity against the executor and beneficiaries of the will claiming that the new will was a fraud upon her, and that the executor, heirs, devisees and legatees claiming any interest in real and personal property under the will of April 17th (the second will) held the same in trust for her. The defendants filed an answer with demurrer and plea inserted therein. The plaintiff filed replications to the demurrer and to the plea.

The case came on for hearing before a Justice of the Supreme Judicial Court, sitting in equity, upon bill, demurrer, plea, answer and replications thereto. By agreement of the parties it was referred by the Justice to this Court on 'the original bill with attached exhibits, the demurrer and plea filed by the defendants and the replications to the demurrer and to the plea filed by the plaintiff, with the stipulations that if the demurrer is overruled and the plea is overruled, the bill may be sustained and decree entered below in accordance with the prayers contained in the bill, otherwise such order to issue by the Law Court as the pleadings in the case may require.'

The plea alleged: 'That neither the contract which is set forth in the Plaintiff's Bill and which she thereby seeks to enforce, nor any memorandum or note thereof was ever reduced to writing or signed by the party to be charged therewith or any person thereunto lawfully authorized within the meaning of Paragraphs III and VII of Section 1, Chapter 106, Revised Statutes 1944, State of Maine, for the prevention of frauds and perjuries.'

To this plea the plaintiff filed the following replication: 'The plaintiff, in answer to defendants' plea in bar, that no memorandum or note was ever reduced to writing or signed by the party to be charged therewith, admits that there was no note or memorandum thereon given by Joseph Busque to the said Aurelie Busque, other than the will executed in favor of Aurelie Busque by Joseph Busque dated June 21, 1943, which appears as 'Exhibit A' as part of the original bill and thereto the plaintiff replies that (a) said will appearing as described in the bill followed by the marriage of the parties and by plaintiff otherwise complying with her promise as alleged made a completed transaction not within the Statute of Frauds, and (b) that the Statute of Frauds does not and never was intended to apply in a case based on facts as described in plaintiff's bill, and (c) that in pleading the Statute of Frauds in such a case based on marriage, the pleading of such statute and the invocation thereof in such a case in equity as described in plaintiff's bill would allow said statute to shield a fraud.'

R.S., c. 106, § 1, as amended by P.L.1947, c. 185, reads in part as follows:

'No action shall be maintained in any of the following cases: * * *

'III. To charge any person upon an agreement made in consideration of marriage; * * *

'VII. Upon any agreement to give, bequeath or devise by will to another, any property, real, personal or mixed; * * *

'unless the promise, contract or agreement on which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto lawfully authorized; but the consideration thereof need not be expressed therein, and may be proved otherwise.'

These same provisions of the statute were in effect at the time of the making of the alleged contract and the marriage.

The contract which is the foundation of the plaintiff's claim was an oral one. It was not only a contract to give, bequeath and devise property to another but it was also an agreement made in consideration of marriage. Either of these factors is sufficient to require as a condition to enforcibility by action that the contract or agreement or some memorandum or note thereof be in writing and signed by the party to be charged therewith in accord with the foregoing provisions of the statute of frauds.

The plaintiff claims, however, that the will executed by the testator prior to the marriage and subsequent to the agreement constitutes a sufficient note or memorandum to satisfy the requirement of the statute of frauds and to remove the bar of paragraphs III and VII thereof. This will does not have such effect. It neither refers to nor does it even intimate the existence of the agreement to make or execute the will. There is nothing in the will from which either the existence of the agreement to execute the will or the terms of such an agreement can be inferred. Without passing upon the question of whether a will may be so drawn as to constitute a note or memorandum of a contract as required by paragraphs III and VII of the statute of frauds, the will here under consideration is neither a note or memorandum of the agreement sufficient to satisfy the requirements of the statute. This is true whether one is considering either paragraph III or paragraph VII supra.

This Court has not been called upon to determine under what circumstances, if any, a will executed in pursuance of a contract to make a will in consideration of marriage will satisfy the foregoing requirements of the statute of frauds and constitute a memorandum or note of the contract.

General principles as to the requirements of a sufficient memorandum under the statute of frauds have been enunciated by this Court and are conclusive against giving such effect to the particular will here in question. We held in O'Donnell v. Leeman, 43 Me. 158 that the memorandum must show within itself or by reference to some other paper all the material conditions of the contract. We further held in Jenness v. Mount Hope Iron Company, 53 Me. 20 that the memorandum must establish the contract plainly in all its terms or it will not be sufficient; and that it can receive no aid from parol evidence. To the same effect is Williams v. Robinson, 73 Me. 186, especially at page 195, and Kingsley v. Siebrecht, 92 Me. 23, at page 27, 42 A. 249.

These same principles are recognized and enunciated in 49 Am.Jur. Page 636, § 322, where it is said: 'A memorandum sufficient to satisfy the requirement of the statute of frauds must be complete in itself as to the parties charged with liability thereunder and the essential terms of the contract. The memorandum cannot rest partly in writing and party in parol; that is to say, a deficiency in the memorandum cannot be supplied by parol evidence.'

The application of the foregoing principles to the will here in question, which is a simple devise and bequest of property to the plaintiff making no reference to any agreement between the parties with respect to the execution of the will or that the same is made in pursuance of any agreement whatever clearly demonstrates that this will is not a sufficient note or memorandum to satisfy the requirements of the statute of frauds, with respect to the contract here under consideration. Brought v. Howard, 30 Ariz. 522, 249 P. 76, 48 A.L.R. 1347, is a case directly in point.

Other cases hold that a will which fails to refer to or show a connection with the agreement or bargain in question is an insufficient memorandum under the statute of frauds. Baker v. Bouchard, 122 Cal.App. 708, 10 P.2d 468; Holsz v. Stephen, 362 Ill. 527, 200 N.E. 601, 106 A.L.R. 737; Gibson v. Crawford, 247 Ky. 228, 56 S.W.2d 985; Southern v. Kittredge, 85 N.H. 307, 158 A. 132; Hathaway v. Jones, 48 Ohio App. 447, 194 N.E. 37; White v. McKnight, 146 S.C. 59, 143 S.E. 552, 59 A.L.R. 1297; Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147, 149; Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010. To multiply authorities would serve no useful purpose. As was well said by the Arizona court in Brought v. Howard, supra [30 Ariz. 522, 249 P. 80.]: 'A. potential factor in furtherance of fraud would be engendered were a will containing a simple bequest permitted to operate as evidence of a binding contract to make such a bequest. It must therefore be held that there is no written memorandum of the agreement here in suit.'

It must be remembered that in this case the defendants have invoked not only one but two separate and distinct provisions of the statute of frauds, to wit, paragraphs III and VII supra. Each and both of these provisions of the statute are applicable to the contract here in question.

While it is true that equity will under some circumstances grant relief to one who has fully or partially performed a contract which is unenforcible because it does not comply with the requirements of the statute of frauds, it does so only upon certain well recognized and established equitable principles. Relief because of...