Cook v. Hirschberg

• Decision Date: 06 August 1958
• Docket Number: Docket 25009.,No. 379,379
• Citation: 258 F.2d 56
• Parties: Alice H. COOK, Daniel A. Cook, and Eunice Cook Marshall, Plaintiffs-Appellants, v. William S. HIRSCHBERG, The Greenwich Trust Co., and Grace Hornby Philbrick, as Executors of the Estate of Joseph M. Philbrick, late of the Town of Greenwich, State of Connecticut, Deceased, and Grace Hornby Philbrick, Individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

258 F.2d 56 (1958)

Alice H. COOK, Daniel A. Cook, and Eunice Cook Marshall, Plaintiffs-Appellants, v. William S. HIRSCHBERG, The Greenwich Trust Co., and Grace Hornby Philbrick, as Executors of the Estate of Joseph M. Philbrick, late of the Town of Greenwich, State of Connecticut, Deceased, and Grace Hornby Philbrick, Individually, Defendants-Appellees.

No. 379, Docket 25009.

United States Court of Appeals Second Circuit.

Argued June 10, 1958.

Decided August 6, 1958.

Robert E. Nickerson, of Ivey, Barnum, O'Mara & Nickerson, Greenwich, Conn. (Robert C. Barnum, Jr., and Norman E. Davis, of Ivey, Barnum, O'Mara & Nickerson, Greenwich, Conn., on the brief), for plaintiffs-appellants.

C. Driscoll Grimes, of Hirschberg, Pettengill & Strong, Greenwich, Conn. (Jack Haldane Courage and John F. Lambert, of Hirschberg, Pettengill & Strong, Greenwich, Conn., on the brief), for defendants-appellees.

Before CLARK, Chief Judge, MOORE, Circuit Judge, and RYAN, District Judge.

CLARK, Chief Judge.

This is an appeal from Judge Smith's dismissal upon defendants' motion of a claim based upon an alleged oral contract between husband and wife for the making of mutual wills alleged to have been breached by the defendants' testator, the husband. The plaintiffs are a nephew and two nieces of Amelia B. C. Philbrick, first wife of Joseph M. Philbrick, to whom she was married apparently before 1911 and at least before her will of September 27, 1923, hereinafter discussed. She died on March 29, 1931, and under her will about $246,830.96 was distributed to Joseph, who on June 10, 1932, married Grace Hornby Philbrick, one of the defendants. Joseph died on September 16, 1955; and his will, of which the three defendants are executors, left the greater part of his estate to Grace. The complaint in its allegations of contract is extremely general and says only in its paragraph 9 that Amelia and Joseph at some unspecified time "entered into an agreement whereby each, in consideration of the promise of the other, promised to leave the other the principal part of his or her estate, the survivor of them to leave to the Plaintiffs herein no less than fifty (50%) per cent of the survivor's estate, excluding therefrom, however, certain lesser gifts as set forth in" Amelia's will of September 27, 1923, attached to the complaint as an exhibit, and Joseph's will of May 9, 1928, also attached as an exhibit. Also attached as exhibits to show the violation of the agreement were Joseph's last will of November 3, 1952, and codicil of February 8, 1954, which were probated. On the basis of these meager details the court was asked to grant specific performance of the alleged agreement.

The defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted and supported this by two affidavits. One of these by a title searcher showed that Amelia owned real estate in Greenwich from 1911 until her death in 1931 and that Joseph also owned real estate there from May 7, 1928, until 1936 and again from 1953 until his death. The other affidavit by an officer of The Greenwich Trust Company, a defendant executor, showed that the plaintiffs presented no claim to the executors within the six months' time limited by the Probate Court for the District of Greenwich for the presentation of claims against the estate. In their motion the defendants asserted several defenses: that the alleged contract was one not susceptible of enforcement by specific performance; that because the parties owned real estate the agreement did not satisfy the Statute of Frauds; and that the claim was barred for failure to present it in time. In a reasoned decision Judge Smith sustained the first two grounds, while rejecting the third.

We are quite clear that Judge Smith's decision was correct, although our approach is somewhat different. We agree with him as to the vagueness and indefiniteness of the contract; but at this stage of the case we are less confident than he of the defense of the Statute of Frauds, Conn.Gen.Stat. § 8293 (1949), and more confident than he of the defense based on the Connecticut Statute of Nonclaim, Conn.Gen.Stat. § 6990 (1949). Plaintiffs assert that the latter defense is no longer open to defendants, since they took no cross appeal. This is of course nonsense; appeals have to be taken from final judgments, not from judicial rationales. And court judgments may of course be supported by any sound judicial argumentation — or by none at all if they are correct legally. Judges have at least the solace of knowing that only judicial deeds — not judicial words — may constitute legal error.

Plaintiffs contend that, as against a motion to dismiss, the complaint should be liberally construed in favor of the pleader. But defendants' filing of affidavits with their motion essentially converted it into a motion for summary judgment, F.R. 12(b), and placed upon plaintiffs an obligation to disclose the merits of their case. Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469; William J. Kelly Co. v. RFC, 1 Cir., 172 F.2d 865; Clark, Code Pleading 566 (2d Ed. 1947). This obligation plaintiffs failed to fulfill.

Moreover, plaintiffs' case as revealed on the motion below evidences weaknesses which cannot be cured by mere presumptions in favor of sustaining a complaint. Plaintiffs admittedly have no writing to prove their contract, but depend upon oral admissions by the testator made apparently before some aged witnesses. As straw for the dubious bricks they are making, plaintiffs seek to rely on the two wills attached as exhibits to the complaint. Unfortunately these exhibits piece out the complaint's allegations only most superficially and doubtfully. Amelia's will of 1923 consists of eight articles, with specific gifts for various legatees, including the three plaintiffs, followed by a gift of the residue to Joseph; but if he die before her, then there are a further series of specific and trust gifts to various legatees, with the residue made subject to a trust, of which each of the plaintiffs is given a beneficial interest in a one-fifth part. Because of its complexity, the will does not readily fit into the simple framework of the contract set out in paragraph 9 of the complaint. And the problem becomes even more hopelessly involved when Joseph's later will is compared with Amelia's. Joseph's will — executed four and one half years after Amelia's — is offered by plaintiffs to show his awareness of and compliance with the alleged bargain. It does not. The will is a long document of eighteen major articles and many numbered or lettered subdivisions. It provides first that everything shall go to Amelia if she survives. If she does not, then there are many specific gifts and trusts to individuals or churches or other charities. Ultimately the residue is given in trust, divided into six parts, of which each of the three plaintiffs is given a beneficial interest in one part.

From this will alone it would be difficult to define or isolate the "certain lesser gifts" which by paragraph 9 of the complaint are to be deducted before the plaintiffs share in the survivor's estate. But the task of reconstruction becomes impossible, in view of the quite diverse scheme and plan and legatees of each, if an attempt be made to distill from the two wills a single mutual intent on the part of husband and wife. Indeed the very diversity quite negatives the existence of any such intent. The situation is not aided by contemplation of the series of events wherein it appears that Joseph married a second wife, with whom he lived for nearly a quarter century until he died, at which time he not unnaturally made her the principal object of his bounty. His last will, too, contains many specific bequests or trusts, including gifts of $5,000 each to the plaintiffs. There is certainly nothing unnatural or surprising in all this, and the attempts to spell out a meaningful contract seem impossible of success. Nor does any clear basis for a quantum meruit recovery appear, so indefinite is the plaintiffs' own conception of the contract upon which they rely to bring the Cook money back to their side of the family.

Hence we agree that there was no enforceable right here set forth. Were we wrong in this view, however, we should hesitate to rule against plaintiffs at this time on the issue of the Statute of Frauds. There are many precedents for part performance satisfying the statute where one party to an oral contract for mutual wills dies leaving to the other party that portion of the estate allegedly subject to the...