Et Ux. v. Eichells.

• Decision Date: 28 October 1948
• Docket Number: 158/506.
• Citation: 62 A.2d 499
• Parties: GALLOWAY et ux. v. EICHELLS.
• Court: New Jersey Superior Court

62 A.2d 499

GALLOWAY et ux.

v.EICHELLS.

158/506.

Superior Court of New JerseyChancery Division.

Oct. 28, 1948.

Syllabus by the Court

1. In an appropriate case, upon presentation of requisite proof, an oral agreement to make a will can be enforced by relief in the nature of specific performance. The real purpose of such a proceeding is to have the heirs, devisees, next-of-kin or personal representatives of the deceased promisor held as trustees of the property which the promisor had agreed to devise or bequeath, and to compel them to hold legal title thereto for the benefit of the promisee.

2. The promisor of an oral agreement to make a will may perform at any time during life; no breach can be assured during life; and equity has no power during the lifetime of the promisor to compel execution of a last will and testament. If promisor should die without leaving a valid will in accordance with the agreement, the contract would then be broken.

3. Relief may be afforded in the lifetime of the promisor when particular property is involved, and then a trust is imposed or fastened or a lien created or enforced upon that property.

4. An oral agreement to make a will may, however, be repudiated by the promisor during life, and in such instance recovery may be had at law upon quantum meruit for services rendered.

5. Here under the alleged agreement the defendant agreed to make and execute a will conveying her entire residuary estate to plaintiffs; it did not relate to any specific real or personal property. Held, that there was nothing in the promise that fastened it upon any particular property or anything that would permit equity to affix property to it; for the breach of this naked promise, relief, if any, must be sought at law.

6. While there has been a fusion of the Court of Chancery and some of the law courts into the Superior Court by the Constitutional Amendment of 1947, Article VI, N.J.S.A., there are chancery and law divisions in the Superior Court. Under Rule 3:40-2 governing Civil Practice provides ‘* * * If the primary right of the plaintiff is equitable or the principal relief sought is equitable, the action is to be brought in the Chancery Division, even though legal relief is demanded in addition to or as an alternative to equitable relief.’ Under Rule 3:40-3, an action may be transferred from one of the trial divisions to the other.

Suit by William C. Galloway and Kathleen Galloway, his wife, against M. Adelaide L. Eichells for specific performance of an oral agreement to execute a will, and for other relief. On defendant's motion to strike the original complaint.

Motion granted and added causes of action transferred to Law Division.

Ernest L. Quackenbush, of Newark, for plaintiffs.

William M. McConnell, of Newark, for defendant.

FREUND, Judge.

The plaintiffs in their original complaint sought specific performance by the defendant of an oral agreement to make and execute a will in which her entire residuary estate, with the exception of a legacy of $200 would be left to the plaintiffs; to enforce a trust upon a parcel of real estate, a residence owned by the defendant at No. 55 Kenwood Place, East Orange, New Jersey; and to restrain defendant from conveying, encumbering or otherwise disposing of said premises or in any way impairing the title thereto in derogation of the rights of the plaintiffs. The defendant moved to strike the complaint on two grounds, first, that plaintiffs have an adequate remedy at law, and, second, that the complaint was prematurely filed.

In substance, the complaint alleges that in 1941 plaintiff, William C. Galloway, an engineer, and his wife, Kathleen Galloway, a registered nurse and housewife, became intimate friends of the defendant and her husband, Herbert G. Eichells, since deceased. Defendant and her husband were not in robust health. Plaintiff, Kathleen Galloway, rendered nursing services and household assistance to defendant and her husband, and plaintiff, William C. Galloway, rendered assistance in business affairs. The relationship of the parties developed to such a point that they moved into one household and shared expenses. This situation continued until October, 1946, when plaintiffs were forced to move from the premises because of defendant's hostile attitude.

The core of the complaint is as follows: ‘3. * * * As a result of services thus rendered and agreed to be rendered in the future, on or prior to August 18, 1943, the said defendant and her said husband agreed that in consideration for such services rendered and to be rendered they would make and execute similar wills in which the entire residuary estate of the survivor of them, with the exception of a legacy of $200 to be made to Mrs. Eichell's sister, would be left to the complainants, upon condition that complainants make like wills bequeathing their estates to the defendant and her husband, with which such conditions these complainants have complied.’

The complainant further alleges that the defendant's husband died testate. By his will he gave his estate to his wife, the defendant, providing therein that if she had predeceased him, the residuary estate would have gone to plaintiffs, that although defendant executed a will similar in form to the will of her husband, plaintiffs are ‘informed and believe that the said defendant revoked the will so alleged to have been made by her and has executed a new will eliminating complainants from any provisions thereunder, and has also threatened to make sale of said Kenwood Place residence and to take permanent residence outside the State of New Jersey.’ Plaintiffs allege their willingness ‘to perform the undertakings on their part’ and that they are ‘prevented from performing by reason of the action and attitude of the defendant.’

The primary issue raised in the instant case is whether under the stated facts the remedy of specific performance of the alleged oral agreement is available and enforceable in the lifetime of the defendant promisor, and whether restraint against alienation by defendant of her property ought be imposed.

It is entirely settled that in an appropriate case upon presentation of the requisite proof...