Grant v. Grant

• Decision Date: 13 December 1893
• Citation: 29 A. 15,63 Conn. 530
• Parties: GRANT v. GRANT.
• Court: Connecticut Supreme Court

29 A. 15

63 Conn. 530

GRANT

v. GRANT.

Supreme Court of Errors of Connecticut.

Dec. 13, 1893.

Case reserved from superior court, Litchfield county.

Action by Christina Grant against Catharine Grant, administratrix of William Grant, deceased, for specific performance of a parol agreement, or, in case that be not granted, for $5,000 damages. The report of the committee appointed to find the facts was accepted by the superior court, which found the facts therein to be true, and reserved the case. Judgment for defendant.

Webster & O'Neill, for plaintiff. Gideon H. Welch, for defendant.

FENN, J. The plaintiff, now 23 years of age, when about 4, went to reside with William Grant, of Torrington, and his wife, in consequence of a verbal promise made by Mr. Grant to her parents that, if they would let him adopt the child as his own, he would take her with him to his home, and as he and his wife had no children of their own, they would educate and maintain her; that he had some property, and when he died the child should have it what there was left of it, just the same as if she were his own daughter. Immediately after she went to reside in the family Mr. Grant and his wife commenced calling her "Tiny Grant," by which name she has ever since continued to be known and called. Mr. and Mrs. Grant were always kind and affectionate towards her, treated her as their own daughter, clothed, maintained, and educated her in the district school of the town, and did everything for her which kind and affectionate parents could or would do for their own daughter. On the other hand, she was kind and affectionate towards them, and did everything for them which a kind and affectionate daughter could or would do for her parents. After she arrived at a suitable age, she assisted Mrs. Grant about the house, washed the dishes, made the beds, did sweeping and house cleaning, according to her years, and ran errands as required. This she continued to do down to the date of Mr. Grant's death. On three or four occasions he was sick, and suffered on each of these occasions for several weeks. On these occasions she waited upon him, nursed and cared for him, and he refused to let any one else attend upon him. He stated to her that she would be well rewarded for what she had done for him and for his wife. "You remain with us, Tiny," said he, "and after I am gone you will be well provided for; what V have left shall belong to you." These remarks and others like them, he made a great many times to the plaintiff, to his wife, and to a number of his neighbors. In consequence of these promises made to her parents and to herself, the plaintiff was induced to remain with Mr. and Mrs. Grant as she did. Mr. Grant died March 4, 1893, leaving no children of his own, but a wife and sister survived him. He died intestate, having never adopted the plaintiff in accordance with the laws of this state. She had never requested such adoption, because she did not know or understand that any legal formalities were required, and expected that Mr. Grant would make the promised provision for her by will. His property at the time of his death consisted of a little over $12,000 in all, of which about $1,200 was real estate. The above facts, found by a committee, are, though in greater detail, in substantial accordance with and affirmance of the allegations of the plaintiff's complaint against Mrs. Grant (the widow), and as administratrix of the decedent's estate. Upon such recited facts, the claim of the plaintiff, as quoted from the brief in her behalf, was: "If William Grant had made a will, devising and bequeathing all of his estate to this plaintiff, his widow would first be entitled to one half of the personal property, and to the use of one-third of the real estate," The plaintiff asks for a decree that the other half of the personal property shall be paid over to her, and that the title to the real estate, subject to the widow's dower, shall be vested in her, or that a decree will be passed giving her an equivalent for these. The committee, in addition to the facts above recited, also made the following finding: "The plaintiff also asks me to find the value of her services to Mr. Grant while she remained in his family, for the purpose of obtaining judgment for the amount, in case she is not entitled to the equitable relief prayed for. On this subject I find it impossible to place a pecuniary value on the plaintiff's affection and tenderness for Mr. and Mrs. Grant. I find, however, that for the seven years next preceding Mr. Grant's death, on March 4, 1893, her services to Mr. Grant were and are reasonably worth, as a mere servant, $12 per month, and that interest should be computed thereon, if the above facts will authorize it; and, if it is legally and equitably right so to do, I find that this interest ought to be compounded annually."

From the foregoing statement it is manifest that the reservation of this case for advice, made by the superior court, presents for our consideration two questions: (1) Is the plaintiff, upon the facts found, entitled to the specific equitable relief prayed for? and (2) if not, is she entitled to recover damages in this action and upon this complaint? It seems to us that there are conclusive reasons why specific performance, as prayed for, cannot be granted. The alleged contract was wholly by parol, the consideration indivisible; it provided, in effect, that the plaintiff, upon the death of the defendant's intestate, should succeed to a child's share in all the property of said intestate, and that such property at his death consisted of real as well as personal estate. The contract, therefore, was entire. It applied equally to every part of the estate. It concerned an interest in lands, and was within the statute of frauds. Shahan v. Swan, 48 Ohio St. 25, 26 N. E. 222; Donahue's Appeal from Com'rs, 62 Conn. 370, 372, 26 Atl. 399; Meyers v. Schemp, 67 Ill. 469; Pond v. Sheean, 132 Ill. 312, 323, 23 N. E. 1918; Clark v. Davidson, 53 Wis. 317, 10 N. W. 384; Ellis v. Cary, 74 Wis. 176, 42 N. W. 252; Gould v. Mansfield, 103 Mass. 408. In some of the cases above cited the alleged agreement or promise expressly called for succession to both real and personal property, and in one of them it appeared that real property was owned at the date of the contract in other cases the promise did not so expressly embrace both, but was in general language, as in the case before us; nor did it appear whether any real estate was owned at the date of the contract. Neither such express language nor such ownership has, however, by any of the courts been regarded as a controlling consideration, nor ought it to be. The mischief which the statute was intended to remedy— the setting up parol land titles—would occur equally in either case. And in every case in which the effect of the contract, if capable of enforcement, would be a transfer of land, and therefore in every case where such a result might at the time the contract was made have been contemplated as its possible effect and afterwards found to be its necessary one, if the contract is enforced, such contract falls within the operation of the statute. But the plaintiff, in the brief presented in her behalf, conceding that the oral contract was within the provisions of the statute of frauds, contends that the finding shows such performance upon her part as relieves the case from the operation of the statute. The adjudications upon the subject of what constitutes sufficient part performance of an oral contract to take it out of the statute are almost numberless. Though not in harmony, they appear to support one or the other of two rules; the stricter requiring the acts of part performance to be referable to the contract set up, and to no other one, and the more liberal holding the acts sufficient if they are such as clearly refer to some contract in relation to the subject-matter in dispute, the terms of which may then be established by parol. We have had occasion very recently to fully examine the subject, and have adopted the latter and more liberal rule. Andrew v. Babcock, 63 Conn. 109, 122, 26 Atl. 715. But, applying the rule, do the acts stated clearly indicate a contract in relation to the subject-matter in dispute? We think not. On this point we cannot do better than to quote and adopt the language of the court in the case, before cited, of Shahan v. Swan, 48 Ohio St 39, 26 N. E. 222, where, in reference to very similar facts, the court said: "Acts of this character are not usually the offspring of contractual relations. Would the ordinary observer infer from them any contract whatever? Would they not, rather, be attributed to higher motives? * * * Whether these acts of alleged part performance be taken singly or collectively, they do not indicate that they were done in performance of any contract or agreement respecting property rights of any kind, but rather were manifestations of a benevolent and affectionate disposition on the part of a childless couple towards a gentle and affectionate child whose fate was placed in their keeping." So, also, in the case of Pond v. Sheean, supra, a person, having no children of his own, took an infant daughter of a relative of his wife to raise as a member of his family, and promised orally, with his wife's consent, that, if the child's father would permit her to become a member of his family and assume the name of her adopter, he would, on his death and that of his wife, give the child all the property he might own. The contract was fully performed by the child and her father. But the court held that a court of equity could not decree a specific performance of the parol agreement, saying that the case was clearly within the statute of frauds; that the contract was entire, and, the plaintiff having never been put into possession of the real estate, the acts of part performance were not sufficient to relieve the case from the statute. So, also, in the...