Hamilton v. Thirston
| Citation | 48 A. 709,93 Md. 213 |
| Parties | HAMILTON et al. v. THIRSTON. |
| Decision Date | 08 March 1901 |
| Court | Court of Appeals of Maryland |
Appeal from circuit court, Washington county; Edward Stake, Judge.
"To be officially reported."
Action by Calvin B. Thirston against William H.A. Hamilton and another, surviving administrators of the estate of John B Thirston, deceased. From a judgment in favor of plaintiff defendants appeal. Reversed.
Argued before McSHERRY, C.J., and FOWLER, PAGE, SCHMUCKER, and PEARCE, JJ.
Hy. Kyd Douglas and Wm. H.A. Hamilton, for appellants.
Alex. R. Hagner and M.L. Keedy, for appellee.
This is an action upon an alleged oral agreement by an uncle to devise a child's portion of his estate, consisting of real estate and personal property, to his nephew, if the latter would render certain services to him during the remainder of his life. The uncle failed to make a will, but died intestate, leaving surviving him one child and the issue of a deceased child. His estate consisted of several improved parcels of real estate and personal property, valued at over $38,000, after the payment of debts and expenses of administration. The appellee sued the administrators of the estate for damages for the breach by the intestate of the alleged oral contract to devise to him a child's portion of the estate, claiming that he was entitled to one-third of it, because that would be equal to the share of the surviving child of the intestate. There was no count in the declaration on a quantum meruit for the value of the services rendered by the appellee. The defendants demurred to the declaration and, their demurrer having been overruled, they pleaded (1) a denial of the making by their intestate of the contract sued on; and (2) plene administravit as to the greater portion of the estate. The verdict and judgment below were in favor of the appellee as plaintiff.
There was evidence tending to prove that John B. Thirston, the uncle, about ten years prior to his death, agreed with his nephew, the appellee, that, if the latter would stand by him and do for him whatever services he requested for the remainder of his life, he would at his death give a portion of his estate, equal to that of any of his children, to the appellee. There was also evidence tending to prove that the appellee entered into the agreement, and rendered various services to his uncle during the remainder of the latter's life. The absolute owner of property can undoubtedly make a valid contract, for a good and sufficient consideration, to execute a will giving a certain portion of his estate to another person. Wilks v. Burns, 60 Md. 70. Such contracts, however, like those for the sale of real or personal estate inter vivos, are, when orally made, within the operation of the statute of frauds, and their validity must be tested by its requirements. Semmes v. Worthington, 38 Md. 317; Mundorff v. Kilbourn, 4 Md. 459; Whitridge v. Parkhurst, 20 Md. 62. The law does not look with favor upon agreements of this character, and this court has declared in reference to them, in Mundorff v. Kilbourn, supra, that "the most stringent doctrines of the court should be applied in such cases, especially where the alleged agreement is not in writing, as a protection against speculating arrangements sought to be enforced as contracts after one of the parties is no longer here to explain the conduct imputed to him, and defend himself against charges of bad faith or fraud." The court has also given expression to similar views in like forcible terms in Semmes v. Worthington, 38 Md. 318, 319, and Williams v. Shipley, 67 Md. 382, 10 A. 144. The alleged contract in the case now before us is one of the kind passed upon in the cases to which we have referred, and it comes clearly within the operation of the statute of frauds. It is, in essence, a contract for the sale of real and personal estate. It matters not that the consideration was to be paid in services instead of money, for the statute will operate upon and affect the contract in the same manner whether the property is to be paid for "in money, services, or anything else." Wallace v. Long, 105 Ind. 562, 5 N.E. 666. As to the real estate to be devised, the contract before us is obviously within the fourth section of the statute, and, as it is an entire contract upon one and the same consideration, it must, under the settled rules of construction, be held void under the statute as to both classes of property covered by it. Browne, Frauds, § 140 et seq.; Pond v. Sheean, 132 Ill. 312, 23 N.E. 1018, 8 L.R.A. 414; Alexander v. Ghiselin, 5 Gill, 180; Cooke v. Tombs, 2 Anstr. 420; Dowling v. McKenney, 124 Mass. 478; Thayer v. Rock, 13 Wend. 53.
Being thus within the fourth section of the statute, this contract cannot be made the foundation of an action at law, and is not sufficient to sustain the present suit for damages for its breach. Lamborn v. Watson, 6 Har. & J. 255; Duvall v. Peach, 1 Gill, 181. Even if it were to be treated as severable, the part of the contract relating to personalty would be within the prohibition of the seventeenth section of the statute, as the value of the personalty claimed to be covered by it far exceeds $50.
Nor is the situation relieved by the part performance of the alleged contract, assuming the proof to establish that fact; for the authorities are clear that the doctrine of part performance is peculiar to chancery, and is not regarded at law to take a case out of the statute. Browne, Frauds, § 451 et seq.; Dugan v. Gittings, 3 Gill, 162; Adams v. Townsend, 1 Metc. (Mass.) 483; Dougherty v. Catlett, 129 Ill. 431, 21 N.E. 932. In Pond v. Sheean, supra, and Austin v. Davis, 128 Ind. 472, 26 N.E. 890, 12 L.R.A. 120, the very kind of part performance proven in the present case was held insufficient to take a parol agreement to devise property in consideration of the services out of the statute.
Even if this were a proceeding in equity for the specific performance of the alleged contract set out in the narr., it is extremely doubtful whether the evidence as to part performance appearing in the record would measure up to the standard set by the authorities. Lord Hardwicke said in Lacon v. Mertins 3 Atk. 4, that the act relied on as part performance "must be such an act done as appears to the court would not have been done unless on account of the agreement,"and this...
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