Lynam v. Harvey
| Decision Date | 04 October 1919 |
| Citation | 108 A. 850,12 Del.Ch. 129 |
| Court | Court of Chancery of Delaware |
| Parties | WILLIAM T. LYNAM, Executor of the Last Will and Testament of Jesse Chandler, deceased, v. SAMUEL M. HARVEY, AND OTHERS |
BILL BY AN EXECUTOR FOR INSTRUCTIONS, and to have the residuary legatees under the will interplead with Samuel M. Harvey, who under a contract with the testator claimed part of the proceeds of sale of land of the testator sold by the executor.
Heard on bill, answers, testimony and exhibits. The facts are stated in the opinion of the Chancellor.
Frank L. Speakman, for complainant.
Herbert H. Ward, for residuary legatees.
Charles F. Curley, for Samuel M. Harvey.
William T. Lynam, executor of Jesse Chandler, filed his bill in the nature of an interpleader, and for construction of the will of Jesse Chandler, who died December 27, 1917. In his lifetime the testator owned and resided on a farm in Christiana Hundred containing about one hundred and sixty-six acres. By his will made in 1911 he directed that it and all the rest of his property be sold and the proceeds divided. By the third and last codicil dated March 1, 1916, he directed his executor within six months after the death of the testator to convey the farm to Samuel M. Harvey for twenty thousand dollars, and if Harvey should fail to avail himself of the right to purchase the farm, it should be sold by the executor and proceeds applied as indicated.
By an agreement in writing dated November 1, 1916, Jesse Chandler agreed to sell the farm to Ralph Hollingsworth, and after litigation between them this Court on May 8, 1917, decreed that the contract be specifically performed. An appeal was taken and the decree of this Court was affirmed by the Supreme Court on January 21, 1918, after the death of Jesse Chandler. See post p. 362, 103 A. 355. A bill in the nature of a revivor and supplemental bill was filed by Hollinsgworth against the executor and Samuel M. Harvey, and on April 24, 1918, a decree was made requiring the executor to convey to Hollingsworth without prejudice to the rights if any which Harvey might have in and to the purchase money. The conveyance was made and the executor received the purchase money, thirty-four thousand, five hundred dollars.
It was alleged that Harvey claims to be entitled to have the difference between twenty thousand dollars and thirty-four thousand, five hundred dollars, while the residuary legatees claim otherwise. Instructions and a construction of the will are asked, and Samuel M. Harvey and all of the residuary legatees are made parties defendant, and Harvey and some of the residuary legatees have by answers set up their claims to the fund.
Samuel M. Harvey by his answer claims that on December 26, 1915, he and Chandler made an agreement in writing by which Chandler in consideration of one hundred dollars, agreed to sell and convey to Harvey the farm for twenty thousand dollars, the conveyance to be effective after Chandler's death. Subsequently, acting on legal advice of their respective counsel, it was agreed between Harvey and Chandler that the above agreement could be better and more conveniently effected by a codicil to Chandler's will, and consequently the codicil of March 1, 1916, was made, giving to Harvey the right to purchase the farm for twenty thousand dollars within six months after Chandler's death, this codicil being made as consideration of Harvey's waiver of his rights under the written agreement of December 26, 1915. It was claimed by Harvey that Chandler was legally and in equity bound to pay to Harvey the part of the purchase money of the sale to Hollingsworth in excess of twenty thousand dollars, if Chandler had received it in his life, and that this obligation survived against his estate. Therefore Harvey asked that the portion of the purchase money received by the executor in excess of twenty thousand dollars be paid to him first, because he had a right thereto enforceable against Chandler in his life, and which survived as against his estate; and second, because it appears from the codicil and the surrounding facts to be Chandler's intention that Harvey should own the farm after Chandler's death at a consideration of twenty thousand dollars, and Chandler was at his death the legal owner of the land.
Some of the residuary legatees by their joint answers deny the conclusions of law and fact in Harvey's answer, and claim that the total proceeds of sale became a part of the residuary estate payable to them and Harvey is entitled to none of it. The other residuary legatees have not appeared in response to substituted service by publication.
The agreement of December 26, 1915, is as follows:
The first question to be decided is whether the contract of December 26, 1915, was valid and enforceable. The residuary legatees claim that it is not, because it fails to describe with certainty the property sold, and the time and manner of performance is undefined. But the subject-matter of the agreement was sufficiently identified by the words "Jesse Chandler Farm at Granogue Delaware." The time of performance was fixed, and the manner of performance would be such as the law would imply in the absence of a statement thereof.
As a preliminary to stating conclusions, it is necessary to dispose of certain questions raised at the hearing as to admissibility of testimony.
The tentative view which was expressed by me during the hearing as to the competency of Harvey to testify as to statements by and transactions with the testator was erroneous, and it is now clear that his testimony was inadmissible. While the proceeding was in effect an interpleader suit brought by the executor, the defendant, Harvey, by his answer, properly availed himself of the opportunity which the suit gave to enforce the rights which he claims to have against the estate, and which as complainant in equity, or plaintiff at law, he could have made the subject-matter of an action against the executor. Harvey seeks here damages for a breach of contract, and the relief which he will get, if successful, is an award of money to be paid by the executor from the assets of the decedent's estate. His interests are those of a party opposite to the interests of the other interpleading defendants, who are beneficiaries of the testator, and so are opposite to the estate, and any decree awarded would be against the executor. Therefore, it is within the spirit and letter of the statute which provides that in actions or proceedings by or against executors in which judgment or decree may be rendered for or against them, neither party can testify against the other as to any transaction with, or statement by, the testator. Therefore, none of such testimony has been considered by me in reaching conclusions.
The same objections do not apply to the competency of the wife of Samuel M. Harvey as a witness. She was not incompetent because she is his wife. She is competent to testify to statements by the testator because being one of the residuary legatees her interest was opposed to that of her husband, as it would have been to any one claiming to be a creditor of the testator. Being a party "opposite" to her husband, and having been called by him as a witness, she was competent to testify to the above-mentioned matters, being within the exception of the statute.
Another ground of objection to her testimony related to the character thereof, and it was urged that it related to an interest in land, and not being in writing was not admissible under the Statute of Frauds (§ 2626, p. 1270, Revised Code). The effect of her testimony, if it had any material bearing on the issues, was that Chandler while he had under consideration the offer of Hollingsworth to purchase the farm, admitted orally that Harvey's rights under the agreement of December 26, 1915, would remain notwithstanding the sale to Hollingsworth. It was not the making of a new agreement concerning land, or the sale thereof, but an oral recognition of the fact that Harvey had rights under the agreement which the sale to Hollingsworth would not affect. But this admission was nothing more than the statement of a legal conclusion. It was not, therefore, within the prohibition of the Statute of Frauds, and besides, is not important evidence.
Objection was made to the testimony of George L. Townsend, Jr., on the ground that it also was excluded by the Statute of Frauds. The effect of his testimony was that Chandler made the codicil to further protect the rights of Harvey under his contract. Such testimony clearly relates to a contract concerning land, or rather was offered to show the purpose of the owner of land in disposing by will of land which he had theretofore contracted to sell. It is therefore, inadmissible either as proof of a contract respecting land, or...
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... ... precedent, this opinion will likewise in the main be directed ... to a consideration of that question ... In the ... case of Lynam v. Harvey, 12 Del. Ch. 129, 108 A ... 850, text 854, it is said: ... 'If ... a vendor of land sells and conveys it before the time ... ...