McTague v. Finnegan
| Decision Date | 26 September 1896 |
| Citation | 35 A. 542,54 N.J.E. 454 |
| Parties | McTAGUE v. FINNEGAN et al. |
| Court | New Jersey Court of Chancery |
(Syllabus by the Court.)
Bill by Mary A. McTague against Austin Finnegan and others for specific performance. Bill dismissed.
John H. Port, for complainant.
Alfred Mills, James R. English, and T. P. McCormick, for defendants.
MeGILL, Ch. The complainant's bill alleges the existence of two contracts, whereby, at the death of Patrick Rehill and Elizabeth, his wife, the complainant was to have their respective estates; and its object is to secure the specific performance of those contracts so far as the estate of Patrick Rehill is concerned. The allegations of the bill are that scon after the complainant's birth, in December, 1839, her mother died, and her father committed her to the care of his sister, Elizabeth Rehill, and Patrick Rehill, her husband, who were about to visit Ireland, to conduct her to the home of her grandparents in that land; that the Rehills, having no children, became attached to her, and, instead of delivering her to her grandparents, kept her, and treated her as their own child, and, after six or seven years, returned with her to America; that, upon their return to America, her father sought her surrender to him, and then the Rehills bargained and agreed with him that, if he would make complete surrender of her to them, they would adopt her as their child, and maintain and educate her, and "make" her the "beneficiary" of their joint and separate estates at their demise; that the surrender thus stipulated for was duly made, and the complainant thereafter remained with the Rehills as their adopted daughter, known by their surname, and rendered them service and obedience as their daughter, until November, 1861, when, with their consent, she married one Peter S. McTague; that McTague thereafter became the partner of Patrick Rehill in business, as general contractors in the construction of railroads and work of kindred character, and remained such partner for many years; that, in process of time, McTague sued Rehill to secure an accounting of the partnership dealings, which suit resulted in a judgment for $17,000 in McTague's favor; that thereupon Rehill conveyed his real estate to a nephew, and converted a large portion of his personalty Into cash, and fled to Ireland, to escape the payment of the judgment; that Elizabeth Rehill, suffering from a cancer, was unable to follow her husband, and therefore sent for the complainant, and induced her to influence McTague to compromise the judgment; that the judgment was compromised for $5,000 in cash (which was subsequently paid), and an agreement that the family affection which had existed before the suit should be restored, and the complainant should be recognized as the adopted daughter of the Rehills, "with [using the language of the bill] all the rights and privileges of inheritance of a child, and with the understanding that your oratrix was to be the beneficiary to their estates at their demise, as fully and freely as if no estrangement had ever taken place, * * * and upon this express understanding and agreement: that the matter of inheritance should not be disputed, and that your oratrix should in no wise be affected by any misunderstanding existing between said Peter S. McTague and Patrick and Elizabeth Rehill, but that every provision, condition, and understanding that existed before the suit should, by the terms of the agreement, and in consideration of a reduction of $12,000 on said judgment of $17,000, be removed, and the rights and privileges of your oratrix remain unaffected, and the question of her adoption and the question of her inheriting as the beneficiary of their estates should be undisputed"; that, after the compromise had been effected, Mr. Rehill returned to the United States, presented his wife with $40,000 of his moneys, made a will by which he bequeathed and devised the remainder of his estate to others than the complainant, and a few days thereafter died; and that, a few months later, Mrs. Rehill made her will, by which she bequeathed all her estate, including therein the $40,000 received from her husband, except $1,000, to others than the complainant, and shortly thereafter died; and that before the suit by McTague against Patrick Rehill was brought, and while the complainant continued to be recognized by the Rehills as their daughter, her own father, John Lee, died, possessed and seised of a considerable estate, of which he bequeathed and devised to her a much smaller portion than he would have given her if he had not believed that she would take the estates of the Rehills.
The complainant's object in this suit is to recover the estate of Patrick Rehill, including, as part thereof, the $40,000 which was given to Mrs. Rehill upon the return of Patrick from Ireland, and which constituted practically the whole property disposed of by Mrs. Rehill's will. The defendants are the executors, devisees, and legatees under the two wills. The decree sought by the complainant, if made, will require the surrender of both estates, and defeat the provisions of both wills. It thus appears that the complainant relies upon two agreements, —the first made about the year 1845, when she insists her father surrendered her, and she became the adopted child of the Rehills; and the second when, in 1880, the proofs show, the $17,000 judgment was satisfied.
Tbe facts alleged concerning the first agreement, it is insisted, bring it within the principles decided in Van Dyne v. Vreeland, 11 N. J. Eq. 370, 12 N. J. Eq. 142. It is urged that it was a parol contract, made by a father for the benefit of his child, in good faith, fully performed upon her part by her surrender to the Rehills, and her dutiful obedience to and service of them as their child, until, with their consent, she married; and her irretrievable detriment in the loss of a portion of the bounty of her father, which, but for his reliance upon the agreement, she would have had, which contract will be enforced in equity, upon the ground that the nonperformance will operate as a fraud upon the complainant. The first difficulty I have with this alleged agreement— and it is an insurmountable one—is that it is not proved to have ever been entered into. There is no direct proof that it was made. The facts that the complainant's father suffered the Rehills to keep his daughter; that she was called by their name, and known as their daughter; that they said she was their adopted daughter, and taught her and suffered her to call them, respectively, "father" and "mother"; and that they frequently declared to her husband and strangers that she would have their properties...
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