Middleworth v. Ordway

• Decision Date: 13 March 1908
• Citation: 84 N.E. 291,191 N.Y. 404
• Parties: MIDDLEWORTH v. ORDWAY et al.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 404

84 N.E. 291

MIDDLEWORTH

v.ORDWAY et al.

Court of Appeals of New York.

March 13, 1908.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Sarah Middleworth against Mary M. Ordway, individually and as administratrix, etc., and others. From a judgment of the Appellate Division of the Supreme Court (120 App. Div. 903,105 N. Y. Supp. 1131), defendants appeal. Affirmed.

For prior reports, see 49 Misc. Rep. 74, 98 N. Y. Supp. 10; 117 App. Div. 913,102 N. Y. Supp. 1143.

This action was brought against the widow, heirs, and administratrix of James M. Ordway, deceased, to compel the specific performance of a contract alleged to have been made between the father of the plaintiff and the said decedent for her benefit. The trial court found the following facts in substance: On the 25th of November, 1879, the plaintiff was an infant but 15 months old. Her mother had recently died, and her father, George B. Stanton, was a laboring man in straitened circumstances, with a large family of young children, and without any one who could properly care for so young a child. At the same time James M. Ordway was a man of mature years, in good circumstances, and at the height of an active business career. He was married, but had no children. He resided with his wife, Mary, in the town of Indian Lake, Hamilton county, at a place remote from the office or residence of a lawyer, or of one skilled in legal matters. An instrument was prepared at the request of himself and Mr. Stanton by a magistrate of the neighborhood, who had no technical knowledge, of which the following is a copy:

‘This indenture, made this 25th day of November, 1879, between George B. Stanton, of the town of Long Lake, in the county of Hamilton, and state of New York, party of the first part, and James Ordway and his wife, Mary Ordway, of the town of Indian Lake, in the county of Hamilton, aforesaid, of the second part, witnesseth: That the said party of the first part, for and in consideration of the agreements and stipulations hereafter mentioned, doth convey, and by these presents hath conveyed, to the parties of the second part, all the right, title, interest, and claim of every name and nature whatsoever, together with all the service, labor, and benefit, to a certain female child, it being the youngest child of the said George B. Stanton, by his late wife, Emma Stanton, born at Long Lake, the 12th day of August, 1878, hereafter to be known by the name of Sarah Ordway, to have and to hold the same as the child of the said James and Mary Ordway, parties of the second part, the same as though legitimately their own child, with full power to do by, and for, as they shall deem fit and proper. In consideration whereof, the said James M. Ordway and Mary, his wife, does hereby covenant and agree to and with the said George B. Stanton, party of the first part, to adopt the said Sarah as their own child, to feed, clothe, educate, and provide proper care and nourishing, when sick, as their ability shall allow, provided, always, the said Sarah is to remain with the said James Ordway and Mary, his wife, and submit to their government, until she shall arrive at the age of 18 years, when she shall be entitled to her dower right to the property of the said James and Mary Ordway, the same as though she were their own legitimate offspring; and the said George B. Stanton, for himself, hereby relinquishes all further claim or control to or in the said Sarah Ordway, either in law or equity.

‘In witness whereof, what is above agreed, to which we are each bound, we also bind our executors, administrators, and assigns firmly by these presents to their full performance. In testimony whereof, we sign our names, sealed with our seals, this 25th day of November, 1879.

‘Geo. B. Stanton. [L. S.]

‘James M. Ordway. [L. S.]

‘Signed and sealed in presence of

‘Stephen D. Lamos.’

This instrument was signed, sealed, and acknowledged by Mr. Stanton, and, although signed and sealed by Mr. Ordway, was not acknowledged by him, and it was neither signed nor acknowledged by Mrs. Ordway. It was executed in duplicate, one being delivered to each party; the name of Mrs. Ordway, although appearing in the instrument, apparently being treated as if it had not been written therein. The plaintiff's father duly performed all the conditions of this contract on his part and surrendered the custody of the plaintiff to Mr. Ordway. Thenceforward she lived in his family and was maintained, treated, and educated as his child, and she believed that she was his child until she was 14 years of age, when she first saw her own father to know him. Her name was Hannah Stanton, but after the date of the contract she went by the name of Sarah Ordway. She discharged the duties of a daughter to the said Ordway and wife, and lived continually with them as their daughter, until the time of her marriage. After that event Mr. Ordway provided her with a house in which she lived with his consent; but she continued nevertheless to discharge her duties as a daughter to him and his wife, and was treated by them as a daughter up to the time of his death. She performed all the conditions of said contract on her part, except that she did not, after her marriage, wholly submit to their government until she arrived at the age of 18 years; but the trial court found that she substantially performed in part, and that full performance thereof was waived by Mr. and Mrs. Ordway. She never saw the contract until after the death of Mr. Ordway, which took place on the 2d of March, 1905. He died intestate, leaving him surviving Mary Ordway, his widow, and several brothers and sisters, but no descendants. His personal property was worth at least $12,000, and he left real estate worth $16,000. The trial court also found that an oral contract was made on the 25th of November, 1879, between Mr. Ordway and Mr. Stanton, whereby the latter agreed to surrender the plaintiff to the former, with ‘all claims or rights of every name and nature, together with the tuition and custody which he had over said plaintiff by reason of being her father’; that in consideration of said agreement Mr. Ordway ‘agreed to take the plaintiff and to adopt her as his child, to rear, educate, and maintain her, and to treat her as a member of his own family and as a daughter in all respects, and, provided she remained with the said James M. Ordway and his wife and submitted to their government until she reached the age of 18 years, to make this plaintiff as his heir and to give her the same interest which as a daughter she would have in whatever property he owned or might have at the time of his decease.’

The trial judge found as a conclusion of law that by virtue of both the oral and written agreements ‘George B. Stanton parted with the tuition, care, custody, and control of the plaintiff, and the same became vested in James M. Ordway, and he became thereby bound to carry out and perform all the conditions and covenants in said contract on his part to be performed, upon substantial performance of the contract by the plaintiff.’ He found, in substance, both as matter of fact and law, that ‘by the use of the phrase in the written contract, ‘when she shall be entitled to her dower right to the property of the said James and Mary Ordway, the same as though she were their own legitimate offspring,’ George B. Stanton and James M. Ordway intended to express an agreement whereby the plaintiff would have such rights as a daughter would have by the laws of descents and the statute of distribution if said James M. Ordway died intestate.' Judgment was ordered in favor of the plaintiff ‘for the specific performance of the contract as against the collateral heirs and next of kin of James M. Ordway, but not as against his widow; that the plaintiff should be adjudged the owner in fee simple of the lands of which James M. Ordway died seised and possessed, subject to the dower rights of the said Mary M. Ordway; that the other defendants be directed to execute and deliver to the plaintiff a conveyance of said lands as heirs at law of said James M. Ordway, deceased; that it should be further adjudged that the plaintiff is entitled to one-half of the personal property belonging to Mr. Ordway at his death, after the payment of his debts and the expenses of administration, and requiring Mary M. Ordway, as his administratrix, to account and pay over to the plaintiff such share thereof.’

The defendants appealed from the judgment entered accordingly, but the same was in all things unanimously affirmed by the Appellate Division. All of the defendants appealed to this court.Henry W. Williams, for appellants.

Joseph A. Kellogg and Erskine C. Rogers, for respondent.

VANN, J. (after stating the facts as above).

The judgment now before us for review enforces a contract relating to the right of inheritance, so as to take away from the natural heirs of a dead man a large portion of his property and confer it upon a stranger to his blood. The...