Pershall v. Elliott

• Decision Date: 26 October 1928
• Citation: 163 N.E. 554,249 N.Y. 183
• Parties: PERSHALL v. ELLIOTT et al.
• Court: New York Court of Appeals Court of Appeals

249 N.Y. 183

163 N.E. 554

PERSHALL

v.ELLIOTT et al.

Court of Appeals of New York.

Oct. 26, 1928.

Action by Charlotte E. Pershall against Hiram Elliott, as executor of David B. Pershall, deceased, and others. Judgment for plaintiff was affirmed by the Appellate Division (223 App. Div. 776, 227 N. Y. S. 876) with a slight modification as to costs, and defendants appeal by permission.

Reversed, and complaint dismissed.Appeal from Supreme Court, Appellate Division, Second Department.

Michael D. Reilly and Herbert D. Hamm, both of Albany, and Robert H. Wright, of Rensselaer, for appellants.

Matthew W. Wood, of New York City, for respondent.

POUND, J.

In 1902 the plaintiff married Henry L. Pershall. Pershall's father, David B. Pershall, lived with them. In 1906 the father purchased a house in Brooklyn for the sum of $13,000. The plaintiff and her husband, as well as the father, lived together in that house until plaintiff's husband died in 1923. During that time plaintiff's husband made many valuable improvements in the house. The plaintiff claims that these improvements were made under an oral agreement that at the father's death she and her husband should have the right to purchase the house at the price paid for it by the father. No memorandum in writing of such agreement was made at the time, but in 1916 the father made a codicil to his will which reads as follows:

‘Whereas my son, Henry L. R. Pershall, has from time to time, since the purchase by me of my present residence, No. 861 President Street, Brooklyn, New York, expended large sums on the repair and improvement thereof and is about to make other like expenditures, on the understanding that in the event of my death he should be entitled to purchase said house from my estate at its cost, and thereby obtain the benefit of such expenditures by him made, I do hereby authorize and direct my executors to sell and convey to my said son said premises and building for the sum of thirteen thousand dollars ($13,000), the price paid by me therefor, in case he shall elect to so purchase the same at such price and shall notify my executors of such election within one year from the date of my death, and shall within such time pay the consideration and accept a deed therefor, subject to all taxes and assessments thereon accruing after my death.’

Plaintiff's husband died in February, 1923. Within a month thereafter the father made a will in which he provided:

‘Fourth. I also direct and provide inasmuch as the residence known by street number as 861 President Street, Borough of Brooklyn, City of New York, was purchased by me for the sum of Thirteen thousand five hundred dollars ($13,500) and in view of the fact that my son Henry LeRoy Pershall, now deceased, and my daughter-in-law Charlotte E. Pershall, have expended various and divers sums of money in the improvement of the said real property for which I feel that they or she should receive adequate reimbursement, that my said daughter-in-law shall have the privilege of purchasing the said property after my decease at the said sum of Thirteen thousand five hundred Dollars ($13,500) which said monies shall thereupon become and be a part of my estate.’

A year thereafter he revoked that will. The plaintiff thereupon brought this action to compel the father specifically to perform his agreement to permit her to purchase the property at the sum which the father paid for it. She claims in the complaint that her father-in-law revoked his last will because of the undue influence of his children. The father-in-law died during the pendency of the action, but not till after he made a deposition in the case. The trial judge found in favor of the plaintiff and directed the father-in-law's executor and the daughters to convey the house to this plaintiff upon payment of $13,000. The Appellate Division affirmed the judgment below with a slight modification as to costs (223 App. Div. 776, 227 N. Y. S. 876).

Technical objections to the form of the action may be overlooked. The case may be disposed of on the merits on the question whether plaintiff's option to purchase contained in her father-in-law's will is enforceable as a contract.

[1] Assuming that the codicil constitutes a sufficient contract which the law would sustain as a legal obligation whereby the plaintiff's husband received the right to purchase the house at the price his father paid for it, provided the husband survived the father, the question remains whether the plaintiff has such an enforceable contract.

Real Property Law (Consol. Laws, c. 50) § 259, provides:

‘§ 259. When contract to lease or sell void. A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor, or by his lawfully authorized agent.’

Obviously the codicil for the son's benefit was contractual in form and expressed a...