Roehl v. Haumesser
| Decision Date | 08 February 1888 |
| Docket Number | 13,062 |
| Parties | Roehl, Administrator, v. Haumesser |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 13, 1888.
From the Fayette Circuit Court.
The judgment is affirmed, with costs.
J. I Little, C. Roehl, J. S. Duncan, C. W. Smith and J. R. Wilson for appellant.
C. A Korbly, W. O. Ford, R. Conner and H. L. Frost, for appellee.
Barbara Haumesser filed a claim against the estate of John Farner, late of Fayette county, deceased, on which a jury, after hearing the evidence, allowed her the sum of $ 3,050.
The claim is based on the following facts, which are set forth in detail and at length in a complaint which was duly filed: In October, 1884, Farner resided at Connersville, Indiana, his family consisting of himself and wife, both of whom were aged and in infirm health. Being childless, he addressed a letter to the claimant's mother, she being a niece, residing at Madison, Indiana, in which he proposed, in effect, that if she would permit her daughter to come and live with him, and do his housework, and take care of him and his afflicted wife, he would, in consideration thereof, devise and bequeath to the claimant one-half of his estate.
The claimant's mother replied to this letter that the claimant would accept the proposition so made, provided the decedent, in addition to the proposed devise, would agree to pay her, the mother, two dollars a week, in order to make good the loss of claimant's services to the family; and provided further, that he would agree to pay the claimant's railroad fare from Madison to Connersville.
Another letter is alleged to have been written and signed by George Haumesser, a brother of the claimant, in which substantially the same proposition was made as that contained in the letter written by the decedent. This last letter was addressed to the mother, and is alleged to have been written at the request and by the direction of the decedent, the writer being so directed while at Farner's house. Finally, on the 27th day of October, 1884, a third letter was written by the decedent to the mother, in which he again repeated his original proposition to devise one-half his estate to the claimant, on the conditions proposed, and in which he also acceded to the conditions proposed in the letter from the claimant's mother, and agreed to pay two dollars a week in addition to the devise proposed, and the railroad fare, which he enclosed.
The contents of the several letters above mentioned were communicated to the plaintiff, and, on the 10th day of November, 1884, she accepted the terms proposed, and at once proceeded to the decedent's residence at Connersville. She became a member of his family and fully performed the contract until the 16th day of the ensuing January, when John Farner died of a sudden illness, having, theretofore, made a will in which he made no provision for the claimant.
It is alleged in the complaint that the letters above mentioned have been lost, and that, for that reason, copies thereof could not be set out and exhibited with the complaint. The prayer is, that the claimant may recover, on the contract alleged to have been made by the written correspondence above mentioned, one-half the value of John Farner's estate, which is alleged to consist of six thousand dollars' worth of real property, and a personal estate inventoried at $ 4,790.95.
The court overruled a demurrer to the claim or complaint, and this ruling presents the first question for consideration.
In Wallace v. Long, 105 Ind. 522 (55 Am. R. 222, 5 N.E. 666), it was held by this court that an executory contract to devise real estate, or to bequeath personal property, exceeding fifty dollars in value, must be in writing, otherwise it would be within the statute of frauds, and would neither be enforceable, nor would it, ordinarily, support an action for damages. Recognizing the rule laid down in the above mentioned case, the claimant relies on the correspondence between the decedent and her mother.
The contents of these letters are put forward, and the claim is that they constitute such a contract in writing, signed by the party to be charged, or by some person thereunto by him lawfully authorized, as satisfies the statute.
The contract, as it is alleged to have been set forth in the letters which are said to be lost, was that the decedent "would make a will and devise and bequeath to Barbara Haumesser the one-half of all his estate."
It is contended that the contract is wholly void for want of a sufficient description or identification of the real estate to be devised. This position is not sustainable. There is no reason why a contract to devise real estate should be more specific in respect to the description of the real estate to be devised than a devise itself or than a deed or mortgage. A devise of all, or of any aliquot part, of the real estate of which a testator should die seized, would not be open to serious question. Thus, it was held in Townsend v. Downer, 23 Vt. 225, that a devise of land, "which I purchased, lying on the main, supposed to be in the State of Vermont," it appearing that the testator owned one tract of land in a particular township in the State of Vermont, was not void for uncertainty. The court there say: "A devise, or grant, is only declared void for uncertainty, when, after the resort to oral proof, it still remains mere matter of conjecture, what was intended by the instrument." So it has been held that a deed "of all my estate," or "of all my lands wherever situate," is sufficient to pass title. Wilson v. Boyce, 92 U.S. 320, 23 L.Ed. 608; Jackson v. Delancey, 4 Cow. 427; Pond v. Bergh, 10 Paige, 140; 2 Redfield Wills, 388.
In Leslie v. Merrick, 99 Ind. 180, the sufficiency of a description of real estate as contained in a mortgage came in question. In consonance with the well established rule, the court there held that "A deed or mortgage of all the real estate of the grantor or mortgagor is good without any further description, because the real estate conveyed or mortgaged can be ascertained by evidence aliunde."
So this court said in Torr v. Torr, 20 Ind. 118: "Where the description, so far as it goes, is consistent, but does not appear to be complete, it may be completed by extrinsic, parol evidence, provided a new description is not introduced into the body of the contract." Thomas v. Mathis, 92 Ind. 560; Scanlan v. Geddes, 112 Mass. 15; Mead v. Parker, 115 Mass. 413; Waring v. Ayres, 40 N.Y. 357; Parker v. Teas, 79 Ind. 235; English v. Roche, 6 Ind. 62.
That part of a deed or contract which relates to the description of the premises should be liberally construed, so as to make the instrument available. Hannon v. Hilliard, 101 Ind. 310.
A contract in general terms to devise all, or one-half, of an estate, like a devise, applies to such property of all kinds as the person agreeing to make the devise may have left subject to disposition by will or devise at his death. The contract of Farner to devise one-half of his estate to the claimant evidently had reference to such property as he should die seized of. One-half of that, according to the agreement, was to go to the plaintiff. This was capable of being ascertained and made certain, and, in obedience to the maxim which declares that to be certain which may be made certain, the contract is not subject to objection on account of the generality of the description. A party consultant of his rights may sell or devise by general description, though an officer must define what he sells. Jackson v. De Lancey, 11 Johns. 364 (373).
While the description is general, it is entirely free from ambiguity. There is no room for conjecture as to what property is to be affected by the contract. It embraced one-half of all the estate owned by the decedent at the date of his death.
The contract was, therefore, sufficient to sustain an action for specific performance, or for damages for its breach, and, this being an action of the latter nature, it was not necessary to set out in the complaint a particular description of the property owned by the decedent at the date of his death. Where a description of real estate is general and incomplete, as contained in a contract or deed, and the action is for specific performance, or to obtain a decree in any way affecting the land or a particular part thereof, it is necessary to aver extrinsic facts in the complaint in aid of the general or incomplete description, so that the court may, in its decree, designate the particular land to be affected by its judgment. Hannon v. Hilliard, supra; Torr v. Torr, supra. This is not necessary where the action is for damages for failing to comply with a valid agreement to convey or devise real estate.
The validity of the contract, as it is affected by or under the requirements of the statute of frauds, must be determined by an inspection of the paper. While the contract may be applied to the subject-matter by the aid of extrinsic averments and parol evidence, its validity can not be thus determined. Eggleston v. Wagner, 46 Mich. 610, 10 N.W. 37; Colerick v. Hooper, 3 Ind. 316 (56 Am. Dec. 505).
Something is said about the policy of upholding contracts such as that under consideration. However this may be, it is now too well settled to be open to question that a person may make a valid contract binding himself to make a particular disposition of his property by last will and testament. The only inquiry which the law justifies, in case of an agreement to devise or bequeath property founded on a valid consideration, is as to the validity of the agreement, and whether or not it was entered into fairly, without...
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