Sullivan v. Dumaine

• Decision Date: 30 December 1964
• Citation: 205 A.2d 848,106 N.H. 102
• Parties: Mary A. SULLIVAN v. Henry E. DUMAINE et al.
• Court: New Hampshire Supreme Court

Page 848

205 A.2d 848

106 N.H. 102

Mary A. SULLIVAN v. Henry E. DUMAINE et al.

Supreme Court of New Hampshire.

Argued Sept. 10, 1964.

Decided Dec. 30, 1964.

Hamblett, Kerrigan & Hamblett, Joseph M. Kerrigan, Nashua, for plaintiff.

Clancy & O'Neill, Frank B. Clancy, Nashua, for defendants.

KENISON, Chief Justice.

There was some evidence to support the plaintiff's claim that she was promised the property at 4 Hamilton Street in Nashua, New Hampshire by the decedent Michael Sullivan. See White v. Poole, 74 N.H. 71, 65 A. 255. However we cannot say that the defendants' contention and the determination of the Trial Court 'that there is a lack of clear and convincing evidence' that the promise was made is erroneous on the record before us. A leading commentator in this field (Sparks, Contracts to Make Wills 22-23, 24 (1956) summarizes the problem as follows: 'Much of the litigation concerning contracts to make wills has been prompted by nothing more than a feeling that the decedent ought to have made a certain property disposition and that he therefore must have contracted to that effect. To this it need only be said that moral oughtness, however strong or compelling, does not create a legally enforceable obligation. * * * Guarding against an otherwise probable tendency to find a contract based on moral oughtness rather than upon offer and acceptance supported by consideration is the rule requiring a higher degree of evidence to sustain a contract to make a will than is required in contracts generally. While this rule has been variously stated, its most usual form is that the evidence of contracts to devise or bequeath must be clear and convicing.' Boyle v. Dudley, 87 N.H. 282, 284, 179 A. 11; Foley v. Elliot Community Hospital, 98 N.H. 186, 188, 96 A.2d 735. Cf. Lemire v. Haley, 91 N.H. 357, 19 A.2d 436. The plaintiff's exception to the denial of her petition for specific performance is overruled.

The defendants contend that the award of damages of $6,000 to the plaintiff was beyond the power of the Court. Partial reliance is placed on 49 Am.Jur., Specific Performance, s. 164, p. 187: 'Relief in the nature of money damages for a breach of contract cannot be given under a general prayer where the specific prayer asks for the specific performance of a contract which is in fact unenforceable because of indefiniteness and uncertainty.' Suffice it to say that this does not state the law of this jurisdiction. Once having acquired jurisdiction, equity will give complete relief rather than forcing the parties to the delay and expense of a new trial. Barber v. Somers, 102 N.H. 38, 43, 150 A.2d 408; Manchester Amusement Co. v. Conn, 80 N.H. 455, 119 A. 69. All parties to this proceeding in their pleadings requested 'such * * * relief as may be just' and the Trial Court was warranted in awarding damages as an incident to complete relief. Oullette v. Ledoux, 92 N.H. 302, 306, 30 A.2d 13; Day v. Washburn, 76 N.H. 203, 81 A. 474. It is not every claim for a contract to make a will that requires or should require four trials and four appeals. See the litigation in Lemire v. Haley, 91 N.H. 357, 19 A.2d 436; 92 N.H. 10, 23 A.2d 769; 92 N.H. 358, 31 A.2d 62; 93 N.H. 206, 39 A.2d 10. The plaintiff's failure to sustain her burden of proof for specific performance did not preclude her right to any relief. The rubric of restitution is not displaced because a specific type of equitable relief cannot be proved. There was evidence in the record to enable the court to make an award of damages to the plaintiff. She testified with reasonable particularity as to the services she rendered for the decedent. From this evidence the Trial Court could arrive at their reasonable value over and above the value of her food and lodging plus the weekly remuneration which she received. Lemire v. Haley, 93 N.H. 206, 208, 39 A.2d 10. It is also to be noted the award is based in part on the fact that the plaintiff was 'harassed unnecessarily' by the actions of some of the defendants while litigation was pending.

RSA 516:25, enacted by Laws 1953, c. 182, reads as follows: 'Declarations of Deceased Persons. In actions, suits or proceedings by or against the representatives of deceased persons, including proceedings for the probate of wills, any statement of the deceased, whether oral or written, shall not be excluded as hearsay provided that the trial judge shall first find as a fact that the statement was made by decedent, and that it was made in good faith and on decedent's personal knowledge.' This statute is similar to 63(4)(c) of the Uniform Rules of Evidence which was taken from Mass.L.Ann. 233, § 65. See Chadbourn, Bentham and the Hearsay Rule--A Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence, 75 Harv.L.Rev. 932 (1962). One '* * * obvious purpose of this statute * * * was to prevent injustice to the estates of deceased...