Teske v. Dittberner

• Decision Date: 16 December 1903
• Docket Number: 10,901
• Parties: CARL TESKE, APPELLEE, v. MARTHA DITTBERNER ET AL., APPELLANTS. [*]
• Court: Nebraska Supreme Court

98 N.W. 57

70 Neb. 544

CARL TESKE, APPELLEE, v. MARTHA DITTBERNER ET AL., APPELLANTS. ^[*]

No. 10,901

Supreme Court of Nebraska

December 16, 1903

APPEAL from the district court for Madison county: JOHN S. ROBINSON JUDGE. Reversed.

REVERSED.

William V. Allen and Willis E. Reed, for appellants.

Patrick E. McKillip, W. A. McAllister, James G. Reeder and Ralph W Hobart, contra.

OPINION

HOLCOMB, J.

In the last opinion filed by Mr. Commissioner AMES, it is shown that the agreement in question is testamentary. We entirely agree and do not consider it necessary to say more upon that head. The validity of such agreements, when made upon consideration and free from objections that may be urged against all contracts, is beyond question. They have been upheld and enforced from an early period. Note to Johnson v. Hubbell, (10 N.J.Eq. 332), 66 Am. Dec. 773, 784; Howe v. Watson, 179 Mass. 30, 60 N.E. 415; Bird v. Jacobus, 113 Iowa 194, 84 N.W. 1062; Whiton v. Whiton, 179 Ill. 32, 53 N.E. 722. It is also well established that agreements of this character, in proper cases, may be enforced specifically. Equity will fasten a trust upon the property in the hands of the person who has promised to dispose of it by will, in favor of the promisee, which will follow it into the hands of personal representatives or grantees without consideration. Howe v. Watson, supra; Smith v. Pierce, 65 Vt. 200, 25 A. 1092; Bruce v. Moon, 57 S.C. 60, 35 S.E. 415; Duvale v. Duvale, 54 N.J.Eq. 581, 56 N.J.Eq. 375; Fogle v. St. Michael Church, 48 S.C. 86, 26 S.E. 99; Price v. Price, 111 Ky. 771, 64 S.W. 746; Burdine v. Burdine, 98 Va. 515, 36 S.E. 992. Nor is it necessary that the agreement be in express terms to make a will. A promise that the promisee shall receive the property, or that it shall be left to him, at the death of the promisor, is sufficient. Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788. Counsel make a vigorous assault upon the latter decision. So far as it relates to cases of imperfect adoption, it chooses between two conflicting lines of authority, each well supported by reason and by adjudications. It ought not to be disturbed simply because some other courts have taken a different view. But, in any case, so far as general agreements to dispose of property by will are concerned, when the letter or intent of the statute as to adoption is not involved, we do not think the soundness of the decision is open to question. These principles established, it follows of necessity that if the person, who has promised to leave his estate or some part of it to another, conveys the property in question to third persons, without consideration, or with notice, the conveyance may be set aside at suit of the promisee who is defrauded thereby. Kastell v. Hillman, 53 N.J.Eq. 49, 30 A. 535. And as clearly shown in the last opinion of Mr. Commissioner AMES, the fact that the promisor is still living is no necessary obstacle to relief against the conveyance. There can be no specific performance till he is dead. But the conveyance whereby he attempts to put compliance out of his power, in fraud of the promisee, creates an immediate right of action. Synge v. Synge, 1 QB 1894, 466; Duvale v. Duvale, supra.

It is contended further that no sufficient performance is shown to take the case out of the statute of frauds. To the writer, this contention appears well founded and altogether correct, but a majority of the court is disposed to the contrary view and to hold that the contention can not be sustained. It seems to me quite clear that the appellee can be amply compensated for the part of the contract performed by him, assuming its existence, and that there is no occasion for invoking the authority of a court of equity to decree specific performance on the ground that otherwise a fraud would be perpetrated upon him. I think there is far greater danger, by the establishment of a precedent of decreeing specific performance under conditions and facts similar to those disclosed by the record, of making it possible that a fraud may be perpetrated on the aged, and the weak, and those closely connected by ties of blood, than of perhaps slight injustice to one who claims under so uncertain an agreement, which is only partially performed and for which, because of the particular facts and circumstances, ample compensation may be awarded by a money judgment. The authorities cited and relied upon by this court in Kofka v. Rosicky, supra, are regarded as warranting the decree prayed for, under the pleadings and the evidence in support thereof. In Rhodes v. Rhodes, 3 Sandf. Ch. 279, the court said:

"Where the services to be rendered were of such a peculiar character that it is impossible to estimate their value * * * by any pecuniary standard, * * * it is out of the power of any court, after the performance of the services, to restore Henry Rhodes (the promisee) to the situation in which he was before the contract was made, or to compensate him in damages. The case is clearly within the rule which governs courts of equity in carrying parol agreements into effect, where possession has been taken, or moneys laid out in improvements upon the land sold."

This statement was approved in Van Tine v. Van Tine, 15 A. 249, and quoted from a note (p. 789) to Johnson v. Hubbell, supra. It was repeated in substantially the same form in Shahan v. Swan, 48 Ohio St. 25, 26 N.E. 222, and Sutton v. Hayden, 62 Mo. 101, also approved by this court in the Kofka case. It is true several courts have criticized Rhodes v. Rhodes, and declined to follow it.

But it is held the question must be regarded as coming within the rule and settled in this state by Kofka v. Rosicky, supra. There are numerous other recent decisions which are believed to be in accord therewith. Winne v. Winne, 166 N.Y. 263, 59 N.E. 832; Svanburg v. Fosseen, 75 Minn. 350, 78 N.W. 4; Owens v. McNally, 113 Cal. 444, 45 P. 710; Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 173. On principle, none of us doubt the soundness of the proposition being discussed. Where the situation is such that the promisee can not be restored to his original position, to permit the promisor to repudiate his agreement under cloak of the statute of frauds, having received a substantial and valuable consideration, would be highly inequitable. Courts of equity, from the very beginning, have striven to maintain the statute in its integrity as a preventive of fraud, while strenuously repressing its use as a means of working frauds. A defendant will not be allowed to shelter his own fraud behind the statute of frauds, nor to use that statute as an instrument of fraud and wrong. When the statute is invoked to sanction a palpable fraud upon one who has performed his agreement and can not be restored to his original position, a court of equity must interpose its authority. Ryan v. Dox, 34 N.Y. 307; Wilber v. Paine, 1 Ohio 251; Hidden v. Jordan, 21 Cal. 92; Union Mutual Life Ins. Co. v. White, 106 Ill. 67; Whitson v. Smith, 15 Tex. 33.

It is stated in the last opinion in this case (65 Neb. 167), the plaintiff "has spent many of the best years of his life in the performance in good faith of the testamentary agreement, which the referee has found upon sufficient evidence, to have been entered into between himself and his parents. It does not appear to us that for a repudiation of the agreement by his father he could be adequately compensated in damages." The grantee not only took with notice, but has no equities whatever. Her grantor is amply protected under the terms of the agreement. Repudiation of the agreement, assuming the facts to be as stated, is a fraud upon the plaintiff and will work an irreparable injury. A court of equity ought to interfere in such cases, if possible, and we think it has the power.

But we are told the agreement is one for personal service, and hence is not specifically enforceable. To this there are two answers. In the first place, the contract provides for the care and maintenance of the promisor, or the allowance to him of a stipulated sum in lieu thereof, at his option. This feature of the agreement removes the objectionable features involved in an ordinary contract for support. Second, the agreement for service, as has been hereinbefore held, was substantially performed. If the agreement were newly made and the plaintiff were seeking specific performance, there would be another matter. Here, he has not only performed the services for many years, but has executed other portions of the contract, involving no little expenditure and labor. After performance, an objection of this character comes too late. The rule that contracts for personal service will not be enforced specifically, where full performance rests upon the will of the contracting party, is based on the consideration that the court can not make an efficient decree for specific performance in such cases nor enforce its decree when made. 3 Pomeroy, Equity Jurisprudence (2d ed.), sec. 1405. When the service has been rendered, the reason of the rule fails and the rule ceases to operate. In almost all of the cases above cited personal services were the consideration of the contract.

It is also argued that a testamentary agreement, being testamentary, must needs be ambulatory and revocatory. Until performance on the part of the promisee, this might be true. But after the promisee has substantially performed all things to be done on his part, the contract to leave the property to him at the death of the promisor ceases to be wholly executory, and revocation would be an intolerable fraud, which a court of equity could not permit. Bruce v. Moon, 57 S.C. 60, 35 S.E. 415. With the exception noted, the members of the court and of the commission, hearing oral arguments at the...