Welsh v. Hour

• Decision Date: 18 February 1927
• Citation: 136 A. 327
• Parties: WELSH v. HOUR et al.
• Court: New Jersey Court of Chancery

136 A. 327

WELSH

v. HOUR et al.

Court of Chancery of New Jersey.

Feb. 18, 1927.

(Syllabus by the Court.)

For a breach of a valid promise, in effect, to leave a liquidated sum by will, the remedy is at law, not in equity.

Where the bill and the proofs exhibit a cause cognizable in the law courts, equity will not entertain jurisdiction and determine the issues, even by the consent of the parties. Doctrine of scintilla of jurisdiction not applicable.

Suit by Frederick W. Welsh against Lillian M. Hour, individually, etc., and others, on a contract. Bill dismissed.

Whiting & Moore, of Newark, for complainant.

McDermott, Enright & Carpenter, of Jersey City, for defendants.

BACKES, Vice Chancellor. The complainant is one of six children of the late Frederick and Rachel Welsh. The father left his estate to his widow and five children, the complainant being excluded. The bill alleges that the complainant had reasonable grounds for contesting his father's will; that he intended doing so; and that his mother promised and agreed that if he would not, and permitted it to be probated, she "would by a will, to be made by her, leave to complainant an additional share of her property, so that, in addition to what he would normally receive under the laws of descent and distribution as one of the heirs and next of kin of his said mother, complainant would receive an amount large enough to make up for his loss of the share of his father's estate, which he would have received had his father died intestate"; and that, relying on the promise, be refrained. The mother did not leave the promised will, and the bill prays that it be decreed that the defendants hold in trust for the complainant their shares of and interest in the property, real and personal, whereof their mother died seized or possessed, or so much thereof as will be necessary to carry out the terms and provisions of their mother's agreement with the complainant, and that they be decreed to convey and pay over the same or so much thereof as may be necessary to specifically carry out the terms and provisions of the agreement. The defendants are the five children and the administrator of the mother.

The complainant was permitted to testify, under objection, for the purposes of the record, of transactions and conversations with his mother, but his testimony is incompetent, under section 4 of the Evidence Act (2 Comp. St. 1910, p. 2218). There is testimony, however, by other witnesses that tends to establish the contract.

The case made out by the bill and, in a measure, supported by the proofs is that of a promise, made upon a valuable consideration, to bequeath or/and devise property, generally, of the promisor's estate of a definite value, said to be $4,859.94, and is, in effect, a promise to pay a liquidated sum of money at the death of the promisor, and, by will, to order that it be paid out of the promisor's estate. For the redress of a breach of such a promise the law courts furnish an adequate remedy in damages. Holcombe v. Griggs, 78 N. J. Law, 186, 73 A. 37. The relief sought for this breach of a simple contract does not come within any of. the recognized heads of equity jurisdiction. The promised bequest, or/and devise, was not to be of any specific money or other personal property, or real property, or a combination of them. The promise was not to leave a fractional part, or a proportional share, or the whole of the estate, capable of specific performance, as in Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773; Schutt v. Missionary Society, 41 N. J. Eq. 115, 3 A. 398; Young v. Young, 45 N. J. Eq. 27, 16 A. 921; Duvale v. Duvale, 54 N. J. Eq. 581, 35 A. 750; Clawson v. Brewer, 67 N. J. Eq. 201, 58 A. 598, affirmed 70 N. J. Eq. 803, 67 A. 1102; Lawrence v. Prosser, 88 N. J. Eq. 43, 101 A. 1040. There was no lien expressly created, nor can the promise be impressed as a lien, and enforced, on any specific property of the promisor's estate. And there was no trust imposed, by the promise, upon the administrator personally as to property to come to her hands, or upon the heirs at law as to the real estate which devolved upon them by law, and none results by legal implication. There is nothing in the promise that fastens it upon any particular property ...