White v. Risdon.

• Decision Date: 05 November 1947
• Docket Number: No. 158/40.,158/40.
• Parties: WHITE et al. v. RISDON.
• Court: New Jersey Court of Chancery

55 A.2d 308

WHITE et al.

v.RISDON.

No. 158/40.

Court of Chancery of New Jersey.

Nov. 5, 1947.

Suit by Martha M. White and another against Grant Risdon for specific performance of alleged verbal agreement of defendant to make a particular disposition of his property by will.

Decree advised dismissing bill of complaint.

Syllabus by the Court.

1. A person may for a valid consideration enter into a verbal agreement to make a particular disposition of his property by his last will and testament.

2. To justify specific enforcement, such an agreement must be shown to be mutual, definite, and certain both with relation to its terms and subject matter.

3. The proof of the agreement must be clear, cogent, and convincing.

4. In the case of an oral agreement normally within the operation of the statute of frauds, there must be evidence of performance of that character which under recognized equitable principles will exclude it from the application of the statute.

Winans, Crane & Crane, of Plainfield, for complainants.

Augustus S. Dreier, of Plainfield, for defendant.

JAYNE, Vice-Chancellor.

It was as early as the year 1854 that Chancellor Williamson determined in this court that a person might for a valid consideration enter into a verbal agreement to make a particular disposition of his property by his last will and testament. The specific enforcement of such an agreement, however, has always been subject to certain evidential requisites. It is imperative that the agreement be shown to be mutual and definite and certain both with relation to its terms and subject matter. The creation of the agreement must be established by clear, cogent, and convincing proof because such alleged compacts, particularly between relatives, are uniformly regarded with suspicion and consequently are exposed to the most critical and circumspect scrutiny. Additionally there must be evidence of performance of that character which under recognized equitable principles will exclude the transaction from the operation of the statute of frauds.

It may be serviceable to cite my collation of the pertinent decisions: Johnson v. Hubbell, 10 N.J.Eq. 332, 66 Am.Dec. 773; Van Dyne v. Vreeland, 11 N.J.Eq. 370; Van Duyne v. Vreeland, 12 N.J.Eq. 142; Davison v. Davison, 13 N.J.Eq. 246; Brown v. Brown, 33 N.J.Eq. 650; Pflugar v. Pultz, 43 N.J.Eq. 440, 11 A. 123; Young v. Young, 45 N.J.Eq. 27, 16 A. 921; Vreeland v. Vreeland, 53 N.J.Eq. 387, 32 A. 3; McTague v. Finnegan, 54 N.J.Eq. 454, 35 A. 542, affirmed 55 N.J.Eq. 588, 39 A. 1114; Riley v. Allen, 54 N.J.Eq. 495, 35 A. 654; Duvale v. Duvale, 54 N.J.Eq. 581, 35 A. 750, modified 56 N.J.Eq. 375, 39 A. 687, 40 A. 440; Winfield v. Bowen, 65 N.J.Eq. 636, 56 A. 728; Cooper v. Colson, 66 N.J.Eq. 328, 58 A. 337, 105 Am.St.Rep. 660, 1 Ann.Cas. 997; Clawson v. Brewer, 67 N.J.Eq. 201, 58 A. 598, affirmed 70 N.J.Eq. 803, 67 A. 1102; Dougherty v. Dougherty, 98 N.J.Eq. 126, 130 A. 833; Lings v. Urquhart, 106 N.J.Eq. 506, 151 A. 391; affirmed 109 N.J.Eq. 131, 156 A. 377; Di Girolama v. Di Matteo, 108 N.J.Eq. 592, 156 A. 24; Scott v. Beola, 111 N.J.Eq. 215, 161 A. 822; Burdick v. Grimshaw, 113 N.J.Eq. 591, 168 A. 186; Ehling v. Diebert, 128 N.J.Eq. 115, 15 A.2d 655, affirmed 129 N.J.Eq. 11, 17 A.2d 777; Hendershot v. Hendershot, 135 N.J.Eq. 232, 37 A.2d 770; Poloha v. Ruman, 137 N.J.Eq. 167, 44 A.2d 411; Hufnagel v. Scholp, 138 N.J.Eq. 16, 46 A.2d 394; Yuritch v. Yuritch, 139 N.J.Eq. 439, 51 A.2d 901.

The point of paramount and salient importance in the consideration of the present cause is whether a verbal contract definite in its terms, as here alleged, has been substantiated by evidence of the requisite provative quality.

To comprehend precisely the presentment of the complainants I quote literatim the allegations of paragraph 3 of the bill of complaint: ‘3. On or about September 15, 1944 (the precise date being unknown to complainant), complainants and defendant duly made and entered into, each with the other, a certain compact and agreement, by word of mouth and not in writing, wherein and whereby it was mutually promised and agreed by and between them that complainants would within a reasonable time thereafter remove from and give up their then home, situate at Port Richmond in the borough and county of Richmond and state of New York, and would move into and take possession of said land, dwelling house and premises of the defendant hereinbefore described; that complainants would thereafter and during and throughout the residue of the lifetime of defendant, board and lodge him and furnish for his use and comfort all necessary food, rooming facilities and personal care; that complainants would, so long thereafter as defendant should live, operate and maintain said dwelling house as a home for defendant and themselves and such other persons as might lawfully be therein, and would pay the current running expenses for food and supplies, water, electricity, gas, heat and other utilities and necessities for the maintaining of said premises as a home for the parties; and that in consideration of such promises and agreements on complainants' part, defendant should and would devise to complainant Martha M. White, and to her heirs and assigns forever, all and singular the hereinbefore mentioned and described land, dwelling house and premises, effective as and of the time of his death; and that defendant should and would make and execute in due form of law, and thereafter maintain and keep in full force and effect until the time of his death, a good and valid last will and testament, whereby said land, dwelling house and premises would be devised to and vested in complainant Martha M. White in fee simple; that defendant would, so long thereafter as he should live, pay all taxes assessed against said premises, and would maintain and keep said land and buildings in good and habitable condition and provide, at his own expense, for the upkeep thereof, and that complainants should not be liable for any rent or other charge for occupancy thereof.’

In 1944 the defendant was a widower approaching 80 years of age and he was residing, with the occasional assistance of a domestic servant, by himself in his home identified as No. 107 Willow Avenue, North Plainfield, Somerset County. The complainants Mr. and Mrs. White, residents of Port Richmond, Staten Island, New York, evidently became interested in his welfare. Mr. White is a nephew of the defendant's deceased wife, and the complainants therefore became accustomed to address the defendant as ‘Uncle Grant.’

The complainants visited and consorted with the defendant at his home on September 10, 1944, on which occasion the complainants declare the alleged agreement was...