Woods v. Evans

• Decision Date: 05 February 1885
• Citation: 113 Ill. 186,55 Am.Rep. 409
• Parties: SARAH WOODSv.MARY EVANS et al.
• Court: Illinois Supreme Court

113 Ill. 186

55 Am.Rep. 409

SARAH WOODS

v.MARY EVANS et al.

Supreme Court of Illinois.

Filed at Mt. Vernon Feb. 5, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.

Mr. R. F. WINGATE, and Mr. J. B. BOWMAN, for the appellant:

The contract is not uncertain. A “child's part” of an estate imports as large a part, or such share, of the estate of the deceased as a child would take under the Statute of Descents.

The generality of express provisions is supplied and obviated by implications of the law. Pomeroy on Specific Per. sec. 161.

A party may bind himself to dispose of his estate, and it will be enforced against his heirs after his death. Leeders v. Austry, 4 Ves. 501; 3 Sandf. Ch. 279; 41 N. Y. 485; 30 Mo. 396; Gupton v. Gupton, 47 Mo. 40; Johnson v. Hubbell, 10 N. J. Eq. 335; Sutton v. Hayden, 62 Mo. 101.

A contract to make mutual wills, for like reasons will be enforced if one of the parties has died having made a will in conformity with the contract, and the survivor has enjoyed the benefit of the will thus made. Story's Eq. sec. 785; Dufour v. Pereria, cited in Walpole v. Oxford, 3 Ves. 412; Newell on Contracts, chap. 6, p. 711; Hinch v. Simmons, 4 Ves. 160; Fry on Specific Per. sec. 678.

Mere inadequacy in price or subject matter of the contract will not prevent the enforcement of a contract. Pomeroy on Specific Per. secs. 192-195; Viele v. Troy & Boston, 21 Bart. 381; Adams' Eq. (6th Am. ed.) 78, 79.

Short's promise operated as a continuing request, and compliance with the request on the part of the complainant was a sufficient consideration for the promise. 2 Smith's Leading Cases in Eq. 1082; Railroad Co. v. Evans, 6 Gray, 26; Perkins v. Hadsell, 50 Ill. 216.

A parol promise by a father to convey to a child when the child takes possession and makes valuable improvements, will be enforced. Kurtz v. Hibner, 55 Ill. 514; Bright v. Bright, 41 Id. 97; Bohanon v. Bohanon, 96 Id. 591. And a promise in consideration of personal services is enforcible in equity. Warren v. Warren, 105 Ill. 576; Story's Eq. Jur. sec. 761; Allen v. Cerro Gordo County, 40 Iowa, 349; Cooper v. Pena, 21 Cal. 404; Pomeroy on Specific Per. secs. 167-172, note 1.

Complainant does not claim as an heir, but under a contract, and hence Keegan v. Geraghty, 101 Ill. 26, has no application.

That a specific performance is governed by fixed principles, and not by an arbitrary discretion, see Hetfield v. Willey, 105 Ill. 286.

Mr. M. W. WEIR, and Mr. W. C. KUEFFNER, for the appellees:

The contract is not mutual, and therefore can not be enforced. Pomeroy on Specific Per. secs. 162-166.

Specific performance rests upon a sound legal discretion. Railroad Co. v. Schoeneman, 90 Ill. 258; Alexander v. Hoffman, 70 Id. 114; Morse v. Jones, 73 Id. 508.

The contract must be founded on a good consideration, and it must be reasonable, fair and just. Lear v. Choteau, 23 Ill. 39; Stone v. Pratt, 25 Id. 25; Fish v. Lear, 69 Id. 394; Pomeroy on Specific Per. secs. 175, 179, 185. The contract must not be uncertain in any of its parts. Bowman v. Cunningham, 78 Ill. 48; Gosse v. Jones, 73 Id. 508; Pomeroy on Specific Per. sec. 157; Story's Eq. Jur. secs. 764, 767.

A “child's part” is vague and uncertain as to the share or interest to be taken. Wallace v. Rappleye, 103 Ill. 249; Graham v. Graham, 31 Pa. St. 475.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by Sarah Woods, to enforce the specific performance of an alleged contract with one John Short, now deceased. A second amended bill was filed, to which a demurrer was sustained, and the complainant electing to stand by her bill, the court ordered the bill dismissed. The question for determination is the sufficiency of the bill.

It is alleged in the bill that on the 20th day of May, 1847, the complainant was an infant orphan, eleven years of age, and the inmate of a charitable institution in the city of St. Louis, and under the immediate charge of Sister Benedicta; that one John Short, who then was a married man, childless, but possessed of property of the value of about $20,000, applied to the institution to take her into his service and employment; that thereupon, to-wit, on the 20th of May, 1847, at said city of St. Louis, at the special instance and request of said Short, and by and with the consent of said Sister Benedicta, and of her, the complainant, a contract, in writing, was then and there entered into by and between said Short and the complainant, and signed by him by his mark, and by said Sister Benedicta on the part of the complainant; that by the terms and stipulations of the contract it was understood and agreed by and between said Short and the complainant, in substance and to the effect, that she, the complainant, should enter into the service of him, said Short, and with him live and continue to live from thence to and until she should become eighteen years of age, and that for and during all that time she should well and faithfully serve and obey him, said Short, as a good and orderly servant and as a dutiful child should, in all respects, and in all such lawful business and employment as she should be put to do or perform by the direction or command of him, said Short; and that in consideration of the promises and undertakings so to be done, fulfilled and performed by the complainant, he, Short, undertook and faithfully promised the complainant to take her from said institution into his service, adopt her into his family, support, maintain, educate and instruct her in all the employments and business in which females were ordinarily occupied, and leave and give her, at his death, a child's part of his estate. The bill further alleged that the complainant performed the matters on her part to be kept, and that when Short died, in the year 1877, he left a large estate, of the value of about $25,000, the bulk of which, after some minor bequests, he, by his last will and testament, devised to his sisters and niece. It is also alleged in the bill that the contract, when it was entered into, was placed in the hands of Short, for safe keeping, but that (the complainant believing, charged the fact to be,) the contract has been lost or destroyed, and that she can not produce it to the court, or make it a part of her bill. The complainant, among other things, prays that the estate, real, personal and mixed, that may remain after the payment of all claims allowed against it, and the said items of $200 and $100 to the priests, shall be decreed to and be vested in her, and for such other and further relief in the premises as might seem fit, and to justice and equity appertain.

The specific performance of a contract, in equity, is not a matter of right in the party, but a matter of sound discretion in the court, which may grant or deny relief, as may appear equitable under all the facts and circumstances of the case. (Story's Eq. Jur. sec. 769.) A contract which is not certain, and which is not fair and just in all its provisions, will not be specifically enforced, by decree, in a court of equity. Story, in the section supra, says: “An agreement, to be entitled to be carried into specific performance, ought to be certain, fair and just in all its parts.” It is also a well settled doctrine, where an attempt is made to effect a distribution of property different from that provided by law, by a contract resting in parol, the evidence relied upon to establish such a contract is looked upon with jealousy, and should be weighed in the most scrupulous manner. ( Wallace v. Rappleye, 103 Ill. 229.) Here, the contract set up in the bill is nothing more than a verbal contract. It is alleged that the contract was reduced to writing, but it has been lost or destroyed. The contents of the agreement will have to be established by parol evidence, and it stands in no better light and occupies no better position than it would occupy if it had never been reduced to writing.

The contract set up and relied upon in the bill is very peculiar. By its terms and provisions, as set out in the bill, Short, who, at the time of the making of the contract, was worth about $20,000, agreed to adopt complainant into his family, support, educate and instruct her in all the employments and business in which females were ordinarily occupied, and leave and give her, at his death, a child's part of his estate. The compensation which Short was to receive for what he undertook to...