Opinion
Argued February 28, 1908
Decided March 13, 1908
Henry W. Williams for appellants.
J.A. Kellogg and Erskine C. Rodgers for respondent.
The judgment now before us for review enforces a contract relating to the right of inheritance so as to take away from the natural heirs of a dead man a large portion of his property and confer it upon a stranger to his blood. The contract, however, in this case differs from those made with a similar purpose which we have recently condemned so severely, in that it was in writing and the writing was proved beyond question and without dispute. No claim of fabrication or fraud is made by any one. There is no law, except that which protects the right of dower, to prevent a man from making a contract in his lifetime affecting the disposition of his property after his death, but as we have repeatedly held such contracts should be in writing, or established by disinterested witnesses, and should be fair and equitable or a court of equity will not enforce them. ( Hamlin v. Stevens, 177 N.Y. 39; Rosseau v. Rouss, 180 N.Y. 116; Roberge v. Bonner, 185 N.Y. 265; Holt v. Tuite, 188 N.Y. 17, 22.) A father unable to provide for his infant child, may transfer the custody, control and the right to the services thereof to another, subject to the right of a court of equity to interfere in the interest of the child. The mutual promises, therefore, of the parties to the instrument before us furnished an adequate consideration to support it.
In pronouncing judgment in this case we shall wholly disregard the parol contract found by the trial court, and confine our attention exclusively to the written agreement, without resorting to the oral evidence for any purpose except to discover the situation and conduct of the parties when they wrote what we are now called upon to construe. ( Thomas v. Scutt, 127 N.Y. 133, 141.)
By that agreement the father, who was the sole surviving parent, transferred the right to the custody, control and services of his infant daughter for a limited number of years. The consideration named for the transfer is a covenant to adopt the child and to support, educate and maintain her until she reached a certain age. The contract further provided that the child should remain with Ordway and wife, and submit to their government until she became eighteen years old, "when," to repeat the words of the parties, "she shall be entitled to her dower right to the property of the said James and Mary Ordway, the same as though she were their own legitimate offspring."
While the contract is not binding upon Mrs. Ordway because she did not sign it, since it was executed and delivered by Mr. Ordway and Mr. Stanton as a complete instrument, it was binding upon them and also upon the child, for it was authorized by law. It was duly performed by both father and daughter and Mr. Ordway was bound to perform, at least to the extent within his power. He could not adopt the child without the consent of his wife and it does not appear that she ever consented. (L. 1873, ch. 830, § 3; L. 1896, ch. 272, § 61.) At all events no order of adoption was made by the court having such matters in charge, and the child was not legally adopted. The rest of the contract was kept by Mr. Ordway as long as he lived, but upon his death the question arose as to what the parties meant by the clause quoted above. The difficulty in learning the meaning springs from the word "dower," as used in the covenant of Mr. Ordway. The contract was not drawn by one learned in law and obviously that word was not used in its ordinary sense, for even an own daughter can have no dower right in the property of her father. Dower ordinarily means the interest which the law gives to a widow in the lands of her deceased husband and it can have no application to the relation of parent and child. It is frequently used to express an inchoate right, which does not ripen until death. If limited to its technical meaning it would confer no right whatever, yet the parties intended that some right should be created thereby and that right related to the property of Mr. Ordway. Under these circumstances we must search the context and look at the situation of the contracting parties for a solution of the question.
What subject were they dealing with? Clearly not with the right of a widow, but with the right of a child. The rights of the natural father were being transferred to a foster father and provision was being made for the welfare of the foster child. Her support and education had been provided for in the forepart of the instrument, and the parties evidently intended to make some provision for her with reference to the property of Mr. Ordway. Thenceforward she was to sustain to him the relation of a daughter and he was to sustain to her the relation of a father, "the same as though legitimately" his "own child." This suggests the nature of the provision intended, but the subject is not left to suggestion merely, for a phrase immediately follows which shows what the parties meant. "Her dower right to the property" of Mr. Ordway was to be "the same as though she were their (his) own legitimate offspring." Thus the right conferred is first defined by the word "dower" used as an adjective, which, as we have seen, in its technical sense is without practical meaning, and it is also measured by the phrase just quoted, which is, in effect, a definition by comparison. "Her dower right," therefore, was to be such a right "to," not in, the property of Mr. Ordway "as if she were his own legitimate offspring." What is that right? Simply the right of inheritance, which a child has according to the laws of the state, provided the father dies intestate. A father may make a will and disinherit his child, but if one is not made the law takes its course and his child succeeds to his property. Mr. Ordway could have made a will and left the plaintiff nothing, for the contract did not prevent it. He could have made a will and left her something, the same as if the agreement had not been entered into, but he was under no obligation to make a will, for he had not agreed to. If he made no will, however, his agreement, as we read it, was that his foster child should have the same right of inheriting his property as if she were his own child. Thus the right which Mr. Ordway intended to confer upon the plaintiff was that of a legitimate child to inherit from him if he died without a will, not an exclusive right, but the right to take her aliquot part if he should have children born to him. She takes, not by the law of succession, but by contract, to the same extent that a natural child would take according to the law of succession. The context, the situation of the parties and their general purpose in making the contract show that the words "her dower right" mean the right of the plaintiff to inherit the same as if she had sprung from his loins or had been lawfully adopted, as he agreed she should be. Whether we ignore the word "dower" altogether as meaningless, or give it the definition that the parties gave it by using the phrase which they regarded as equivalent in meaning, the same result follows. They were creating the relation of parent and child by contract between persons who did not sustain that relation to each other by nature, and the foster father agreed that his foster child should have "her" right in his property, which he defined by saying that it should be the same as though she were his own legitimate offspring. Without the word "dower" the meaning would be clear beyond question, and with that word as interpreted by the phrase which defines it, when both are read in the light of surrounding circumstances, the meaning is reasonably clear. Every word the parties wrote, except the word "dower," tends toward one conclusion, and effect must be given to the obvious intention, notwithstanding that word. We must either disregard the language of the parties altogether, and thus subvert an important part of their contract, or read it in view of the status which it was the object of the contract to create, and construe it to mean the right of inheritance that belongs to a legitimate child as well as to a lawfully adopted child, by the law of the state.
The word "when," as used in the sentence quoted, causes no embarrassment, as that marks the date when the plaintiff, if she kept the covenant made for her by her father and he kept the covenant made in his own behalf, would attain the right to inherit, "the same as * * * legitimate offspring," which is upon the death of the parent without a will. If Mr. Ordway had died before she became eighteen, she would have taken nothing, but as he lived until she reached that age, she takes as an own child, except, as the trial court held, as against his widow. Since Mrs. Ordway did not sign the contract the court was of the opinion that it had no effect as against her, and, hence, the judgment rendered gives her the same rights in the property of her husband as if the contract had not been made, or one-half of the personal property instead of one-third. No complaint is made by any one as to this feature of the judgment.
Upon the trial the court received, subject to objection and exception, oral evidence of what was said by Stanton and Ordway when they gave the scrivener instructions which led to the preparation of the instrument in question. That evidence was incompetent, because when the paper was signed the previous conversation became merged therein and no longer had any existence in law. ( Mahaney v. Carr, 175 N.Y. 454, 461.) There was no latent ambiguity to open the door to proof of what the parties said. The evidence, however, did no harm, because the trial was before the court without a jury, and the oral contract, which had precisely the same meaning as the written contract when properly construed, is neither sanctioned nor enforced by our judgment. We decide the case on the face of the written instrument, which was not disputed, and which is the only contract that the law recognizes as having been made. While the conversations were inadmissible for the reason given, the circumstances surrounding the parties when they signed the instrument were properly shown to prove delivery ( Chouteau v. Suydam, 21 N.Y. 179) and for the purpose of enabling the court to see whether their situation reflected light upon the words used in reducing their agreement to writing. ( Thomas v. Scutt, supra). In other words, while the law excludes parol evidence of their expressed intention, it receives evidence to show their situation and the occasion which led to the contract.
While we find error in the record, we find none calling for a reversal, and, therefore, the judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., GRAY, HAIGHT, WERNER, HISCOCK and CHASE, JJ., concur.
Judgment affirmed.