Opinion
October Term, 1901.
David N. Salisbury and W.W. Armstrong, for the appellant.
Richard E. White, for the respondents.
Judgment affirmed, with costs, on opinion of DUNWELL, J., delivered at Special Term.
All concurred.
The following is the opinion of DUNWELL, J., delivered at Special Term:
The foregoing actions were tried together, the same evidence applying to each.
From a careful reading of the decisions of the courts of this State I am convinced that the plaintiffs do not present such a case as entitles them to judgment.
The contract sought to be established depends wholly upon the testimony of Mrs. Irish, the wife of one of the alleged parties to the contract, since deceased, who is interested for her children, who are the real parties in interest to the extent of one-half of any recovery in the event of plaintiff's success.
There are a number of reasons why she may be mistaken about a contract having been made. It may be true that what she supposes became a contract was considered and talked over; that the Ripsom brothers acceded to the sale of their interests upon the supposition that Och, at his death, would be more apt to leave his property to them than any one else, they being his only relatives in this country at that time. Och himself may have said so, and yet may not have entered into a contract to that effect.
There are obvious facts and circumstances tending to contradict the making of a contract. No writing was drawn, although it was necessary to resort to writings in conveying the property. So long as a part of the transaction required a writing, why was plaintiff's important interest in the transaction left to memory only? Each of the plaintiffs, at the time of the conveyance, received a cash consideration of $400. This is, in some degree, inconsistent with the idea of other consideration.
"Alleged oral dispositions of estates, to take effect in the future or after death, should not be found or supported, unless established by abundant evidence of the most satisfactory and convincing character." ( Gaylord v. Gaylord, 7 N.Y. St. Repr. 703; Edson v. Parsons, 155 N.Y. 555; Gall v. Gall, 64 Hun, 600.)
The evidence in this case, in my judgment, falls below the requirements of these authorities.
The cases in this State, where parol agreements have been enforced by specific performance, are where the party invoking the aid of the court has performed labor or made improvements upon property, or rendered consideration following the bargain or in pursuance of it. Here, the only consideration moving from the plaintiffs was a present one; the parting with their title. They can't support their contention, as has been done in most reported cases, by acts done subsequently, that could only be explained upon the theory that what was done was in pursuance of a contract, thereby supporting the alleged existence of a contract. This contract is devoid of such support.
If, however, the evidence was sufficient to establish the contract in controversy in this case, it has not been the practice of courts of equity in this State to enforce such a contract by reason of its uncertainty. It permitted deceased to possess, control and absolutely dispose of his property so as to divest himself of all title thereto during his life if he saw fit, leaving it uncertain whether he would have any property at his death.
In Shakespeare v. Markham (10 Hun, 324) it was said: "It was not specifically agreed in what manner the property of the testator was to be conveyed or secured to the other parties. It was to be used and controlled by him during his life. There was no restraint by the supposed contract upon the testator's power to dispose of the same or any part thereof during his life, and the amount which he should leave at his death was, therefore, wholly uncertain. The contract, therefore, by reason of its uncertainty was one which a court of equity would not be under the necessity of compelling performance of."
I must hold that the evidence is not sufficient to establish the contract, and that such a contract cannot be enforced in this court by reason of its uncertainty, and that the complaint must be dismissed in each case, but with costs to defendants in one case only.