Opinion
February 7, 1919.
Joseph M. Proskauer [ Wesley S. Sawyer with him on the brief], for the appellant.
I.R. Oeland [ Julius Schwartz, David Bennett King, Albert R. Lesinsky and Arnold S. Furst with him on the brief], for the respondents Michael Furst, individually and as administrator, etc., and others.
This court has recently considered the question of the power and duty of a court of equity with regard to contracts providing for the disposition of property at the death of one of the contracting parties, and has stated the rule that such contracts, if established by clear and convincing testimony and supported by adequate considerations, should be sustained, and performance compelled by the heirs of the decedent. ( Matter of Hermann, 178 App. Div. 182; affd., without opinion, 222 N.Y. 564; Hermann v. Ludwig, 186 App. Div. 287.) The equitable principle sustained in these cases has been established by a long line of decisions, cited in the cases referred to. The difficulty which has often been found in enforcing such contracts has been in the lack of evidence of the agreement itself. ( Rastetter v. Hoenninger, 151 App. Div. 853; revd., on other grounds, 214 N.Y. 66.) In the case at bar we have no difficulty in finding the contract, which is in writing signed by both parties, and it is the contract obligation which is enforced in equity. It is not essential to the intervention of a court of equity in order to prevent the accomplishment of wrong that an agreement should be established by direct evidence. It may be established from such facts and circumstances as will raise an implication that it was made, and may have reinforcement from the evidence of the conduct of the parties at the time and subsequently. It is unnecessary to cite here the many cases bearing upon the questions here involved dating from Dufour v. Pereira (Hargrave's Jurid. Arg. 304; 1 Dick, 419) in 1769, and Judge WERNER says in Phalen v. United States Trust Co. ( 186 N.Y. 178) the principle "was not then new." While most of the cases refer to testamentary disposition of property, it is the contract of the parties which is enforced. If a valid contract is established, performed by the contracting parties during their lives, equity holds the next of kin or survivors of one of the contracting parties deceased, trustees for the execution of the agreement. If the plaintiff in the present case, upon the death of her associate and partner, had taken possession of the real and personal property of the decedent, and instead of recognizing that her right to it was for life only, to be used for her maintenance and support, had attempted to waste it or transfer it to her own family by deed or will, can it be doubted that a court of equity would interfere to protect the remainder interest of the Furst family? The situation would be almost identical with Rastetter v. Hoenninger ( supra).
The complaint in this case alleges a contract, consideration and performance by both parties down to the death of Miss Furst. It is alleged that her next of kin, contrary to its provisions, have taken possession of the property of the decedent, excluding the plaintiff, refusing to allow her to continue in possession and to perform her obligations. The plaintiff should have been permitted to try her case and prove the facts alleged, if she can prove them, so that the court might properly settle and adjust the rights of the parties interested.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
RICH, PUTNAM and JAYCOX, JJ., concurred; JENKS, P.J., not voting.
Judgment reversed and new trial granted, with costs to appellant to abide the event.