#### Lizzie Wilson, Plaintiff, *v.*Maria Heath et al., Defendants.

(Supreme Court, Orleans Trial Term,

June, 1898.)

Specific performance—Oral.promise of a testator to provide for one as if she were, his child and he had died intestate — Trust — Failure of proof.

An oral promise by a testator that, if the promisee would assume his name and live with him as his daughter until her marriage, he would care for her in all respects as if she were his own child, and would give and make over tó her tie same proportion of all his property real and personal as she would inherit by law were she his own daughter and he to die intestate, is, when followed by full performance, -operative and-imposes upon-the property of the testator a trust, enfor.cible in equity against his devisees and heirs-at-law.

Specific performance must, however, be refused where the claimant ■ fails to establish, by clear and convincing proof, a contract 'definite and certain in every essential.

■ Orrin Heath died January 25, 1890, leaving a landed estate of about $22,000, and personal property of the value of about $2*500. The defendant, Maria. Heath, his widow, aged about sixty-eight years, survived him but no descendants. He left a will which was executed March. 13,. 1889,-and admitted to probate March 10', 1890, by the terms of which his widow was made the sole beneficiary and executrix, and she thereafter qualified as such.

The plaintiff was-born in 1860, of poor parents, and was one of several children. When of the *agejoi*about eleven years, with the full consent of her parents she ytent to reside with, and in the family of the testator, where she''remained until her marriage in June, 1888. During the time she lived in the testator’s family she was known and introduced as Lizzie Heath; she became a member of the same church, was educated, clothed and introduced by them ’as a daughter, and so treated and considered up to the time of her marriage. In return she was obedient, assisting in the family house^ *715work, and in every essential performing the duties of an adopted daughter with circumspection, from 1871 to the time of her marriage in 1888.

June 10, 1890, the plaintiff presented a verified claim against the estate of the testator for $35,000. The same was immediately rejected by parol, and thereafter, on June 16, 1890, it was formally rejected in writing. June 11, 1890, an action was commenced in this court by the plaintiff against the executrix of the will of the testator, to recover the amount of the claim so presented and rejected. The complaint contained the" following allegation: “That on or about the 1st day of March, 1871, Orrin Heath, late of Medina, N. Y., made and entered into an agreement with this plaintiff, whereby he promised and agreed in consideration of the plaintiff’s assuming his name, Heath, in the place of her name, Hannan, and of plaintiff’s living with him as his daughter until she should marry, to care and provide for this plaintiff in all respects as if she was his own child, and to pay her the sum of $2,000, and to give her a complete outfit of all needed and proper things with which to go to housekeeping, at such time as she should marry, and the said Orrin Heath further promised and agreed then and there, to give and make over to this plaintiff the same proportion and share of all his property, real and personal, as she would inherit by law were she his own daughter and he to die intestate. That on or about August 20, 1877, the substance of said agreement was reduced to writing and duly executed and delivered by said Orrin Heath to plaintiff.” Then followed allegations of performance by plaintiff, of the agreement alleged, essential to support a money judgment, and breach by the testator. Upon the trial the justice presiding at that time declined to pass upon the validity of the contract, respecting the clause purporting to reserve to the plaintiff a daughter’s share, and limited the issues to the determination of the authenticity of the writing alleged to have been executed by the testator, the recovery thereunder of $2,000, and the value of an outfit. The writing involved in that trial is as follows:

“West Barre, *Aug.*20, x877.

“ This is to certify that Mr. Heath of Medina agrees to pay Lizzie Hannan, daughter of Bobt. Hannan, if she stays with him and goes by the name of Lizzie Heath, and his daughter, he would provide for her in every respect as his own child; if she gets married and settles in life I do bind myself to pay her $2,000, also give her *716a good fit out and she ’will also have a daughter’s share in all that I have.

*“*Obbin Heath.

*“*Robert Hannan, witness. ' " ■

*“*Vm. Hannan, witness.”

The verdict of the jury was adverse to the plaintiff, and the paper writing was thereby declared a forgery and final judgment was entered thereon, June 5, 1891, dismissing the complaint upon the merits. Hpon the trial neither party,, under the ruling of the court, gave evidence respecting the oral agreement of 1871, as bearing on the probable execution of the alleged written agreement.

In January, 1896, this action was brought against the widow of the deceased, individually and as executrix, the devisees and legatees named in his will and heirs-at-law, to' compel the transfer and conveyance of the estate of the testator, exclusive of the widow’s dower interest and distributive share in the personal estate, to the plaintiff. The right to such a judgment' is founded upon a complaint substantially the same as the one quoted, except the alleged written agreement is omitted therefrom, and no claim-is made therein for $2,000 or the value of an outfit. The answer of the widow, Maria Heath, individually and as executrix, puts in issue the parol agreement of 1871 and also contains allegations appropriate to defenses in avoidance. The. court at Special Term upon the application, of the defendant, Maria Heath, made an order formulating a question sufficiently broad to cover the inquiry; .whether or not the parol agreement alleged in the complaint was made by and between the deceased and Robert Hannan, the father of the plaintiff .(acting in her behalf), in March, 1871. The parties had a hearing before a jury, and the question tried and submitted was, ■ by the verdict, answered ih the affirmative. The case was then tried before the court upon all the issues raised by the pleadings.

Whedon & Ryan, and George Raines, for plaintiff.

E. L. Pitts, and S. E. Filkins, for defendant.

Lambert, J.

The finding of the jury is not a final determina- . tion, but evidential only of the issues passed upon and proper to be considered by the trial court upon an- application for equitable relief. It may be adopted or disregarded as justice and a due re*717gard for the rights of the parties demand. Vermilyea v. Palmer, 52 N. Y. 471; Learned v. Tillotson, 97 id. 1; Acker v. Leland, 109 id. 5; Randall v. Randall, 114 id. 499.

The practice enunciated by these authorities permits the consideration and determination of all the facts of the case by the trial court, and it is only when, the conclusion reached by the jury has the support of evidence, of the force and convincing qualities required by the settled principles of equity, that it should be adopted as conclusive, and permitted to control' the result of a controversy of this character. The contract in question, and by this action sought to be established and enforced, is so extraordinary in character and consequent results, that the advice afforded by the verdict should’ not be given conclusive influence in determining the rights of the-parties. Ordinarily deference would and should be accorded the finding of a jury upon a disputed question of fact, but when the-evidence which gives it support is improbable, uncertain and doubtful, the verdict should not- be permitted to dominate the disposition-of the case. The agreement alleged is, in substance, that in consideration of the plaintiff becoming a member of the family of the deceased and remaining until the event of her marriage, in all-respects conducting herself as a daughter, the deceased would educate and clothe her, and, at his death, whatever property he had,, less the legal estate therein of his widow, should become the property of the plaintiff, and provision would be by him. made to effectuate such result. The enforcihility of the agreement is assailed by the defendant for the reason, among others, that at the-inception of the contract relation, and at all times during its performance by the plaintiff, the minds of the parties never met upon-the measure of compensation, in money or specific property, that the plaiutiff was to receive for the services in contemplation, and" "was limited only by the uncertain contingencies of future events; also, that by the terms of the alleged agreement there was no express or implied limitations upon the power or right of the deceased" 'to dispose of his property during his lifetime. . There is reason and" authority to support this contention. Lisk v. Sherman, 25 Barb. 434; Shakespeare v. Markham, 10 Hun, 311; affirmed in Court of Appeals, 72 N. Y. 400; Gall v. Gall, 64 Hun, 600.

In the last case cited, Barrett, J., says: “We have, however, found no case in this state where an agreement to leave the whole of one’s estate, real and personal, to a particular person has been, *718enforced. On the - contrary, there are cases where specific performance of such a contract has been refused.”

The case of Godine v. Kidd, 64 Hun, 585, much relied upon by the plaintiff, presents a statement of facts that substantially quadrate ' with the allegations made by the plaintiff, and the court there permitted execution of the agreement, but put its decision upon the express ground that the judgment would effectuate the intent and purpose of all the parties thereto. In many of the states the more liberal doctrine is adopied, that contracts like the one in question when clearly and unequivocally established and fully executed by one party are enforcible. Jaffre v. Jacobson, 4 U. S. App. 5; McKinnon v. McKinnon, 56 Fed. Repr. (Mo.) 409; Kofka.v. Rosicky, 41 Neb. 328; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 id. 655; Brinton v. Van Cott, 33 Pac. Repr. (Utah) 218.

In the measure of equitable relief to be given to a party who has faithfully performed the obligations of a contract made by the parents of a party while in infancy with parties having no offspring and contracting for parental relations; and where the parties are adults, and, therefore^ presumed to occupy positions of equality in making and performing the contract,' á distinction is manifest- in the cases. Where the services and companionship of infants, during minority, is the subject of contract, attributes of confidence and mutual consideration, arising from affection and acts of kindness, which have no exact measureable quality and yet may constitute the substantial element of-ben.efit in the estimation of the contracting parties, it has been held that execution of such a contract by a court of equity is the only commensurate relief .to the full and complete performance by the infant. The ultimate disposition that I feel constrained to make of this case renders it unnecessary to do inore than to follow the adjudication heretofore made in this action upon the issue of law raised by demurrer to the complaint. It is there decided that the complete and full .performance of the agreement alleged, by the plaintiff and her parents, made the promise on the part of the deceased operative, and a trust was imposed upon' his property which is enforcible in equity as against his devisees and heirs-at-law. Heath v. Heath, 18 Misc. Rep. 521.

The judgment sought in this case if granted will have the result of rendering ineffectual the testator’s will, and passing to the plaintiff the title to all the property left by him1 at- his decease, subject only to the claims made thereto by law for the widow. Justification *719for such a judgment can only he found in a contract fully executed hy the plaintiff, definite and certain in every essential, and made to appear hy (dear and convincing proof, and such is the doctrine of all ■the cases which have been cited by counsel or which I have been able to find. If, therefore, the proof submitted does not bring the case within the rule requiring execution of the contract alleged, then the parties must be left to their redress at law. Lisk v. Sherman, 25 Barb. 434; Shakespeare v. Markham, 10 Hun, 311; affirmed, 72 N. Y. 400; Gall v. Gall, 64 Hun, 600; Godine v. Kidd, 64 id. 585; Nickerson v. Nickerson, 127 U. S. 668; Hennessy v. Woolworth, 128 id. 438; Dalzell v. D. M. Co., 149 id. 315.

A careful examination of the proof drawn from an analysis of the evidence, and the circumstances surrounding the parties, leads me to the conclusion that the plaintiff has failed 'to establish a case justifying specific performance of the contract alleged, within the rule required by the authorities. The proof must be clear and leave no essential element of the contract in doubt. This is the burden placed upon the plaintiff-both by reason and the authorities. To meet it the plaintiff relies upon the evidence given by her father and two brothers, respecting the occurrences which took place between the deceased and her father in the spring of 1871. By them is recited the essential details of an agreement, which, if performed by the plaintiff, entitles her to the entire estate left by the deceased, provided only that both should live until the plaintiff reached the age of twenty-one years. Not only is the promise of the deceased to make the plaintiff the recipient of all the estate that a child of his own blood would take, he dying intestate, made plain and amplified by its varied connection during the course of the examinations, but it is stated by each, with almost uniform precision, when asked how he was to accomplish such a result, the testator replied, that he would do whatever was necessary to pass his property to the plaintiff upon his death.- These three witnesses were sworn in behalf of the plaintiff, in an action to recover the value 'of the testator’s property, upon this same subject, and the record evidence of that trial will be searched in vain for any reference to the subject of making over all of his property, subject to his widow’s right, to the plaintiff; or that he would give to the plaintiff-an estate in the property left by him at his decease, such as a daughter would- inherit, he dying intestate. It is there recorded that they severally testified, in substance, that he, the testator, agreed, he would do by the plaintiff as if she were his own daughter, and further that she should have a daughter’s *720share in all his property. Why this discrepancy in the two records containing the testimony of these witnesses upon the same subject? So far as the evidence of the brothers William and 'John, is concerned, this fatal disparity cannot be excused as an accident, for their-evidence on each occasion was taken by commission, in advance of the trial, and they were severally requested to detail the entire transaction in question. Hpon the record made upon the .former trial all must concede that the agreement between the testator and the 'plaintiff’s father, as' indicated by the plaintiff’s evidence, was so uncertain that it could not be made th'e subject of execution by a court of equity. The limit of obligation imposed by the recorded promise of the testator, was to give the plaintiff a daughter’s share in all of his property. The undertaking, thus assumed, left it optional with the testator to reward the plaintiff as he would- a daughter, depending upon events which' were then unknown and unknowable; while the obligation and duty imposed by the contractual relation now detailed, impose .an imperative requirement to make over whatever property which existed at th'e time of his death to the plaintiff. The -conflict in this evidence is irreconcilable and so far discredits the evidence of these three witnesses, that, if otherwise uncontradicted, it could not be made the basis, of the decree sought -by the plaintiff -in this, case. Events of remote date, in detail, cannot be expected to be within the memory of a witness, and, in some part, circumstances attending a given occurrence may be reproduced in haze; but, if involving matters of interest, We must expect and require substantial memory of the substance. The unreliability of the-evidence of the witnesses referred to is again disclosed and made manifest-by the terms of the alleged written and executed agreement by the testator, bearing date August 20, .1877. The complaint in the former action contained the allegation that the parol agreement of 1871 was, in" substance, reduced-to writing by the parties in 1877, wherein it was provided- that the testator should pay to the plaintiff the sum of $2,000 and -furnish her a good, outfit, in the event of her marriage before the death’ of the testator; and further that she should' have a .daughter’s share in his property. This allegation' had "the support of the evidence of -the witnesses mentioned, and the remarkable instance is presented, that no reference is made upon either'trial, in the detailed account of the occurrences of 187lj to the promise of the testator to pay to the plaintiff $2,000, or furnish her an outfit. If, as .alleged, the written agrees' ment of 1877 was intended as evidential only of the parol agreement *721of 1871, it is incomprehensible that such important provisions should have been omitted or forgotten. It is equally pertinent to note the absence from the writing, of any undertaking by the testator to give to the plaintiff and make over to her his entire estate subject to the legal claims of his widow. In this respect the writing is in harmony with the evidence given on the former trial upon that subject, and in conflict with the version now detailed.

The theory of the defendants, that the plaintiff became a member of the testator’s family upon the understanding that for the services she might render during her minority, the testator would maintain, clothe and educate her, is more acceptable than the position sought to be maintained by the plaintiff. It has the support of the witness Fuller, who was present when the arrangement was made, and the well-nigh conclusive support of probability. It overtaxes the credulity of one to adopt the assertion that the testator, after passing nearly an expected life with the companion of his choice, who had aided him in his every endeavor to accumulate his moderate property, should, without the imposition of any condition for her support and maintenance, in the event she should outlive him, agree to turn over his entire estate to a person with whom and whose parents he- had not the slightest acquaintance. It is incredible. He knew nothing of her disposition, or whether she might develop to be an agreeable companion for either his wife or himself. No inquiry was made respecting her habits, temperament or life, or respecting her parentage, and yet we are asked to believe that he selected her as his only beneficiary to the exclusion of his wife, in the event she and his wife survived him. A conclusion involving such ingratitude and inhumanity must have better support than is found in the record in this case, before I can adopt it. It is possible that it is true, but improbable.

The claim is made that the evidence of the father and brothers of the plaintiff find adequate corroboration, to satisfy the requirements made essential to specific performance, in the treatment of th'e plaintiff by the testator and his wife as a daughter, and the faithful conformity by her in return to an affectionate and obedient regard, as well as the admissions of the testator respecting the affection that he entertained for her at various times. Undoubtedly, the plaintiff by her submissive conduct, affectionate obedience and attractive ways, grew into the life of the testator and his wife, and a just pride by them in the development of her tastes, habit and character was but a natural result. The declaration that she was his daughter and *722should eventually have all that he. or they had is equally as consistent with an expression of present "gratification and attachment, as with attributing to the testator a disclosure of his contract obligations made years before. The. expression by the testator that he' regarded the plaintiff the same ¿s he would his own child, and that he intended she should have his estate, has no necessary or logical connection with an agreement requiring such a disposition of his property. On the contrary it was the declaration of his present feeling and purpose, and as such could have no creative force ¿s a contract obligation. The undisputed fact that the- plaintiff rendered faithful service to the testator and his family through a long period - of time, gives rise to an -instinctive sense of.justice that she. should have some measure of relief, but when the evidence is* analyzed fin - the light of established rules.applicable to a case of this character, the injustice which would result from the enforcement of the agreement becomes at once obvious.

The complaint should be dismissed upon the merits, but without costs to either-party. .

Complaint dismissed, -without costs to either party.