Fitzpatrick v. Michael

Offutt, J., delivered the opinion of the Court. In the summer of 1936, Marie Ellen Fitzpatrick, a native and resident of Harford County, who was then about fifty-two years old, was employed by Orion C. Michael, of Aberdeen, in that county, as a practical nurse for his wife, who was an invalid, and she remained in that employment until the wife’s death in February, 1937. Upon Mrs. Michael’s death, Miss Fitzpatrick informed her employer that she was about to leave his home, and Michael, who was then about seventy-six years only, and apparently in uncertain health, asked her to wait a few days, that he wanted to talk over his plans for the future with her. She did remain and a few days later he spoke to her of his age, told her that he had no relatives or friends, and that “he wanted company and some one to look after and take charge of his home, -his flowers, drive him around in the automobile, care for him when he was sick or needed attention, and, as she had been so kind and attentive to his sick wife, had rendered her such valuable services in nursing and caring for her for about five or six months in the last months ²⁵¹ of her life, that he wanted the complainant to remain with him the balance of his life, and take full charge of his home, nurse him when it was necessary, look after his flowers, drive him around in the automobile and be company for him, that while he could not pay her much money, only eight (§8.00) per week, that if she would stay, that in addition to the eight dollars (§8.00) per week, that his home on the said Bel Air Avenue would be her home with board as long as he lived, and that he would make a will that upon his death his home property, with all the furniture and furnishings, should be hers for the balance of her life, and that his automobiles would be hers absolutely.” Miss Fitzpatrick accepted the offer and continued to serve Michael under the contract until April 6th, 1939, when he terminated the employment.

During that period Michael appears to have been entirely satisfied with her services and she took “full charge of his large home, looking after his flower garden, the furnace in his residence, driving him to his office and back daily, as well driving him on pleasure and business trips of many thousand miles on a trip, nursing him at times when he would be confined to his bed for as long as four or five weeks at a time, as well as looking after him both daily and at night from causes such as arterial schlorosis that comes with age, a heart with a missing beat, as well as on many nights required to keep hot water bottles to his back and feet all night to make him a little comfortable, all of these services the defendant apparently appreciated and valued by telling the neighbors what a wonderful nurse and housekeeper the complainant had been, and if it were not for her, he did not know what he would do, for he was not on very friendly terms with the distant relatives, who did not visit him, and several did not speak to him.” In March, 1939, she drove him to Miami, Florida, accompanied him to Cuba, and drove him back to his home in Aberdeen, and on their return he had the following personal item published in a local newspaper: “Mr. O. C. Michael, prominent business man of Aber ²⁵² deen, and Miss Mazie Fitzpatrick, also of Aberdeen, have returned to their home after a vacation of several weeks in Florida. The trip was made by automobile, Miss Fitzpatrick driving the entire distance of 4,400 miles without the least mishap either with motor or tires. Cuba was also visited.” To carry out his undertaking, Michael, in the summer of 1987, executed a will in which he left to Miss Fitzpatrick his home and its furnishings for life, and his automobiles absolutely. Then on or about December 21st, 1938, he executed a second will with her consent, in which he changed the term of her tenancy from life to fifteen years.

Finally he executed in March, 1939, a third will, in which, while making changes as to other bequests and devises, he left the provisions affecting her unchanged. After the trip to Florida, Michael’s attitude towards Miss Fitzpatrick underwent a complete and, to her, highly objectionable change. On April 4th of this year he left his home for his office and did not return, although so far as she knew their friendly relations were unchanged, and on April 6th he attempted to force her to leave the home by cutting off the light, water, heat, and telephone, and also the food supplies, and when that blockade proved ineffective, he had her arrested for trespass, and while she was under arrest he locked up the house, so that she was unable to enter it, although she had property of her own in it. Miss Fitzpatrick attributes the change to the jealousy of relatives, for she alleges “the defendant until he left his home as aforesaid had been carrying out his promises under his said agreement for valuable services rendered and to be rendered until his death, with the exception that he had not fully paid her the weekly wages due, and no doubt would have returned to his own home as he always did, but for the jealousies of some distant relatives, who succeeded in keeping him away from his home by making him believe the courts would not allow him to return, until they had so poisoned his mind against your com ²⁵³ plainant to take steps to force her out of his home, that the respondent stated that the reason he did not return to his home was because he was under the law and could not return, notwithstanding the complainant was ready, willing and able to provide him with all the comforts, nursing, and the necessary attention for properly looking after and caring for him, and would have been glad to have continued to perform her agreement with the respondent for his comfort.” Following her removal from Michael’s home, Miss Fitzpatrick on May 9th of this year filed the bill of complaint in this case against Michael, and in it, after alleging the facts which have been stated, she asked that the respondent be required to specifically perform his contract with her, and that a receiver be appointed to take charge of “all the estate, both real and personal, of the respondent, to collect all money, rents, etc., and to pay this complainant the weekly sum of eight dollars ($8.00) per week as long as the respondent lives, and to provide her in the respondent’s Aberdeen residence a home with board and lodging so long as the respondent lives, upon the complainant looking after the respondent’s home, flowers, driving his automobile, and nursing and caring for the respondent in compliance with her said agreement, with the said respondent.” The defendant demurred to the bill for a general want of equity, the demurrer was sustained and the bill dismissed, and from that decree the plaintiff appealed.

There can be no possible doubt that upon those facts the plaintiff should be entitled to some relief against the defendant, but the question in this case is whether the remedy is in equity. A contract to make a will is not invalid because of its subject matter (69 A. L. R. 18 et seq.), for, since one may bargain, sell, give away, or otherwise surrender every right and property interest which he has, there can be no sound reason why he cannot also validly agree to dispose of it by will. Ibid; Lorenzo v. Ottaviano, 167 Md. 138, 144 , 173 A. 17 , 179 A. 536 . Nor, since Michael ²⁵⁴ may not have lived for a year after it was made, can it be said that, apart from any question of part performance, that the contract is invalid because it was not em-( bodied in a writing signed by the party to be charged, as required by clause 5 of the fourth section of the Statute of Frauds (Alexander’s British Statutes, pp. 511, 534), because there was a possibility that it might be performed within a year.

McGrath Co. v. Marchant, 117 Md. 472, 479 , 83 A. 912 ; Ellicott v. Turner, 4 Md. 476 ; Horner v. Frazier, 65 Md. 1, 12 , 4 A. 133 ; Cole v. Singerly, 60 Md. 348, 353 ; Browne on Statute of Frauds, sec. 273 et seq.; Warren v. Ayres, 126 Md. 551, 557 , 95 A. 52 . But, as it relates to an interest in land, it is within clause 4 of the section (Hamilton v. Thirston, 93 Md. 213, 218 , 48 A. 709 ; Semmes v. Worthington, 38 Md. 298 ; Coe’s Alexander’s Brit. Stat. 720 et seq., and cases there cited), and unenforceable unless the bar of the statute is removed. Fry on Spec.

Perf., sec. 561 et seq. That may be done by sufficient proof that the plaintiff has performed it in part, and is willing and able to continue to do those things which under it she undertook to do. Ibid.; Coe’s Alexander’s Brit. Stat. 696 et seq.; Lorenzo v. Ottaviano, supra; Neal v. Hamilton, 159 Md. 447, 448 , 150 A. 867 .

The doctrine of part performance, however, is peculiar to equity, and may not be invoked in courts of law (Hamilton v. Thurston, supra, 93 Md. page 219, 48 A. 709 ), so that, unless the facts present a case of equitable jurisdiction, the appellant has no remedy on the contract either at law or in equity. 69 A. L. R. 20. But no ground of equitable jurisdiction can be found in the facts stated, unless it be that she has no adequate remedy at law. But even though there is no adequate remedy at law, equity will not, ordinarily, specifically enforce a contract for personal service, for these reasons, one, that the mischief likely to result from the enforced continuance of the relationship incident to the service when it has become personally obnoxious to one of the parties is so great that the best interests of society require that the remedy be refused (Fry on Spec. Perf. ²⁵⁵ [5th Ed]., secs. 110, 112), for, as stated by Fry, “The relation established by the contract of hiring and service is of so personal and confidential a character that it is evident that such contracts cannot be specifically enforced by the court against an unwilling party with any hope of ultimate and real success; and accordingly the