Neal v. Hamilton

Parke, J., delivered the opinion of the Court. George W. Ware died intestate, leaving surviving him five nieces and a nephew as his sole distributees and next of kin. His estate consisted of leasehold property and other personalty, which his niece and administratrix converted, and,, after discharging all debts and the charges incident to the-administration, there remained for distribution between $14,000 and $15,000. The nephew and nieces asserted that they were entitled as the next of kin to- be distributed the whole of this residue, while Laura -C. Hamilton claimed that the entire fund was distributable to her by force of a subsisting contract with the intestate.

Because of these conflicting demands Laura 0. Hamilton began a proceeding in equity against the administratrix to establish her right to the-estate for distribution and to obtain a decree for its delivery to her. The parties took their testimony, with the exception of a single witness, before the chancellor, who- later passed a decree adjudging the plaintiff entitled to the amount of’ the estate for distribution. The evidence showed that the intestate died on July 5th,. 1928, at the age of seventy-five or seventy-six years, and that his wife, who- was the grandmother of the plaintiff, had died three years before, leaving the old widower alone in the-home.

He made successive and unsuccessful attempts to put his domestic affairs upon a permanent basis, and finally, he had a German girl, who- was alien in speech and in cooking. In order to put an end to the- discomfort her service entailed,, and to- secure at once a permanent housekeeper and congenial companion for the closing days of his life, the intestate- ⁴⁴⁹ sought the plaintiff, whom he held in affectionate regard beyond that entertained for his blood relatives. At this time the plaintiff lived in New Jersey with her sister, where she supported herself and her mother. The plaintiff was thirty-six years of age, and was employed as a waitress in a restaurant, and her weekly earnings ranged from $35 to $55, out of which she paid her sister $20 weekly for the board of herself and mother.

In exchange for the existing regular hours, fair wages, with no executive responsibility, the dislocation of her family and social ties, and the surrender of her independence in service and of her freedom of movement, the evidence affirmativly established that the intestate offered, and she accepted, a contract, which she wholly executed, but he partially performed, and left the major part breached at the time of his death. .The terms of the contract were adjusted so as to meet the problem presented by the plaintiff’s care and support of her mother, and, While the contract rests upon parol, a close scrutiny and weighing of all the testimony compels a conclusion in agreement with the sound and informed judgment of the able chancellor. The disfavor with which the court regards an oral agreement for services which are to be compensated after the promisor’s death by devise and bequest, and the necessity that the terms of such a contract be not only certain and definite but be' also affirmatively established by clear and convincing testimony, are based upon weighty practical considerations and grounded in a wise policy which should be consistently followed. Mundorff v. Kilbourn, 4 Md. 459; Soho v. Wimbrough, 145 Md. 498, 510 ; Semmes v. Worthington, 38 Md. 298, 318 . Where, however, the conditions imposed upon the plaintiff are met, as in the instant case, the rule is not relaxed, but enforced, by the determination that such a contract was made.

The testimony in the record, is not without points of conflict, but, omitting a detailed recital and analysis, the evidence conclusively proves that, in consideration of the plain ⁴⁵⁰ tiff’s promise to go to Baltimore and serve the intestate until his death as cook, housekeeper, nurse, and companion, the-intestate promised to give the plaintiff $12 a week as spending money, provide the plaintiff and her mother with board and lodging in his home and, at his death, give to the plaintiff all his property. The period and all the obligations of the contract are complete, plain, precise, and specific, and the consideration for the intestate’s promise is valid and valuable. The plaintiff gave up a less onerous employment at a greater weekly remuneration, and became the servitor of the intestate for his life, which was a certain term but of unforeseeable length, so the only financial benefit of the new