Semmes v. Worthington

Alvey, J., delivered the opinion of the .Court. The bill in this case was filed for the purpose of procuring the specific execution of an alleged contract, ³¹⁵ whereby the late Richard J. Worthington, deceased, agreed, in consideration of certain conduct and services to be performed by the plaintiff, to devise to the latter certain real estate, known as the “Bloomfield Farm and Race Course.” The bill alleges that, in the fall of 1866, the plaintiff was requested by his uncle, the late Richard J'. Worthington, to take possession of his real estate, known as the “Bloomfield Farm and Race Course,” containing about twelve hundred acres of land, more or less, and to work and manage the same as a tenant, upon the agreement and understanding that the profits should be equally divided between them; that the plaintiff did take possession of the farm, and cultivate the same under the agreement, until some time in the month of April, 1869; that during this period the uncle repeatedly assured the plaintiff that he would devise the farm to him; and that the uncle did execute a will on the 29th of January, 1868, whereby he devised to the plaintiff an equitable life estate in an undivided half of the farm. That subsequently, and after the occurrence of a disagreement between the uncle and the plaintiff, this will of the 29th of January, 1868, was cancelled, and another will, dated the 21st of January, 1869, was executed, wherein no provision whatever was made for the plaintiff.

It is then alleged, that the plaintiff remained in charge of the farm until some time in April, 1869, when, in consequence of the disagreement between himself and his uncle, the agreement between them was rescinded, and the plaintiff vacated the farm; that the uncle thereupon employed a man by the name of Slade, to work and cultivate the farm in the place of the plaintiff, but soon becoming dissatisfied with Slade, and being desirous to re-establish friendly relations with the plaintiff, and to secure his services upon the farm, he opened negotiations with the plaintiff, proposing that if the latter would pay to Slade the money necessary to ³¹⁶ induce him to vacate the farm,'and would moreover again take possession of and cultivate, the farm during the lifetime. of the uncle, he, the uncle, would devise the farm to, the plaintiff. To this proposition, as it is alleged, the plaintiff, being unwilling again to subject himself to the. whims a.nd caprices of the uncle, at first positively refused to accede, but finally, after further negotiation, consented, being greatly influenced by the fact that from 18.66 to 1869, he had, in reliance upon the assurance of the uncle, that the farm should be devised to. him, expended upon the same all of his share of the crops and profits thereof; and that it was thereupon clearly, definitely and distinctly agreed between the plaintiff and his uncle, that the former should pay out of his own proper means such sum as Slade might exact as. the price of relinquishing possession of the farm, and should himself take possession thereof, and manage, work and cultivate the same, paying to his uncle the clear one-half of the profits, thereof, and with the other half, or so much thereof as. might he necessary, defray the expenses of carrying on the farro during the Hfe-time of his uncle.; and, in consideration of his so doing, the uncle would devise the farm to him. It is further alleged that the plaintiff did induce Slade to: vacate the farm, upon the payment to him of one hundred dollars, and did enter into, possession of the farm, and in all respects performed his part of the agreement until the death of the uncle, which occurred o.n the 13th of March, 1810, less than one year from the date of the agreement. It is further alleged, that the plaintiff was aware of the existence of the will of the 21st of January, 1869, at. the time of entering into, the agreement with the uncle, but that he did not know until after the uncle’s death that the, latter had tailed to revoke it, as he had frequently declared his purpose so to. do, and to make, his will conform to. the agreement, with the plaintiff. ³¹⁷ With the bill are exhibited the cancelled will of the 29th of January, 1868, and also the last will of the 21st of January, 1869, which has been admitted to probate.

By the cancelled will the testator gave to the plaintiff an equitable life estate in one-half of the real estate in controversy, with other property, and appointed him one of his executors. And by the last will no provision is made for the plaintiff at all, but the real estate in question is devised to one of the testator’s brothers, in trust for the use of two grand-nieces, and in the event of their dying without issue living, then to a niece, Mrs. Susan J. Mil-nor, in fee. The adult defendants, by their answers, deny the existence of the contract and part performance thereof, as charged in the bill, and, consequently the plaintiff is put to full proof of his case. The contract alleged is evidenced by no writing whatever, but rests entirely on parol as contradistinguished from writing.

The Statute of Frauds has not been invoked or relied on by the defendants in their answers; but where a parol contract, within the Statute, is set up by the plaintiff, and the defendant by his answer denies the making of the contract, it is not necessary for him to plead the Statute or insist on it as a bar; but the plaintiff, in order to entitle himself to the relief prayed, must, at the hearing, fully establish the contract as alleged, and such acts of part performance thereof as will take the case out of the Statute. Billings-lea vs. Ward, 33 Bid., 48. The Court below was brought to the conclusion that the contract alleged was sufficiently established and partly performed as to part of the real estate mentioned in the bill, and decreed execution accordingly, by appointing a trustee to convey such part to the plaintiff. From this decree there have been cross-appeals ; and the whole case has been most fully and ably argued at the bar of this Court by the solicitors of the respective parties. ³¹⁸ That a contract to devise real estate, if shown to he in all respects fair, just and reasonable, founded on sufficient consideration, and there he no doubt on the proof as to any of its terms, may be enforced by specific performance, by way of conveyance, as against the heirs or devisees of the party obligating himself to devise, is a proposition fully sustained by authority, and we do not understand that such proposition is at all controverted in this case.

But in all cases for specific performance the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. The proof must be clear and explicit, leaving no room for reasonable doubt. And in cases for the specific enforcement of- a contract to devise, like the present, where the property has been devised to other parties, the utmost certainty is required, as, by the enforcement of the contract, the Court undertakes to set aside a solemn testamentary act of the deceased party, in the absence of all possible explanation of his conduct, ,and when he is no longer present to vindicate himself against the imputation of bad faith. To such cases may well and most aptly he applied the rule so clearly and forcibly stated by the late Mr. Justice G-rier, of the Supreme Court, in delivering the opinion of that tribunal, in a case of an application for specific performance.

In speaking of the character and certainty of proof required on such applications, he said: “Such proof must be clear, definite and conclusive, and must show a contract leaving no jus deliberandi or locus penitentice. It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversations, which the witness had no reason to recollect from interest in the subject-matter, which may have been imperfectly heard or inaccurately remembered, perverted or altogether fabricated; testimony, therefore, impossible to be contradicted.” Purcell vs. Miner, 4 ³¹⁹ Wall., 517 . And in this case, without intending in the slightest degree to question the integrity and good faith of any witness examined in the cause, it is proper to observe and bear in mind, that all the evidence offered to establish the contract, consists of the mere verbal declarations and statements of the deceased, and that the witnesses who depose to them had no other means of identifying the expressions used, or the intention of the declarant, than their mere power of recollection after the lapse of a considerable time. The wisdom of the Statute of Frauds, in requiring contracts of great importance to be evidenced by writing, is within the constant experience and observation of every one engaged in the administration of justice; and it has been a matter of regret by the ablest Judges that the provisions of that Statute should ever have been so far relaxed, as to allow the titles of parties to their estates to depend in any considerable degree upon the chances, the uncertainty and imperfections of human memory, to say nothing of their great exposure to fraud and perjury.

As, however, the Statute has in some cases been relaxed, and its literal and strict provisions departed from in order to prevent fraud, the rule established as applicable to those exceptional cases must be observed ; the Court, however, requiring in all such cases full and complete proof, as to all the conditions upon which the bar of the Statute can be removed. In this case, seeing to what standard the proof must be measured, we are of opinion that the plaintiff has failed to relieve his case of all rational doubt as to the factum of the contract alleged. That there were hopes raised and expectations created on the part of the plaintiff, by the conduct and deelaratious of the deceased, the evidence abundantly shows; hut that they assumed the solemn form and obligation of a distinct and definite contract in respect to the devise of the farm, we think may and does admit of serious question. The plaintiff' ³²⁰ had occupied the estate from 1866, to April, 1869, as tenant on the usual terms of leasing.

The estate was large and valuable, supposed to be worth over one hundred thousand dollars ; and the plaintiff being poor and without a cent to apply to the stocking of the farm, his uncle furnished all the stock and utensils, and exacted only the rent paid by his former tenant Schwartz. Upon some disagreement with his uncle, the plaintiff left the farm in April, 1869, in the midst of a current year of his tenancy, and was succeeded in its occupation by Slade, but for a few days only. By the fault of which of the, parties the disagreement occurred, does not appear; but by the intervention and upon the suggestion of mutual friends a reconciliation was effected, and the plaintiff was again placed in possession of the farm as before. It is manifest from the evidence that the idea of this reconciliation, and the restoration of the plaintiff to the possession of the farm, did not originate with the uncle, but would appear to ’have been conceived and proposed by Schwartz, Nicholas and Bosley.

They stopped the appraisement which they were called on to make, and proposed that one of them should go to Worthington, the uncle, and ascertain whether he was willing that the plaintiff should return to the farm, and, upon his signifying assent, arrangements were initiated to ■■get Slade to vacate and the plaintiff to resume the possession of the farm as formerly. This fact is proved by Schwartz, one of the plaintiff’s witnesses. The payment of the hundred dollars to Slade to induce him to surrender possession, appears to have been made only in part by the plaintiff; but the surrender was manifestly for the benefit of the plaintiff, as thereby he was not. only restored to the possession of the farm, but to the benefit of his winter’s work done on the farm, and of the crop then growing. He might well, therefore, agree to pay tb.e hundred dollars for the surrender of the farm. ³²¹ The two witnesses upon whose testimony the main reliance is placed to establish the making of the contract as charged in the bill, are Nicholas and Schwartz.

The first named of these witnesses, says: “Mr. Worthington sent down for me specially to come up there; I had been one of the appraisers to appraise the property. When I went up there, Mr. Worthington told me that, as I had started this business, I must get Charles Semmes back, and Frank Slade away; that if Charles Semmes would come back and attend to his business as he had done before he went away, that he, Worthington, would leave him Bloomfield at his death, and if he didn’t, he should never see a damned cent of his property.” This proposition according to the testimony of the witness, was submitted to the plaintiff, who, after considerable difficulty, was induced to accede to it. Schwartz, the other witness, testified that Worthington told him “to tell Charles Semmes that if he wouldn’t come back and attend to his work like he did before, he shouldn’t have a damned cent, and if he would come back he would give him the place.” This proposition was also taken to the plaintiff by the witness, and it was not until after considerable hesitation that the plaintiff finally acceded to it, and returned to the farm. Neither of these witnesses as will be observed, profess to give the exact language of the deceased, nor everything that was said by him; nor do they undertake to state the language of the plaintiff when these propositions were made to him, to show how he understood and in what sense he accepted them.

These are the only two witnesses who profess to have any knowledge of the making of the contract; the other witnesses for the plaintiff testifying to declarations of the deceased, all of which are of a vague and indefinite character as evidence of a contract, such as that set up in the plaintiff’s bill. ³²² Now, without laying any particular stress on the discrepancy between the contract as alleged in the bill, and the evidence offered in proof of it, which is much more than merely verbal, is it rational to conclude, in view of all the circumstances of the case, that the deceased intended to make a binding and conclusive contract for the final disposition of the estate in question, as contended by the plaintiff’s counsel? To justify such a conclusion the most positive and unequivocal proof should be furnished; as the effect of such contract, if made, was not only to revoke the solemn last will and testament of the deceased, as to the estate in question, consisting at least of two-thirds of his entire estate, but forever to deprive him of all power of disposition over it, and to reduce him to the condition of a mere life annuitant, depending for the amount to be received upon the skill and attention with which the estate might be managed by the plaintiff. By the contract as attempted to he established, the jdaintiff became entitled to the devise upon his taking possession and cultivating the farm during the life'of his uncle, upon the same terms and in the same manner as before, when merely a tenant, without any reference whatever to the possible change of feeling, or to any future relation that might exist between them. For this extraordinary contract, the only apparent consideration to the deceased, was the preference of one tenant to another to cultivate and manage his estate, on being paid the usual rent.

And it is really difficult to imagine that a sensible man, as the deceased is said to have been, would, by solemn contract on such consideration, so entirely denude himself of all power and control over his estate, and place himself in a condition of such dependence in reference to it. But turning to the conduct of the plaintiff, how did he understand the transaction between himself and his uncle? Did he understand from the beginning that it was a bind ³²³ ing and conclusive contract that would secure to him, absolutely and