Whitridge v. Parkhurst

Baktol, J., delivered the opinion of this Court; After a most careful consideration of the proceedings in this case, and of the authorities cited in the argument, a majority of this Court are of opinion that the order of the Circuit Court continuing the injunction, ought to be affirmed. In the argument of the cause in this Court, the solicitors for Urn appellants pressed with much earnestness and ability the second point in their brief, which alleges that there was a contract or agreement between Mrs. Edwards and Mrs. Frisby, whereby the latter agreed in consideration of the devises made to her in the will of Mrs. Edwards, ⁸⁵ to respect and give effect to the disposition made by the same will of her (Mrs. Frisby’s) property. If is alleged, that the will of Mrs. Edwards was made to carry out that agreement, and that relying on the assurances of Mrs. Frisby, the testatrix failed to make any provision in her will for John J. Frisby, which she would otherwise have done; and therefore it is contended, that this Court ought now to enforce that agreement in favour of John J. Frisby. It is unnecessary for us to go into an examination of the cases in winch such contracts, when clearly established by competent proof, have been enforced in equity; or to consider the effect of a performance of such contracts on the one part, ju taking them out of the operation of the Statute of Frauds.

In this case the alleged contract is not proved. The only evidence on which it rests is the testimony of Mr. Eicaud, who does not prove any such binding agreement as this Court can enforce. His testimony shows that the will of Mrs. Edwards was made with the knowledge and assent of Mrs. Frisby, who declared her purpose of carrying out its provisions. The will itself is silent as to any such agreement; nor does it appear, that any intended provision in favour of John J. Frisby was defeated, or omitted from the will in. consequence of any contract or agreement of Mrs. Frisby.

It would be carrying the doctrine contended for farther than is warranted by any adjudged case, that wo have seen, to say that the conversations testified to by Mr. Ricaud, constitute a binding contract to charge the estate of Mrs. Frisby with a trust in favour of John J. Frisby, which deprived her of the right of election. It would be setting a dangerous precedent, and in direct violation of the plain provisions of the Statute of Frauds to admit parol evidence to establish such an agreement, unless it ho of the clearest and most satisfactory kind, and also, unless “the acts of part performance relied upon to take the case without the operation of the Statute of Frauds, 5e clear and definite, and, ⁸⁶ refer exclusively to the alleged agreement.” 4 Md. Rep., 462. A majority of this Court are of opinion, that in this case the alleged agreement has not been proved. It may be remarked, that in the answer of the appellants, no such agreement is alleged as binding upon Mrs. Erisby; but they treat the case as one in which Mrs. Erisby, after the death of her mother, Mrs. Edwards, had the right of election, either to take under her will.or under the will of James Edwards.

On that ground the cause seems to have been presented to the consideration of the Court below. In the opinion of the Judge of the Circuit Court, he says: “It is admitted that this is a case for the application of the doctrine of election-." A majority of this Court considered that the right of election existed in Mrs. Erisby, and therefore the decision of the present appeal must depend upon the principles governing that branch of the la^; and upon the proof in the record. On this subject it is unnecessary for us to say more than that we concur in the views expressed in the opinion of the Judge of the Circuit Court, and upon the authorities cited by him, and for the reasons he assigns the order appealed from will be affirmed. Bowie, ,0.

J.., dissented, and filed the following opinion: The learned Judge who decided this case below, considered it as a case of election merely. Contemplating it in that aspect, his conclusions are very forcibly drawn from his premises. In my judgment, it is not a case of that character alone, one, in which it was optional with Mrs. Erisby at the death of her mother or afterwards, to choose which of two estates she would take; but a contract, between the ancestor and heir, for the settlement of real estate in futuro, owned in part by each, founded upon valuable and meritorious considerations; an agreement, the part performance of which by her will, devising a large share of her ⁸⁷ estate over which she liad absolute control, to the heir, with power to dispose of it among others, conferred on the ancestor, that devino being unrevoked, an equitable and legal right to diapouo of the proprerty of the heir, included, in the same will, in favor of her grand-son as had been previously stipulated between them. It is one of that class of contracts to settle real estate by will, which has been long recognised as binding upon the consciences of the parly and of!on enforced in equity.

Newland on Contracts, 111. Story's Equity Jur., sec. 785, 781. Duford vs. Pa reira, 1 Dick., 419. Brown vs. Brown, 1 H. & J., 430 .

Owens’ Case, 1 Bland, 399 , 432. Mundorf vs. Kilbourn, 4 Md. Rep., 459 . Johnson vs. Hubbell, 2 Stockn. Ch.

Rep., 332 to 340. Cases of election are those in which the act of the party electing, as the word imports, ir, a matter of volition, depending upon the principio ‘‘qui sencit commodum, debit sen-tire ei onus.” “When a man takes upon him to devise what tie had no power over, «pon a supposition that his will will be acquiesced under, this Court compels the devisee if lie will take advantage of the will, to take entirely but not partially under it, as wan done in Noys & Mordcmni’s case; there being a tacit condition annexed to all devises of this nature, that the devisee do not disturb the disposition which the divisor hath made." Streatfield vs. Streatfield, Ld. Chr. Talbott. 1 Swans., 447, Lead.

Cases in Equity, 288. “A man shall not tafo a benefit under a will, and at the same time defeat the provisions of the instrument. If lie claim an interest under au instrument, lie must give full effect to it as far as lie is able to do so; he cannot fake what is devised to him, and at the same time what is devised to another, although but for tho will, it would be his; hence, he will he driven to his election to say which lie will take." Beall & McElfresh vs. Schley, 2 Gill, 181. These are cases of pure election, resulting from the principle announced in the foregoing citations, that one can- ⁸⁸ Hot claim under and against an instrument at tlie same time. If the defendant’s title rested upon this basis alone, It might be doubtful, because the acts of the devisee, on whom the duty of election devolved, seen only in this light, were ambiguous.

Where the obligation to elect or rather to acquiesce in the disposition made by the testator, results from promises oral or written, made upon valuable or meritorious consideration, the relation of the parties is materially, if not entirely, changed. The devispes are no longer voluntary as to each other, the promisor is bound to the promisee, or the cestui que use, and liable to all the remedies for relief applicable to the •circumstances of the case. If the agreement is evidenced in writing, or rests in parol, accompanied by part performance, it becomes the subject of a bill for specific performance. And one who would be entitled to such relief, if complainant, cannot be divested of his equities, as defendant.

Contracts founded upon an equitable duty, such as would be enforced by a Court of Equity, or upon a moral obligation, which no Court of law or equity could enforce, or to do that which an honest man ought to do, or upon the waiver of a legal right, by the party entitled to it, are maintained by a sufficient consideration. State, use of Stevenson vs. Riegart, 1 Gill, 1 . Promises by a grand-parent to a stranger, for the benefit of a grand-child, are binding upon the grand-sire. 4 Md. Rep., 476 , Ellicott vs.