Whitridge v. Parkhurst , 1863 Md. LEXIS 28 ( 1863 )

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 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. Pareira, 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-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. Peterson. Contracts between a parent and grand-parent, for the benefit of a grand-son, founded on valuable consideration, moving from the grandparent and enuring to the benefit of the parent and her other children, to the exclusion of the son, must be equally obligatory.

In equity what is agreed to be done, is considered as done. Haviug covenanted to abide by the will of her mother, and suffered her to die under that impression, the "locus penitentice” was gone. From the death of Mrs. Edwards, Mrs. Frisby’s occupation was that of tenant for life of “Oxford” and lot No. 17, with the reversion in ber son John J. Frisby. She was no longer at liberty to choose; her contract obliged her to acquiesce in the disposition her mother had made, otherwise the injury was irreparable.

' In cases of election, if the devisee on whom the duty of election devolves, renounces the will, and reclaims his property, the disappointed devisee has a right to compensation. Noyes vs. Mordaunt, White’s Equity Cases, 282, 283.

What compensation could the grand-son have here? The grand-mother’s estate was given to the mother for life, .with a power of appointment among other children, to the exclusion of the son'. Could the children entitled under this power he deprived of their provision, because of the fault of their mother, the tenant for life, if not, would the mother’s life estate compensate the devisee who wrns entitled to an estate in fee ? There being no means of compensation, it was not a case of election hut a case of equitable title to specific performance on the ground of part performance and irreparable injury, if not consummated.

The acts of Mrs. Frisby which, are supposed to be equivocal, are rendered consistent when viewed in this light. The joint deeds of mortgage of the 3rd September 1847, and 22nd April 1851, were recognitions by her of the reversionary interest of her son, in “Oxford” and lot No. 17, therein mortgaged. Under any other hypothesis, the son was made a party to a conveyance of property in which he had no interest at law or in equity, and the fee-simple depending upon her election, was in abeyance, to be determined by her election at some indefinite period. Can it be supposed Mrs. Frisby had the right to hold both properties during her life, and at the last moment, by her own act, or that of her creditors, renounce the will and reclaim her property ?

When tbe character of an act is in question, that construction which is most consistent with the obligations of the actor, is to he preferred, and equity cannot adopt one which would violate the moral and legal obligations of a daughter to her mother and her child, without extreme-necessity. There is nothing in the premises,, recitals or covenants of the grantors of the joint deeds above referred to, inconsistent with their rights as tenants for life and tenants in fee, respectively; the covenant for quiet enjoyment in behalf of the former, may be explained by its application to the other lands of Mrs. Frisby, but-does not, if unexplained, amount to a renunciation of her mother’s will.

The confirmatory leases dated 19th October 1857, and 6th May 1848, of Mrs. Frisby, are acts designed “solely for confirmation” (as- one of them expressly declares) of previous deeds, made by Mrs. Edwards and Mrs. Frisby, and are not to be extended by implication, into independent acts of ownership, conflicting with previous acts of recognition. John J. Frisby was not a party to them and cannot be prejudiced by them.

“If a party has once made an election, he is bound to abide by his determination, unless he can restore the property to its original situation.” Leonard vs. Cromendin, 1 Edwds., 206, 210. 1 Amer. L. Ca., 321.

Viewing the transaction as a compact or family settlement, it has all the requisites essential to its validity. It is reasonable, mutual, certain, fair and just, and based upon valuable and meritorious consideration. Bowie vs. Stoddart, 4 Md. Ch. Dec., 475. 5 Md. Rep., 18.

Mrs. Edwards was- possessed of a large real (and .pel’sonal) estate in fee, in her own right, as well as of a life estate in “Oxford” and lot No. 17, devised to her by her husband, with a reversion to Mrs. Frisby in fee. Mrs. Frisby had one son and several daughters. It was natural the grand-mother should desire to settle her mansion house or country seat, upon her only male descendant, and make liberal provision for him as the representative of the family. To accomplish this we may suppose, she had the understanding with her daughter as to the disposition of their property. In the words of the draughtsman, “the will was written and dictated both by Sirs. Frisby and Mrs. Edwards, in the prosonco of each other, and after it was concluded Mrs. Edwards asked Mrs. Frisby, if the disposition of the property thus made by said will was satisfactory to her, and in accordance with their mutual understanding, or if not said she would make it so, to which the latter replied, that it was satisfactory and that she would carry out the said will; the will was then executed.” In this instance the draughtsman might be regarded as the .agent of both parties, legally authorised to reduce their agreement to writing;, in the form of a will, which was a note or memorandum in writing of the subject matter of the contract.

The contract of settlement was binding between the parties from the time it became operative, which from the nature cf the instrument chosen to accomplish it, was the death of Mrs. Edwards; the first that died carried her part of the contract into execution. Dufour vs. Pereira, 1 Dick., 421. If the contract had been reduced to writing in any other form, it would have taken effect immediately. Had it been an ordinary contract of sale or exchange between the mother and daughter for the benefit of the son, for a similar consideration, no intermediate judgment against either would have been a lien on the land. Hampson vs. Edelin, 2 G. & J., 64. Repp vs. Repp, 12 G. & J., 341.

The complainants in this caso are simple contract creditors of Mrs. ¡frisby, who seek to disturb the family arrangement, made long; anterior to the claims; they do not charge any indebtedness on the part of the mother at the time of the settlement, or fraudulent intention in its inception or consummation. They roly upon the indebtedness of Mrs. Frisby at the time of makiug her will, in which she declares she had previously elected, as the legal obstacle to her malting an election which would prejudice her creditors.

The agreement between Mrs. Edwards and Mrs. Frisby, in my view, was for a bona fide and valuable consideration, and not subject to any exception under tbe Statute against fraudulent conveyances.

(Decided May 22nd, 1863.)

The case of Johnson vs. Hubbell, 2 Stockton’s Ch. Rep., is one of the most recent, apposite and exhaustive decisions on this subject. All the leading elementary principles and judicial precedents are collected and reviewed by the Chancellor, and after establishing the ^general principle of enforcing agreements to make family settlements by will, he proceeds: “It is said that this agreement was in parol, and is therefore contrary to the Statute of Frauds; but although this'agreement was a mere parol one, if there was a part performance of it, of such a character, as upon the principles recognized and acted upon by this Court, will take a parol agreement out of the Statute, then there is nothing peculiar about an agreement of this kind, to exclude it from the operation of those principles.” * * * * “Agreements or family arrangements like this are favoured in a Court of Equity; marriage settlements and agreements for family arrangements with respect to property are viewed with favor by this Court. They ought to be respected and scrupulously carried out by the parties to them, and if they are not, a Court of Equity ought to enforce their execution.” pp. 338, 340.

Entertaining these views, I respectfully and reluctantly dissent from the opinion of the majority of my brothers sitting in this cause, affirming the decision below.

■Order affirmed with costs, and cause remanded.