Personette v. Pryme ( 1881 )

The Chancellor.

The complainant’s intestate, Dr. Stephen Personette, and the-defendant, Anna L. Pryme, his niece, were the owners in equal shares in fee of a farm in Essex county. Their title was derived under the will of Joseph Personette, deceased, who thereby gave the property to his son Jephthah, who, after the death of the testator, died intestate, without issue, and unmarried, and on his-death Dr. Personette, his only brother, and Miss Pryme, the only child of his only sister (who was then dead), inherited the property. By the will, the testator directed his executors to furnish his widow with everything necessary for her comfort during her natural life, and provided that, in case they should refuse or neglect to do so, she should “have the privilege to choose a person to act for her.” Dr. Personette and Miss Pryme agreed with each other, after they became the owners of the farm, that the property should, during the joint lives of them and the widow, be considered and conducted by them as partnership property, bound for the support of the widow during her life• that during the joint lives of the three they two should contribute equally, as owners of the farm, to the support of the widow and to the expense of managing the farm and the payment of the taxes thereon, and that an account should be kept of the proceeds of the sale of the produce and of the sale of any sand which might be sold from the property, and of the money required to be paid for the comfortable support of the widow by •either of the partners. And it was at the same time also agreed between them that inasmuch as Miss Pryme had no income, nor any means of support except from her share of the produce of the farm, Dr. Personette should, from time to time, advance money to her as she might need it, and pay such debts as she might contract for necessary services to herself individually; and that such payments should be charged against her and credited to him in the partnership accounts, and that in those accounts she should account to him therefor; and that on the death of any one of the three there should be an account. The agreement subsisted until the death of Dr. Personette. Under it, and in accordance with its provisions, he (Miss Pryme all the time actually residing on the farm, and he in the near neighborhood) furnished a comfortable support to the widow, advanced money to Miss Pryme and paid money for her; paid the taxes on the property, and exercised superintendence over.the management of it in conjunction with her, consulting her as part owner and partner in the general conduct of the business, and the sale of the produce and sand. The bill is filed by the administratrix for an account.. It asks an answer without oath.

A landlord’s parol contract to make repairs on the demised premises is within the slatute, McMullen v. Riley, 6 Gray 500; O’Leary v. De Laney, 63 Me. 584; Wood’s Land. <& Ten. $ 377; Addison on Coni. \ 203; ietiits v. jSscibury, 74 N. Y. 409; and the right to use a church for public worship w'hen. not occupied by the congregation (0 which it belongs, Brumfield v. Carson, 33 Ind. 94; and holding the title of lands to indemnify a surety for work and labor to be done by the covenantee, Harper v. Spainhour, 64 N. C. 629 ; see Dyer v. Graves, 37 Vt. 369 ; and building a saw-mill on the lands of another, who agrees to furnish from his lands the logs to be used at the mill, Jones v. McMichael, 12 Rich. 176; and the sale of a pew, V-ielie v. Osgood, 8 Barb. ISO ; Buck v. Pickwdl, 27 Vt. 157. Tor cases of parol partnership in the management of lands and the products thereof, see Orawshay v. Maulé, 1 Swanst. 495; Morris v. Barrett, 3 Y.& J. 884; Roberts v. Eberhardb, Kay 148; Howe v. Howe, 99 Mass. 71.—Hep.

The defendant demurs on the ground of want of equity; that the complainant sues in a representative capacity, and yet prays-a discovery from the defendant as to transactions with and statements by the intestate; that the agreement set forth in the bill is void by the statute of frauds and perjuries, and that the-complainant had an adequate remedy at law.

The bill is based on the allegation that a partnership existed between Dr. Personette and Miss Pryme in the management and proceeds of the farm. Such a partnership could have existed (3 Kent’s Com. § 88), and the agreement for it, if by parol, is not within the statute of frauds and perjuries. The objection to the bill based on the statute concerning evidence is not valid. The complainant is not, by the fact that she sues in a representative capacity, debarred from requiring the defendants to testify in reference to the subject matter of the controversy. Daw v. Vreeland, 3 Stew. Eq. 542. As to the remaining objection that there is an adequate remedy at law, the bill indeed states that ¡since the death of Dr. Personette his account (which, it alleges, is a true one) of the advances and payments made by him under the agreement, was exhibited to Miss Pryme, and that she admitted its correctness, but manifestly that fact does not prevent the complainant from having recourse to equity. The account sought for can only be had in this court. The demurrer will be overruled.