Day v. Washburn , 76 N.H. 203 ( 1911 )

Upon competent evidence, the testimony of the plaintiff having been excluded and not considered, the court has found that the deceased, Orson Day, in consideration of services to be performed by the plaintiff, agreed, among other things, to leave her all his property by his last will at his decease. This was a contract which the deceased had the power to make and which in default of performance by him could be enforced against his administrator. Peterborough Savings Bank v. Hartshorn, 67 N.H. 156; Clements v. Marston, 52 N.H. 31, 39; Parsell v. Stryker, 41 N.Y. 480,487. The contract was performed by the plaintiff; but by the instrument which has been proved as the last will of Day, although the plaintiff is made residuary legatee, certain items of personal property of considerable value were given to Kimball and Washburn, the original defendants. The estate of Day is represented by his administrator, and claims against it should be prosecuted against the administrator and not against heirs or legatees. As Day did not fully perform his contract to give the plaintiff all his property by will, the plaintiff's damages by the breach are the value of all property left by him not willed to the plaintiff which is not consumed in administration, there being no debts.

The defendants demur upon the ground that the plaintiff has an adequate remedy at law. A decree for specific performance would have precisely the same effect as a judgment for damages in a suit at law. Justice does not require a separate suit to accomplish the same result which may be reached in this without further hearing. The administrator of Day is a party by agreement, and is entitled to protection and advice as to the conflicting claims of the defendants claiming the property by the terms of the will and of the plaintiff claiming under the contract. It is immaterial that the contending parties have brought him into court, rather than that he as plaintiff has compelled the parties to interplead. The parties have stated their claims in pleading and tried their case. The proceeding may be treated as a bill of interpleader brought by the administrator, and a decree be entered directing the administrator to pay over to the plaintiff all the estate of Day in his hands after payment of the expenses of his trust. Peterborough Savings Bank v. Hartshorn, 67 N.H. 156; Cox v. Leviston, 63 N.H. 283, 287.

The superior court of course has no jurisdiction in this proceeding to set up the first will or to annul the probate had of the later. The decree suggested will not have such effect. The first will was offered merely as evidence of the contract alleged, and the decree will not affect the probate of the second. The parol evidence objected to was not introduced to vary or control the written evidence, but merely tended to show the consideration and was competent. Quimby v. Stebbins, 55 N.H. 420. Whether the instrument executed by Day as his will, September 22, 1906, was a sufficient acknowledgment in writing to avoid the statute of frauds as to real estate is not involved, as the title to real estate is not in issue.

Case discharged.

All concurred.