
    Frank Delos Bush, Plaintiff, v. Ida A. Whitaker, as Executrix, Etc., Defendant.
    (Supreme Court, Oswego Special Term,
    September, 1904.)
    Agreement to give money by will — When it will be specifically enforced — “ Leave ” used in the sense of “ will.”
    An uncle sent to a favorite nephew the following letter: “Delos if there is not any change in my family, I shall leave one-half of what I have for you, but have willed you $1,000 — now I want to say to you — you get me up a cane that will be good enough for you when I get through with, and I will leave the cane and $1,000 with it when I get through. Keep this note.” The nephew furnished the uncle a cane' worth forty dollars and the uncle accepted it, used it for many years and expressed satisfaction with it. Upon his death, the uncle did not leave the $1,000 to his nephew, but left substantially all of his property to an adopted daughter. There was no evidence that she would, not be amply provided for without such $1,000.
    
      
      Held, that the letter constituted a valid contract oh the part of the uncle to leave the nephew $1,000 and that the nephew was entitled to compel specific performance of such contract;
    That the word “leave” was used in. the letter in the sense of “will”;
    That the first clause of the letter, “ if there is not any change in my family,” related to the uncle’s proposition to leave the nephew one-half of his estate and not to the proposition to leave the nephew $1,000 if he provided the uncle with a cane.
    Action for specific performance.
    John 0. Troian, for plaintiff.
    Rogers & Atwell, for defendant.
   This action was tried before the court without a jury. The relief demanded is a specific performance of an alleged contract to make a bequest based on the following letter: “ Delos, if there is not any change in my family, 1 shall leave one-half of what I have for you, but have willed you $1,000 — now I want to say to you — you get me up a cane that will be good enough for you when I get through with, and I will leave the cane and $1,000 with it when I get through. Keep this note. Dated Antwerp, September 2, 1868. E. Fulton.”

The plaintiff furnished the cane. It was made of rosewood and had a twenty-two carat gold head, which was ornamented with figures and gold quartz. It was inscribed: “ Frank to Uncle E. Fulton.”

That one may make a valid contract to leave property by will is well settled, and equity in such a case will compel a specific performance thereof. See Rood Wills, §§ 54, 57; 2 Beach Mod. Eq. Juris., § 602; Schouler Wills (3d ed.), § 454. See also for review of the subject, note to Johnson v. Hubbell, 66 Am. Dec. 784.

In the case at bar we have a clear, definite,, deliberate agreement in writing, which has been performed by the promisee, and performance accepted by the promisor. There is no evidence of the slightest fraud, duress or undue influence. The evidence indeed points most strongly the other way. The plaintiff was a favorite nephew of the testator. He lived as a member of his family for years. When he left the home of his uncle, their affection still continued; they corresponded, and we find in the letter of September 2, 1868^ the uncle’s declaration that if there is no change in his family, he will leave one-half of his estate to the plaintiff. It" cannot be doubted that at the time this letter was written, the testator intended to bind himself to will $1,000 to the nephew if he furnished the cane. This is an induction from the following facts: The letter, written and signed, bears.the stamp of deliberation; the admontion to keep the note; the attachment of the testator to his nephew; his intended additional generosity in the event of no change in his family, and, finally, the important fact that after the cane was received, the testator considered that his nephew had performed his part of the contract according to the original plain intention of the parties.

The decedent was pleased with the cane. He showed it to people, telling them from whom it came. The witness Waite testified: “He (the testator), often showed the cane in the store to people and told them how he got it. He told me he had written Delos that if he would get up a cane such as he would want to use, and send it to him, that he would give him or will him a thousand dollars. I think he said will if I remember right — a thousand dollars. He told me Delos sent the cane and that that was the cane that he sent him.” The testator used the cane for twenty-seven" years and bequeathed it to another. It was valued at $40. The value of the use of a jeweled cane like the one in this" case, at compound interest, would be $192.88, making the total money value received about $232.88.

The contract is not void because of inadequacy of consideration. The promisee acted on the faith of the promise and in accordance with it to the satisfaction of the promisor. This was a sufficient consideration to uphold the promise to will the amount stated in the absence of any fraud, duress or undue influence or other forceful reasons. As to the value of the cane to the testator — who can say? A court cannot say, in view of the circumstances of this case, the peculiar nature of the transaction, that, for reasons of particular sentiment, and as an object of pretium affedionis, the cane was not, in the opinion of the testator, of the value of $1,000. The testator alone could declare its value to him. This he did, by accepting, keeping and using it under his promise.

Judge O’Brien in Godine v. Kidd, 64 Hun, 585, at page 591, states the rule as to consideration which is applicable to this case: “ If there be any consideration, the court will not weigh the extent of it; it has no means of scrutinizing the varied hidden motives and reasons that may have influenced the parties and induced them to enter into the contract, nor can it determine upon the prudence or propriety of the transaction. * * * The adequacy of the consideration is for the parties to consider at the time of making the agreement; not for the court, when it is sought to be enforced.” Judge Church in Earl v. Peck, 64 N. Y. 596, says: Mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud, or undue influence, is not a defense to a note;” and as an illustration he says: “A note for a thousand dollars, given for a horse confessedly worth but one hundred, cannot be successfully defended in whole or in part, on the ground o-f a want or failure of consideration.” In Yarwood v. The Trusts & Guarantee Co., 94 App. Div. 47, a note for $5,000, payable at the decease of the maker was enforced against the estate. The consideration shown was the nursing and harboring of the deceased for a few days. Judge Hiscock, writing the opinion of the court, says: “ He (the maker) had the right for himself to measure and- fix their value and pay accordingly. It is well settled that courts will not overturn an obligation of this kind because they may think that the promisor has paid too liberal a price for what he received.” As was said by Chancellor Williamson, quoted in Parsell v. Stryker, 41 N. Y. 480, It may be unwise for a man to embarrass himself as to the final disposition of his property, but he is the disposer by law of his own fortune, and the sole and best, judge as to the manner and time of disposing of it.”

In Hamer v. Sidway, 124 N. Y. 538, the testator agreed with his nephew, that if he would refrain from using tobacco, etc., till he was twenty-one years old, he would give him $5,000. The contract was held valid. Talbott v. Stemmons, 89 Ky. 222; 1 Keen. Cont. 361, is a similar case. See Worth v. Case, 42 N. Y. 362; Lawrence v. McCalmont, 2 How. (U. S.) 426; 2 Pom. Eq. Juris., § 926; 2 Beach Mod. Eq. Juris., § 574; 11 Am. Dig. (Cent. ed.), col. 1339. An executed contract will not be set aside for inadequacy of consideration which is not so gross as to raise a presumption of fraud where no fraud is otherwise charged. Matthews v. Crockett, 82 Va. 394. A written promise, in consideration of one dollar, and other valuable consideration (which appeared to be the support of promisor’s son "by promisee, the son’s wife) to will $2,000 was enforced. Matter of Steglich, 91 App. Div. 75. See also Le Vie v. Fenlon, 39 Misc. Rep. 265; Rhoades v. Schwartz, 41 id. 648. The principle stated by Anson seems applicable to 'this case. He says: “ So long as a man gets what he has bargained for courts will not ask what its value may be to him or whether its value is in any way proportionate to his act or promise given in return. Keith er will they ask whether the thing which forms the consideration, is of any substantial value to any one.” Anson Cont. 63.

The defendant urges that the conditions of the alleged proposal were not fulfilled, in that the cane was not “ gotten up ” by the plaintiff; that the testator desired the personal handiwork of the plaintiff. The plaintiff was a clerk. He was neither a skilled artist nor a manufacturer of canes, neither was he a dealer in them. It seems unreasonable to suppose that the testator expected the plaintiff to cut a rosewood stick, polish, stain and ornament it, supply it with a steel ferule, fit it with a figured gold head decorated with inscriptions and gold-bearing quartz. This called for an expert workman. The testator wished a nice cane from his nephew. His ordering it or selecting it or designing it was all the personal skill that could reasonably be expected of the plaintiff. This he gave. Besides, the testator accepted the cane and carried it for over a quarter of a century, and so must he held to have waived any objections he might have had to it.

It is contended that the letter of the deceased cannot be construed to mean that the testator contracted to will ” any property. In the light of the context it seems quite clear that “ leave ” was used in the sense of “ will.” This view is strengthened by the testator’s own interpretation of the letter. He tells witness Waite that he had written Delos that he would will ” him a thousand dollars if he would get him up the cane. Further, the word “ leave,” as applied to the subject matter, prima facie means a disposition by will. See sub nom. “ leave ” Black’s Law Dictionary, citing 10 East, 438. See also The Columbian Cyclopedia; Century Dictionary; Standard Dictionary; Webster’s Dictionary; American Encyclopedic Dictionary; The Universal Encyclopedic Dictionary.

It is claimed that the alleged proposal must be taken subject to the first clause of the letter, viz.: If there is not any change in my family.” But that condition clearly relates to the second clause in which he proposes to leave him one-half of the property.

There are two cases that may be noticed at this point. The first is Owens v. McNally, 113 Cal. 444; 33 L. R. A. 369, where an unmarried man contracted to give all his property to his niece if she would take care of him. Later he married and died without performing his agreement. The court refused to enforce the contract because the rights of an innocent third party had intervened, and hardship would result to the widow. The second is Gall v. Gall, 64 Hun, 600, where performance was refused on the ground that the contract was indefinite, lacked mutuality and deprived the future wife and children of the entire estate.

The case at bar is different from these cases. Here the contract was not to will all the property. The wife did not survive. Ho child of the testator survived. The agreement was in writing, was definite, deliberate, mutual and supported by sufficient consideration. It does not appear that the interests of the adopted child will he reduced by the enforcement of this contract to the extent of being a hardship upon her. The will, after a few minor legacies, leaves all the property to her. For all that appears she is abundantly provided for, after the payment of this claim. In Healy v. Healy, 55 App. Div. 315; affd., 166 N. Y. 624, the court decreed specific performance of the contract to will plaintiff a child’s share of an estate, even though a child was subsequently born to the promisor, which was thereby deprived of one-half the estate.

It may be noticed that in Winne v. Winne, 166 N. Y. 263, a written agreement by a childless person to make an infant, her sole heir in consideration of the absolute control and custody over him was enforced. The contract to will property in Mahaney v. Carr, 175 N. Y. 454, was not enforced because it lacked mutuality and was indefinite. Relief was refused for the same reason in Pattat v. Pattat, 93 App. Div. 102. Specific performance was denied in Hamlin v. Stevens, 177 N. Y. 39, because the evidence did not establish a contract to will.

I think the written contract of the decedent herein, being definite, mutual and in all respects as he intended it should be at the time of making it, and being free from all suspicion of fraud or undue influence, and supported by a sufficient executed consideration to the satisfaction of the decedent, should be enforced out of the estate.

Judgment should be rendered in favor of the plaintiff, without costs, for the relief demanded in the complaint.

Judgment for plaintiff, without costs.  