
    In the Matter of the Claim of Frank A. Sherman Against the Estate of Waity Sherman, Deceased.
    
      (Surrogate’s Court, Rensselaer County,
    
    
      Filed June, 1898.)
    1. Statute of Frauds — Parol Promise to Devise Laud.
    A parol promise by a mother to devise real estate to her two son9 if they would improve it and assume a debt of hers, when followed by performance on their part, is valid and enforeible.
    2. Same — Measure of Damage.
    Where, in such case, the mother devises the entire farm to one son and gives $500 to the other, the latter may recover of the estate the amount expended by him on tbe property in money and labor, with interest from the time of her death, where he has not demanded interest of her or in his claim or on the trial.
    3. Legacies — When a G-ift and Not Payment.
    An unconditional legacy to a child who is also a creditor will not be presumed to be intended as a payment of the debt, where their relations were harmonious, the debt was to be paid by a devise of real estate and the legacy is for a smaller amount.
    Proceedings by claimant to establish an agreement upon the part of testatrix to devise ber farm to him and his brother in consideration of their making improvements thereon and paying a certain debt owed by testatrix.
    Lansing & Holmes, for claimant; -Eugene Bryan and O. S. McChesney, for Calvin AY. Sherman, executor.
   Comstock, S.

That claimant has established an agreement on the part of testatrix to devise her farm to him and his brother Calvin, in consideration of their making improvements thereon and paying her debt to Lydia Sherman, there can be no doubt. To be sure there is no direct testimony as to'such agreement, but several witnesses swear that they each, at different times, heal’d testatrix sa.y that she had made such an arrangement with them, who are not only uncontradicted, but Calvin, himself, who is one of the executors and sole devisee, although on the stand as a witness and examined at length on behalf of the estate and against this claim, and who must have known whether such agreement ever existed or not, does not attempt to deny it, It is further evidenced by the fact that the boys, immediately after the alleged date thereof, commenced making improvements on the farm of a permanent character, such as the erection of buildings, viz., a wagon-house, sheep barn, ice-house, tool and henhouse, and also established a system of drainage thereon, constructing closed and open ditches, laid tile^ built stone walls and new fences, involving an expenditure of several hundred dollars, and also assumed the said debt of testa,trix of $2,100, for which they gave their note less $300 of principal and $105 of accrued interest, which they then paid in cash. Excluding the inducement of this promise to them no* explanation is given for this large outlay of money, and in addition the taking upon themselves of an $1,800 debt of the testatrix, from which she was in consequence released. There are no suspicious circumstances attending this alleged arrangement; on the contrary, it was a most natural and probable thing, and the conditions in which these parties lived at the time afforded the very strongest presumption in favor thereof. The testatrix was a widow, well along in years, yet perfectly free from any impairment; her two sons were living with her on the farm, both young men; Frank had just brought home a wife. The farm comprised about all the property she owned; the buildings were old, and new ones as well as new fences must be built; this debt of $2,100 had to be paid; if the farm was worked she had. to hire labor therefor. What more natural than that she should say to her sons, take this burden from my shoulders and I will give you the farm when I am done with it. There are many cases of claims presented against estates of deceased persons which demand the closest scrutiny and examination -and which should be allowed only upon the clearest and most convincing proof, but this rule has no application where there are no suspicious circumstances, but instead thereof a strong presumption as to its justness. Neither can there be any doubt of the full performance of this agreement by the sons. They paid about April 1, 1883, and immediately after this arrangement, $300 of the principal of their mother’s said debt and $105 of interest then owing, and gave their note for the $1,800 remaining. That this particular note was given is disputed by the contesting executor, but it is wholly immaterial whether it was or not. They conced-edly paid the $2,100 debt down to $1,300, and on July 1, 1885, they gave their note for that balance and the mother was released ; it then became their debt, and she had no legal interest or concern whether' it -was paid by them or not; so far as she ■was concerned it was paid. As to the improvements, they were to make such only as they saw fit. The kind and extent thereof was left to their discretion, and this fact can be cited as a further evidence of an agreement that they should have the farm; the testatrix evidently thought it safe to so leave it, as they were eventually to become the owners, which confidence was fully justified by what they subsequently did. In 1894 she made her will, and instead of devising the farm to her sons, as she had promised to do, she gave it to one of them, Calvin, who is now in possession thereof, subject to a legacy charge of $500, in favor of claimant; in other words, although they contributed equally in the fulfillment of the conditions on which they were to have the farm, she gives one five times as much as the other, and to him she gives money instead of the land. The question now arises whether this was such a performance on her part of said agreement as releases her estate from liability. It is true that her sons have the farm between them, and it is equally manifest that the division she has made is unfair to claimant. From a. moral standpoint, to say the least, she should have devised it to them equally, then no question could have arisen, but as the case stands the claimant takes no title and is given a lien only, and for an amount insufficient to compensate him for his share of the money paid and services rendered. He is certainly entitled to compensation, which right has survived the testatrix, and exists solely because of her failure to do as she agreed. She was under no legal obligation to devise her farm to them, but -having obtained large benefits on the strength of her promise so to do her estate is liable for remuneration in case of her failure, to perform. By making the disposition she did, the claimant is compelled to seek redress or suffer loss. Although he and his brother acted jointly they were not copartners. Her contract was with them as tenants in common, and whatever right vested in them or either of them upon their performance, ■ either for a specific performance or for compensation, was held by them as such. The- legal import of her agreement was to devise to them each a separate estate, which each would hold in severalty, and which he could convey by separate deed. Gerard’s Titles (4th ed.), page 300; 1 R. S. 727, § 4. Tbis sbe bas not done, so far as the claimant is concerned; bis claim was not satisfied nor affected by the devise to bis brother. Gock v. Keneda, 29 Barb. 120; Lansing v. Bliss, 67 N. Y. St. Repr. 52. It is claimed, however, that be is not entitled to recover bis share, but I do not think that tbis contention is correct. The claimant is an executor, he cannot sue himself and bis only remedy is in tbis court on a judicial settlement. His brother, who is coexecutor and sole devisee, is a party in both characters, and stands in an attitude antagonistic to the claimant. If tbis was an action be could have been made defendant (Civil Code, § 448) in case bis share had not been satisfied, but tbis would be necessary only to have him before the court as an interested party. His refusal to join in, and bis repudiation of the claim would entitle the claimant to recover bis share. Shakespeare v. Markham, 72 N. Y. 400.

But so far as the brother is concerned the testatrix has performed and he is in possession of the whole farm, as devisee; so long as this situation continues he has no claim either fox-specific performance or compensation; he has been settled with and the rule is that the other has his separate remedy for his share. Lansing v. Bliss, supra. In considering how much he is entitled to recover, the agreement, being void under the Statute of Frauds, cannot be accepted as fixing the measure, although it was said in Lisk v. Sherman, 25 Barb. 433; Burlingame v. Burlingame, 7 Cow. 92; Fort v. Gooding, 9 Barb. 376, that it could be. The rule is, in such cases of void contracts, that there is an implied assumpsit on the part of the defaulting party to reimburse the other to the extent of the value of his services or the money he had expended. Day v. N. Y. C. R. R. Co., 51 N. Y. 583; Reed v. McConnell, 133 id. 425. The evidence shows that the claimant’s share amounts to $693.60, and I think he would be entitled to interest Thereon-from a time prior to the date of the death of testatrix-had he demanded it in his complaint or on the trial. It is true that by the terms of their agreement they were not to be compensated until her death and no action would lie thereon until then. Quackenbush v. Ehle, 5 Barb. 469; Campbell v. Campbell, 65 id. 639; Bonesteel v. Van Etten, 20 Hun, 468; Day v. N. Y. C. R. R. Co., 51 N. Y. 583. But when one party to such agreement, who has received benefits from the other in reliance thereon, makes default, the one who has performed has a remedy, not on the void agreement, but on an implied one to compensate him. Judge Earl says, in the Day case, “ While the law in such case will not sustain an action based upon the agreement, it still recognizes its existence and treats it as morally binding. . . . A party who' has received anything under such an agreement and then has refused to perform it, ought in justice to pay for what he has received, and hence the law, for the purpose of doing justice to the other' party, will imply an as-sumpsit.”

In the Reed case Judge Andrews says: “ The law in such case will raise an implied assumpsit in favor of the other party to accomplish justice and prevent fraud.” It would be doing but partial justice to' limit the implied agreement to the payment of the principal. In this case the claimant has lost the use of his money for years and the testatrix has had the benefit thereof. He was in no position to demand payment before her death, for the law assumed that she would discharge her moral obligation; she having failed, the plainest equity demands that she should not profit thereby, but should return to the claimant all she received from him, which includes the value of the use of his money and services; but the claimant having failed to ask, either in his complaint or on the trial, for interest prior to the death of testatrix, the computation must be from that time. Shreve, C. & L. Co. v. Holbrook, 87 Hun, 621; 68 N. Y. St. Repr. 468. The proceeding in which this claim incidentally arises is the judicial settlement' of the estate of testatrix, which involves the determination of all matters necessary to a full and complete distribution; hence it is proper at this time to consider tbe effect of the $500 legacy to the claimant. If it was intended as a bounty he is entitled to it in addition to his above claim; on the other hand, if the intention of testatrix was to thereby perform in whole or part her said agreement, or to pay his said claim, then when paid it must be deducted. The general rules applicable to legacies to creditors, independent of any agreement to compensate them by will, would be against the presumption that she intended it as payment and for the following reasons: First, the amount was less than the debt; second, the; debt was unliquidated; third, the payment is postponed until two years after her decease. Reynolds v. Robinson, 82 N. Y. 103; Williams v. Crary, 4 Wend. 443, 449. But these facts would not control if there was an agreement by the testatrix to pay her obligation by her will, and she had made such a provision as would show that she was thereby intending to carry out her agreement.

In the present case the testatrix made no' agreement to give the claimant a legacy, she agreed to devise her farm to him and his brother, he was to have land, not money, and had she done as she agreed he would have received three times as much as she gave him; she gives the whole farm to the brother, subject to this legacy. Can it be said, under such circumstances, that she was attempting, by the provision she made, to carry out her agreement with the claimant ? It lacks every element of performance ; what she gave him was wholly different in kind and quantity from v'hat she agreed, and the delivery was postponed for two years beyond the time agreed on. So radically different is the scheme she adopted from the one she promised that I am led irresistibly to the conclusion that, instead of intending to consummate it, she deliberately ignored it. Certainly what she gave Calvin, beyond his half interest in the farm, was by way of bounty. There would be more plausibility in the claim of payment, by the legacy to Frank, if he was not her son; some allowance must be made for the fact that he was a natural object of her bounty and not a mere stranger. The agreement which the law implies, viz,: That she would compensate the claimant in money, is not the one she promised to perform by her will, as to that he stands as a mere creditor of the estate; her intention is to be measured by what she did, viewed in the light of what she agreed to do. I do not think that an unconditional legacy to a child of a testator, who is also a creditor, should be presumed to be in payment of the debt. The presumption is that it is a bounty, unless the will itself shows that such was not the intention, either by its terms or identity in amounts. It would be otherwise, however, if he had agreed to compensate him by such a legacy as was given, because the legacy corresponding in amount and character with the agreement would be a performance thereof and would, in such case, be considered as so intended by the testator; but if the agreement was to devise a particular parcel of real estate as compensation, and instead thereof he bequeathed him $500 in money, the will being silent as to the intent, no presumption can arise that it was intended as payment when, as I say, the legatee is a child of testator, and the relations between them were harmonious and pleasant. In such a case the inference would be that the ber-quest was made by the testator as parent rather than as debtor of the legatee. There is nothing in this view antagonistic to the remarks, of Judge ANDREWS in Reynolds v. Robinson, above cited. I do not believe that the testatrix intended to disinherit her son, and if his brother’s contention is correct such would be the result. There are no circumstances justifying such conclusion ; she had no reason for so doing; she does remember him in her will and unqualifiedly gives him $500; at the same time she provides for her other son, the only remaining child, Ai-mer, who was to have' money in her lifetime, which was probably done, as he makes no claim and nothing indicates any dissatisfaction on his part. Under such circumstances the gift to Frank must be regarded a.s one from a mother to her son, and not from a debtor to a creditor.

Decreed accordingly.  