
    Abraham H. Sarasohn, Appellant, v. Rebecca Kamaiky and Others, Respondents, Impleaded with Others.
    First Department,
    June 14, 1907.
    Contract—agreement to make testamentary provision—failure to show delivery of contract — enforcement refused because of ambiguity ■ of instrument. . .' v
    In order to recover upon a contract to make a testamentary provision, the contract must not only be certain and definite and founded upon adequate consideration, hut must also be established by the clearest and most convincing evidence: ...
    When it appears that the contract to make a gift by will was never delivered to . the promisee, but placed in the hands of the draftsman who retained it without delivery for over two years, and the depositary -is not put on the stand to show why it was not delivered, although he was present in court during the entire trial, the complaint should be dismissed for failure to show delivery.
    When it. is shown that a. party to a litigation, has evidence within his control -and does not produce it, an unfavorable, inference may he clrawn'.
    Equity will refuse to specifically enforce an agreement to make a will unless the agreement is certain in its terms, and when it is impossible to determine whether a - percentage Of the promisor’s share in a partnership which he ag'reed to bequeath to the promisee- was to be figured upon the whole value of the partnership or . merely upon the promisor’s interest therein, the contract is too indefinite for enforcement. ■ . .
    Láughmn, J., dissented, with memorandum.'
    - Appeal by the plaintiff, Abraham H. Sarasohn, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on tlie 13th day of February, -1907, upon the decision of the court, rendered after atrial at the New-York Special Term,, dismissing thecomplaint upon the merits, and also from an order entered, in said clerk’s office on the 13th day of February, 1907, granting to the respondents an extra allowance.
    
      Edward W. S. Johnston of counsel [Abraham H. Sarasohn in person], for the appellant.
    
      Nathan Bijur [G. H. Engelhard with him on the brief], for the respondents.
   Clarke, J.:

The plaintiff, who is the son of Kasryel H. Sarasohn, deceased, brings this action against his mother, his brother, the children of a deceased sister, and the. administrators of his father’s estate to compel the specific performance of a contract alleged to have been made between' himself and his father. The contract sued on was alleged to have been made on or about the 9th day of February, 1904, was written in 'the Hebrew language by one Widrewitz, a Hebrew rabbi, was subscribed by Kasryel H.- Sarasohn and the plaintiff .and was thereafter and. remained in the possession of said Widrewitz until after the decease of said Kasryel H. Sarasohn, was subsequently placed in the possession of one Arnold Kohn under a Stipulation, who produced it under subpoena at the trial of certain probate proceedings in the Surrogate’s Court, and having been left in the possession of the Surrogate’s Court, was produced from the files of that court on the trial of this action.. A translation of said paper writing is as follows: Memorial words concluded between Rabbi K. H. Sarasohn and his son Chaim (Hyman).

“ 1. Rqv. K. H. Sarasohn obligates himself to give his son above mentioned after his wedding, which will take place shortly with his bride-elect, the sum of one hundred dollars each and every.month, besides suitable apartments and offices in his house, Ho. 187 East Broadway, without charge. ' This obligation shall continue as long as the above-named Hyman has not a share in the business of publishing newspapers of the said Rev. K. H. Sarasohn.

“ 2. In the coming spring the said Rev. K. H. Sarashon will go to Europe; the entire period which he shall remain in Europe his said son shall stand in the place of .his father to give (or express) his opinion in the said business of publishing newspapers above mentioned, but in all matters relating tp. politics - and socialism he shall not have any say. ■ .

“ 3. The Eev. K. H. Sarasohn obligates himself to make a will as is required, that after the passing away of the days and years there shall be to the said son Hyman above mentioned twenty-five per cent of the-said business of printing newspapers ; this share is only to' Hyman personally or to his descendants; but if, God forbid, it shall happen that said Hyman shall have .tro children surviving him, his wife shall not inherit,, only the other heirs of the said Eabbi K. H. Sarasohn. And the house 185 East Broadway there shall be to him one-four,th paid. '.-••••

“ 4. If after the passing away of the days of the Eev. K. TI. Sara-solin there will not be . left of'him with what to satisfy:the three grandchildren of my daughter Eebecca, of blessed memory,, then it is the obligation of the said Hyman to satisfy each with.the sum of $2,000 or to give them five per cent of the said businessof publishing newspapers. • • '

“ 5. All the mortgage that the said Hyman holds on- the mother 'shall be at once void (or shall he; cancelled); All this is concluded in the presence , of the undersigned.. We, the undersigned, have accepted all the foregoing with our good will, with a perfect under-. standing and with á full and settled mind. We have come to this signature the twenty-third of the month of Schebat,. 5664, here in Ee.w York.” ..

It appears ..that the , Eev. Kásryel H. Sarasohn- was a, devout - Hebrew rabbi, and in 1874 founded in the city of. New York á business of printing and publishing newspapers in the Yiddish lan-' guage; that the- elder sdn, Ezekiel, came to this country in 1876 and lias always been connected with said newspaper business,-and that for a number of years', he and his brother-in-law, Kamaiky/who married the only daughter of Kasryel Sarasohn, were partners with the elder Sarasohn. in the conduct of that, business, each having ,a one-third interest thereof. The plaintiff came to this country about a year after his elder brother, and although as a boy he did some work ip the. business, yet he .was educated as and is a lawyer and had'no'interest in the newspaper business. From small beginnings that business had so grown that . after* the death of Kasryel his' one-third interest was sold by Ms personal representatives to the surviving partners for the sum of $94,000.

It appears that a paper writing, purporting to be the last will and testament of Kasryel H. Sarasohn, was offered for' probate in the Surrogate’s 'Court ,of the county of New York, and that objection being made probate was refused on the ground that the said paper was not subscribed by the decedent in- the presence of one of the two purported witnesses thereto, was not acknowledged by him to said witness, and the said decedent did not at the time of making such subscription, or any other time, declare to the said witness that the instrument so subscribed was his. last will, and testament? That paper writing was as follows:

“As a human being does not know his end, and it is incumbent upon him while- he is still alive to provide that his end shall be well, I express my wish in writing how after my death all my property which I have accumulated with Divine Mercy shall be divided, and I request and command my sons to comply with all that is set forth in this will, (a) At first there shall be paid all debts which are due or shall become due from me until the last penny, (b) All that I' am possessed of, either in property, cash, and my share in the business of newspapers, shall be ten ]3er cent thereof given to charity; two-thirds here, to wit., to the' Talmud. Torah, and to the Hachnotliali 'Orchim, and to the Montefiore Home, and one-third balance shall be sent to the Holy Land to the Home for Aged, and the Hospital. From the remainder of my share shall .be to my son Hyman Abraham twenty per cent and the balance thirteen and a third per cent shall be equally divided between my son Ezekiel" and one-half to the orphans of my daughter Rebecca, of all that remains to the partnership of which to. me belongs thirty-three and a third per cent, (c) To my wife shall be given fifty dollars each week for the 'balance of her life, and security shall be given to her for the same, (d) To the orphan girl which I have brought up shall be given five hundred dollars, (e) To my brother five hundred rubles shall be given annually, (f) To David Bloch .there shall be paid the sum of three hundred dollars for an old debt, (g) To Kram shall be paid three hundred and thirty-three dollars due oh my share. -,(h) On the note which my son Ezekiel.holds. against me, only two thousand dollars is due. (i) If.it shall be impossible for Kamaiky and my son Ezekiel to continue, in partnership with my son Hyman Abraham, for' convincing ■ reasons, they have the privilege to pay him his .share and shall be determined by three persons consented to by all parties. I-do request my sons and son-in-law to publish my father’s work Ügas Elion,’ and I ask them to help my relatives as much as in their power. All of the' above I direct of my free will and With clear understanding. In the- presence of Rabbi 0= H. Widrewitz and Mr. Enoch Wollberg. And I have signéd my name this fourth day, the month of Tevath, -5665. , •
“KASRYEL HIRSCH SARASOHH.
“ Sealed, signed arid delivered.. In, our presence it was signed.
“ Chaim Jacob Widrewitz.
“ Ebooh Wollberg.”'

The'learned Special Term, after a trial, entered a judgment dismissing the complaint upon the merits. It seems to me that that judgment should be sustained upon two grounds:

First. That the plaintiff did not sustain the burden of establishing the due execution and delivery of the alleged contract sued upon so as to make it a valid and enforcible instrument. The father, having died without leaving a valid will,' the plaintiff seeks to prevent the due distribution. of his estáte in accordance with the laws of the State governing intestacy, and seeks.to substitute for a last will' and testament made, published and declared in accordance with the form and requirements of.the law, a contract to make a will. As said by the Court of Appeals in Rosseau v. Rouss (180 N. Y. 116): “We have repeatedly held that such a contract must not only be certain and definite and founded upon an-adequate consideration, but also that- it -must be established by the clearest and most convincing evidence.” •

There is no evidence showing, or tending to show, a delivery of this instrument. There is no evidence showing, or tending to show, that the plaintiff ever had it ip his possession for one instant,, and there is no evidence showing, or tending to show, its delivery to any one for him, or for any purpose indicating that Kasryel H. Sarasohu intended it to be an effectual disposition of his property. The evi-' dence is conclusive that from the time it was written until after the death of the elder Sarasohn it remained in the possession of Rabbi Widrewitz, who wrote it. How it happened to be in his possession, why he kept it, why no. other members of the family, who apparently were as close and dear to the father as the plaintiff, knew of it, is not explained. And yet the one man in all the world who could have explained how it happened to be drawn, what occurred when it was signed, why it was not delivered to the plaintiff, and how it happened that it was put and kept in his possession, was not put upon the stand by the plaintiff to clear up this most important lapse in the testimony as to the validity of this instrument, although, as it appears by the record, he sat in court during the trial of this case. It might have been put in escrow to become effective upon some future contingency; it might have been a tentative draft; it might have been drawn to relieve the father of the importunities of the son, or in ordey that a copy might be made from it for the purpose of influencing those interested in the marriage of the plaintiff and his then affianced bride without any intention of accomplishing anything except moral suasion. These are a few of the inferences that may be drawn from the fact of the presence in court of the one important witness, and that the plaintiff did not or dared not put him upon the stand. A lawyer himself, appearing as attorney for himself aided by most able and careful trial counsel, it is inconceivable that if the testimony of Widrewitz would have aided this plaintiff in his efforts to obtain this much larger share of his dead father’s estate than he would be entitled to if there were no such valid instrument, that he would not have been put upon the stand. It is a familiar proposition of law that when it is shown that a party to a litigation has evidence within his control and does not produce it an unfavorable inference may be drawn. (Bleecker v. Johnston, 69 N. Y. 313; Sugarman v. Brengel, 68 App. Div. 377; Kirkpatrick v. Allemannia Fire Ins. Co., 102 id. 329.) The importance, I might say the necessity, of the evidence thus withheld is illustrated by the different positions taken by the plaintiff. In his original complaint, verified by him on March 29, 1905, it is alleged that on or about the 9th day of February, 1904, this plaintiff * * * and his said father * * ' * duly made, executed and delivered to this plaintiff his certain agreement in writing * *

In his amended complaint, verified by the plaintiff on the 14th of ¡November, 1905, it is alleged “That in order to commit to-writing a parol agreement to the samé effect made in or about the month of October, 1903, o.n or about the 9th day of February, 1904, the plaintiff * "x". * and the said Iiasryel H. Sarasohn, * * * entered into an agreement ■ in writing bearing date that day * * * ” '

In support of the claim thus made of. a prior oral agreement of which this paper was a memorandum, testimony of witnesses as to prior statements of the father was admitted in evidence which, otherwise would have been inadmissible. ' But there is no evidence sufficient to establish the making of any such oral agreement of which this paper is a mére memorandum. This paper was the contract between the parties if any there was. Yet even in the amended complaint and. in the 3d paragraph thereof it is alleged “ that at the time of the execution and delivery of the said contract so made * *

The pleader evidently had in, mind this necessary element of 'delivery hi the establishment of. the validity of such an alleged contract. ,

There was produced upon the trial by-counsel for the plaintiff, without explanation of how it came in his possession, a copy of this paper writing, containing 'the words copied from the body of the writing which lies, in my hand, letter for letter,” and said additional words bore at. the foot thereof the original signature of said Kasyrel H. Sarasohn and the signature of ¡Rabbi Widrewitz.

. This is not sufficient- proof of the delivery of the paper writing of which it purports to be a copy,, because we again have the fatal' omission of explanation by Widrewitz óf how tlie copy happened to be made and-what becaipe of it. It does not purport • to • be a duplicate; it is not the second part of an indenture; it does not-bear the signatures of the original parties, for the signature of the' elder Sarasohn is attached to, the-certificate óf accuracy of the copy and hot in execution of the papér itself.

Delivery would certainly be necessary to - make: such a paper as the..one sued on effectual as'a contract. ■ If, without delivery, Sarasohn had made a dozen of such papers which were kept in his desk under his own control, and there discovered aftér his death, no effect could be given to any of them. It seems to me, therefore, that the plaintiff has failed in an essential ¡Dart of his case and that for that reason alone the judgment was correct.

Second. It is .an elementary principle in the exercise of equity jurisdiction that a contract will not be specifically enforced unless it is certain in its terms. (Stanton v. Miller, 58 N. Y. 192; Shakespeare v. Markham, 72 id. 406; Winne v. Winne, 166 id. 272; Rosseau v. Rouss, supra.) It seems to me that this paper, even if,, arguendo, it be conceded to have been*executed and delivered, was too indefinite and uncertain to permit a court of equity to decree its specific performance. It provided: “There'shall be to the said son Hyman above' mentioned, twenty-five per cent of the said' business of printing newspapers. * * * 4. If after the passing away of the days of the Rev. K. H. Sarasohn there will not be left of him with what to satisfy the three grandchildren of my daughter -Rebecca, of blessed memory, then it is the obligation .of the said Hyman, to satisfy each with the sum of $2,000 or to give them five per cent of the said business of publishing newspapers.”

The plaintiff claims, irrespective of certain shares of stock in the Jewish Press Publishing Company, that as the value of the business of printing said newspapers has been established by the sale of the one-third thereof for $94,000 to be $282,000, he is entitled to one-fourth thereof^ that is, $70,500, which, taken from the $94,000, his father’s share, leaves $23,500 to be distributed between his mother, his brother and his deceased sister’s three children. If, however, the twenty-five per cent of the business of printing newspapers means twenty-five per cent of the share of the elder Sarasohn in the business of printing newspapers, plaintiff would be entitled only to one-fourth" of $94,000, or $23,500-, instead of $70,500; and if we look at the attempted will, which the plaintiff offers as proof tending to establish the validity of his contract as an effort upon his father’s part to perform, for an indication Of the father’s interpretation of the intent of the contract, we find that, after providing for the payment of his debts to the last penny, of all that he possesses' in property, cash and his share in the business of newspapers, he' gives ten per cent to charity. “ From the remainder of my share shall be to my son Hyman Abraham twenty per cent and the balance thirteen and a third per cent shall be equally divided between my son Ezekiel and one-half to the orphans of my daughter Rebecca, óf all that remains to the partnership of which to me belongs thirty-three and a third per cent.”

Ignoring for the moment the bequest of ten per cent to charity, we find that from the remainder of the father’s share “of all that remains to the partnership of which to me belongs thirty-three and a third per cent,” w;as given twenty per cent to Hyman. Twenty per cent of $94,000, his share, less ten per cent for charity, making $84,000, is $16,800. But if the thirty-three and. one-third per cent is to be treated as the principal sum, and" the .twenty per cent thereof does not mean twenty per cent' of 'one hundred per cent, but the proportionate share that twenty is to thirteen and one-third out of a total of thirty-three and one-third, we then get sixty per cent, of $84,000, or $50,400, so that upon these constructions we get as his possible share these amounts : $70,500, or $23,500, or $16,800, or $50,400. Under section -4 of the alleged" contract the obligation is to give the three children of Bebecca $2,000 each, that is, $6,000, or five per cent of the business of publishing newspapers. This five per cent would' be $14,100, if . it is to be construed as the - plaintiff asks us to construe the 3d clause, that is, five per cent of the whole business; or it would be $4,700 if it.is to be construed as five per. cent of" Kasryel’s one-tliird of - the business, or if' calculated as provided by the. will as one-half of thirteen and one-third it would- be $11,800, treat-ing the thirty-three and one-third'as a whole, or it would be $6,720 if we .treat it as the literal reading would require one-half. of thirteen and one-third per cent of this one-third of. the -partnership.

If we consider the shares of stock in the Jewish Press Publishing Company which are conceded to come within the phrase of the alleged contract “ business', of printing, newspapers,” these difficulties aré presented: The total number of shares issued by the corporation was three hundred and ninety. According to the plaintiff’s interpretation he would be entitled to twenty-five per cent thereof, or ninety-seven and one-half shares. But Kasryel Sarasohn owned but eighty seven shares. The plaintiff suggests, no satisfactory solution of this dilemma. If the twenty-five per cent is to be calculated on the eighty-seven shares he would be entitled to twenty-one and three-fourths shares:" But this interpretation of the paper he strenuously opposes. These varying results, and there are other possible combinations of figures suggested by the various counsel, demonstrate, I think, that it is impossible for a court asked to compel the'Specific performance of a contract to determine with' that precision which is required in such an action what thecontract really means. ■ Without considering the many other questions presented by this record, we hold that the plaintiff has failed to prove the paper writing sued on to be a valid executed and delivered contract so" certain and definite in its terms as to permit a decree of specific -performance thereof.

It follows that the judgment and order appealed from should be affirmed, with costs.

Scott and Lambert, JJ., concurred; Ingraham, J:, concurred oil first ground stated in opinion; Laughlin, J., dissented.

Laughlin, J. (dissenting):

I am of opinion that the execution of the contract was sufficiently shown and that, reasonably construed, it is not indefinite, but shows that the decedent agreed to give plaintiff an interest equal to twenty-five per cent of the entire business, and not merely twenty-five per cent of. his thirty-three and :a third per cent.

Judgment and order affirmed, with costs.  