
    Lizzie Heath, Plaintiff, v. Maria Heath, Individually and as Executrix, et al., Defendants.
    (Supreme Court, Orleans Special Term,
    November, 1896.)
    1. Contract — Agreement to leave property by will.
    A parol agreement that a child should, at the promisor’s death, have all his property, subject to the interest of his widow, made iñ consideration of the adoption of such child and her living with him as his daughter, is valid and imposes a trust upon the property, binding upon the promisor’s heirs, devisees or even purchasers with notice.
    
      2. Same — Specific performance.
    An action for specific performance of such agreement may be maintained where the widow fraudulently procured the making of a will leaving.all the property to her.
    3. Same — Parties.
    The heirs are hot necessary parties to such an action, but' are proper parties to prevent future litigation.
    4. Pleading Misjoinder of causes of action.
    A cause of action against one person for fraudulently procuring a conveyance of property from a decedent in his lifetime cannot be joined with a cause of action against another for fraudulently procuring the making of a Will cutting off the plaintiff’s rights.
    Demurrer to complaint argúéd and submitted at the Orleans Special Term, February, 1896.
    Whedon & Ryan, for plaintiff.
    E. L. Pitts, for defendant Maria Heath, individually and as executrix.
    S. E. Filkins, for defendant Fuller.
   Laughlin, J.

The complaint alleges that in 1871, when plaintiff was ten years of age, Orin Heath, since deceased, made a parol agreement with her father in consideration of her leaving her .parents and living with and assisting him, taking his name and' conducting herself as his daughter until her marriage, that he would adopt her as his own daughter and educate and care for her as such, and would give, secure and make over to her, and she should receive, at his decease, the same share and interest in his ’property, as if she were his. only child, and he were to die intestate; and that she should receive all the-real and personal property of which he was owner at his decease, subject only to his .widow’s right of dower, and. distributive share of personal property. Pursuant to this agreement, it is alleged that the plaintiff’s' parents delivered her over to the deceased and that she fully performed the agreement on. her part. It is" further alleged that the defendant Puller ahd .the widow, who is the executrix, with full knowledge .of- the plaintiff’s rights, and for the purpose.of fraudulently defeating the same, and in the year 1889, about ten months before the-death of said Orin Heath and when he was incompetent, through illness, mduced him. to deed to Fuller valuable lands in'consideration "óf a transfer by the latter to him of lands much less valuable, and that the "widow fraudulently induced him to make a will leaving all his property to her. The deceased left other real" and personal property. " , '

’ This action is brought against the executrix, mdow, heirs, and Fuller and his wife to enforce the specific performance df’ the parol agreement and to obtain a. decree in favor of the_plaintiff.for.all of the property left by the deceased, and for the lands so deeded to the defendant Fuller,-subject to; the rights of the. widow, as such. -The defendant Fuller" demurs to the complaint for misjoinder of causes of action "and failure to state a cause of action against him. The widow individually demurs on the same ground, and as executrix she demurs for a misjoinder of causes, of action.

Orin Heath’s parol agreement that the plaintiff should, at his death, have all his property, subject to the interest of his widow, made in consideration of the adoption of the plaintiff and her living with him as his daughter, was valid and imposed a trust upon 'such property, binding-upon the heirs, devisees and even purchasers with notice, which is enforcible in a court of equity. Gall v. Gall, 64 Hun, 601; 19 Abb. N. C. 19, and note; Godine v. Kidd, 64 Hun, 585; Sherman v. Scott, 27 id. 331; Parsell v. Stryker, 41 N. Y. 480; Schott v. Missionary Society, 41 N. J. Eq. 115; Roehl v. Haumesser, 114 Ind. 311; Sharkey v. McDermott, 91 Mo. 647.

. The deceased could not by law deprive the plaintiff of the "benefit of the agreement, and it is, therefore, immaterial whether the will was the free act and deed of the deceased or was procured through fraud or owing to his incompetency. Kenyon v. Youlen, 53 Hun, 593; Boeman v. Overall, 80 Ala. 451; Mutual Life Ins. Co. v. Holloday, 13 Abb. N. C. 16; Schott v. Missionary Society, supra; Taylor v. Mitchell, 87 Penn. St. 518; Johnson v. Hubbell, 10 N. J. Eq. 332.

The surrogate had no jurisdiction to decline to probate or to revoke the probate of the will on account of the parol agreement with.respect to the title to the property purporting to be devised by "the will, and consequently the probate of the will is not an obstacle to this action. Giles Estate, 11 Abb. N. C. 57; Matter of Keep, 17 N. Y. St. Repr. 812.

The heirs are not necessary parties to this action, but it being alleged that they claim that the will is void, they are proper parties; and future litigation may thereby be prevented.

The plaintiff prays that the widow’s dower may be admeasured and that she may be directed to account as executrix for the personal property that has come into her hands. The complaint is not demurrable on the ground that the plaintiff may have demanded greater relief than she will be'entitled to. The trial court will determine what relief should be granted to the plaintiff, if she succeeds in establishing her cause of action. Murphy v. Whitney, 140 N. Y. 541-48.

The allegations of the complaint with respect to the fraud perpetrated by the- defendant. Fuller upon the deceased, at the time when the latter was incapacitated through illness from transacting business intelligently, constitute a separate cause of action for the recovery of the land thus transferred. The other parties to this action, with the exception of the widow, are not necessary parties to that action, and it will depend upon evidence of an entirely different nature and character from that required to establish the plaintiff’s right to recover as against the widows and heirs of Orin Heath.

It is unnecessary to determine at this time, whether such an action can be maintained against Fuller, for in any event, before proceeding against him, the plaintiff should establish her rights under the parol agreement "as against the heirs, devisees and executrix of the deceased to all the property he left at the time of his decease.

. I am of the opinion that the plaintiff states a cause of action as against. ¿11 of the defendants excepting Fuller; that a cause of action is not stated as ¿gainst him, and that there is a misjoinder of causes of action, on account of the allegations with respect to his having fraudulently obtained some of the property of the deceased during the latter’s lifetime. The demurrers interposed by the defendant Fuller are, therefore, sustained^

The demurrer of Maria Heath individually for misjoinder of causes of action is sustained, and her demurrer on the ground that the complaint fails to state a cause of action is overruled, with leave to the defendant to answer within twenty days, without costs.

The demurrer of'the executrix is sustained, but the ground of the demurrer being removed by this decision, the defendant may answer within twenty days, without costs.

The plaintiff may, within ten days and on payment of'$10 costs, amend the complaint to conform to this decision, by eliminating the allegations with respect to a cause of action against defendant .Fuller.

An interlocutory judgment may be entered- accordingly.

Ordered accordingly.  