[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 402 Contracts claimed to have been entered into with aged or infirm persons, to be enforced after death to the detriment and the disinheriting of lawful heirs, who otherwise would be entitled to their estates, are properly regarded with grave suspicion by courts of justice, and should be closely scrutinized and only allowed to stand when established by the strongest evidence. More especially should this rule prevail when the contract is not in writing, rests entirely upon parol testimony, which is not very precise and somewhat uncertain, and is directly in conflict with the will of the deceased, executed some time before the agreement claimed was entered into, and which remained unrevoked at the time of his decease. The contract, as proved by the testimony in this case, we think, was too loose, uncertain and indefinite to authorize the allowance of the claim made under it, or to justify a judgment for a specific performance of the same in an action brought for that purpose.
The testator being ninety-six years of age, for a long time had resided at Kalamazoo, in the State of Michigan, in the family of his granddaughter, the respondent, and her husband, and with the latter he had been engaged in business. The former was his only heir-at-law, and he had made a will in which he had devised to her and her children almost his entire estate. He, for some reason, became dissatisfied with the husband, and wrote to his brother Guy Markham, who owned a large farm, on which he resided, in the State *Page 404 of New York, stating that he desired to live with him, suggesting that he had enough property to pay for all trouble and expense, and requesting him or one of his brothers to come out and see him to talk and advise with him. Guy Markham proceeded to Kalamazoo, saw the testator, who repeated the proposition to Guy, who assented substantially to the same, but declined to make any definite arrangement without consulting his wife and children.
The testator came to the house of Guy Markham in May, 1871, where he remained until the time of his death in August, 1872. Although the farm belonged to Guy Markham, it was worked by his son William G. Markham, who was an executor of the testator's will, and his three sisters were jointly interested with him in the crops of the farm, and had charge of all affairs connected with household matters. Guy Markham and his wife and the children were convened together at the request of the testator, and it was then, as proved orally, agreed between the testator and the family of Guy Markham, according to the testimony of the latter, that they were to take care of him, and if any of them failed, others were to take care of him for what means he had, which he said was about $8,000. He stated that if he should outlive his means, he wanted they should take care of him any way. William Markham said they would, and all said so together and individually.
Eliza, the wife of Guy Markham, who was one of the family, and present at the time they assembled, testifies that he said, "if they did (take care of him) they should inherit his property." * * * "She heard him say to some of the children that he wanted to place them under obligation to take care of him, and he would reward them for it." Mr. Puffer, a son-in-law, who was present, states that he said if "they did they should have all his property."
Mr. Hovey, a witness for the appellant, swore that the testator said, "they had agreed to take care of him for life, and he was to give them his entire property;" and, on being cross-examined, that he "supposed they had his property." *Page 405
From the evidence to which reference has been made, it would be extremely difficult to determine with whom exactly the contract was made, or what its precise terms were. The forms of expression were various and entirely different. It is not claimed that he was to give them his property before he died, and it is by no means clear that, regarding the language employed, which is most favorable to the appellant, if it stood alone, it meant anything more or less than that he was to make some provision in their favor, by his will or otherwise, on account of his support by them.
That it did not mean anything beyond this is shown by the statement that they should inherit his property, or that he would reward them for it. He evidently intended to say that if they took care of him, he would, by his will, make a provision in their behalf, and thereby leave them his property. Clearly he did not intend to lose control of his property while he lived, as is apparent. In support of the view that he did not understand the arrangement as but preliminary to a testamentary disposition of his estate is the fact proven that he started one day to change his will, and refrained from doing so by reason of the intervention of Mr. Guy Markham. It is manifest that the testator understood that something remained to be done before the alleged contract could be considered as perfect and complete, and that the minds of the parties did not meet as to its exact terms and conditions. It might be as it stood, an agreement with all who were present, or with those who did carry out the contract, and it is not apparent entirely with whom the contract was actually made, or how it could be enforced by the deceased without more explicit, full and certain provisions.
There are also some facts tending strongly to show that the claimants did not expect that the entire estate was to come to them. They knew of the existence of a will, and Guy Markham had been informed that the testator wished to alter it so that Shakespeare would not get any of his property. It is unreasonable to suppose that if the members of *Page 406 the family understood that the alleged contract would be enforced that they would have been content to allow it to remain without any written instrument which should fix and determine their rights, and that they should trust entirely to the loose parol declarations of the testator, mainly dependent upon their own evidence. Not only did they leave it in this condition, but even after the testator's death, for a considerable period, it was not claimed by the executor that he and his sisters were entitled to the whole of his estate. Shakespeare testifies that the executor told him after the testator's death that there was a talk of an arrangement, but it never was completed; that he also said at one time that he should make no claim. The circumstances referred to all tend to the conclusion that the contract was never considered a valid and subsisting agreement.
It was void for uncertainty, and one which a court of equity would not lend its aid to enforce. 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, or can be made certain by reference to such extrinsic facts as may, within the rules of law, be referred to for the the purpose of ascertaining its meaning (Stanton v. Miller, 58 N.Y., 192, and authorities cited). As we have seen, the contract is not sufficiently explicit in its provisions, nor are there any surrounding circumstances which give it point and effect so that its real import can be determined, and within the rule laid down the claim of the appellant must fail. The authorities which are relied upon by the appellant's counsel fall far short of upholding any such claim, and the most which can be urged, when the contract is founded upon such vague parol evidence, is, that the appellant was entitled to recover as a creditor out of the estate of the deceased for the actual value of the services rendered upon a quantum meruit. (Robinson v. Raynor,28 N Y, 494; Martin v. Wright, 13 Wend., 460, and authorities cited; Lisk v. Sherman, 25 Barb., 433.) The authorities bearing upon the point discussed are considered in the opinion of the *Page 407 General Term, and it is not required that they should be further examined.
In regard to the point made, as to the jurisdiction of the surrogate to pass upon and try the validity of the appellant's claim, we are inclined to think that it is brought within the enactment contained in 2 Revised Statutes, 88, § 33, which provides for the proving and allowing of an executor's claim against an estate. This section must necessarily refer to all claims in which an executor is interested, and the circumstances that he is jointly interested in a demand or owns a portion of that in which he has an interest by assignment, does not affect the authority of the surrogate to adjudicate in regard to it. If he had purchased it entirely without any prior interest after he became an executor, a different question would arise; but as he was entitled to have his interest determined, it does not deprive him of that right because he has procured a transfer of other rights. Were it otherwise, it is not apparent how an executor's claim can be allowed.
The case of Tucker v. Tucker (4 Keyes, 136) did not involve the construction of the statute cited, and therefore is not in point.
I am unable to discover any reason why the surrogate should not try and determine the question as to the claim of the appellant and, if sufficiently proven, allow such reasonable amount as may be warranted by the evidence.
As the agreement was void for uncertainty, and the decision of the General Term must be affirmed upon that ground, the other questions made do not demand comment. We also concur in the opinion of the General Term as to the counsel and auditor's fees allowed, and are of the opinion that the judgment should be affirmed, with costs of both parties to be paid out of the estate.
All concur.
Judgment affirmed. *Page 408