This is an action for specific performance of an alleged contract claimed to have been made between the plaintiff and his father. The father was a citizen of New York, but for many years prior to his death he resided with his family in Paris. He died in that city on the 20th of January, 1887, leaving a will executed there, to which was attached seven codicils, the last or seventh of the codicils having been executed on the 17th of January, 1887, a few days prior to his death. By this will and the codicils attached the testator disposed of a large estate, both real and personal, *Page 191 to his widow and children. The will and codicils were admitted to probate in this state, the plaintiff being a party to the proceedings for that purpose before the surrogate. By the last codicil the testator disposed of that portion of his property which had been left by the prior provisions of the will to the plaintiff in trust to the defendant to pay the income thereof annually or at convenient intervals in each year to or for the use and support of the plaintiff during his life, and at his death the said trust should cease and the principal and any unpaid portion of the income of the fund was to go and be divided among his heirs at law. By the prior provision of the will and codicils, after providing for the widow, the testator devised the remainder of his estate in substantially equal shares to his children, and thus by the last codicil these provisions as to the plaintiff were changed into a life estate with remainder to the plaintiff's heirs.
The estate was distributed by the executors in conformity with the provisions of this testamentary instrument. An intermediate accounting was had and a final judicial accounting and settlement subsequently, in which full distribution was made according to the terms of the will, and the executors were discharged from their trust. The controversy in this case does not arise from any defect in the will, but from the transactions which took place many years prior to its execution and to the death of the testator. On the 11th of August, 1873, the plaintiff became engaged to be married to a lady who resided and was domiciled at Baden-Baden. The marriage was preceded by the execution of an ante-nuptial contract or settlement made by the plaintiff and his father and mother of the first part, and the intended wife, with her father and mother, of the second part. By this instrument the testator made some gifts of property to the plaintiff, including a house in Paris, but the main provisions of the instrument were obviously intended for the benefit of the wife. The only provision of the instrument that is of any importance in the present controversy is the following:
"And the said James Phalen and Catherine S., his wife, do *Page 192 further respectively covenant and agree that they will make no distinction between their children as regards the proportion of their estates coming to each under their respective wills; account, however, being taken of any advance which may have been made to either during the lifetime of their said parents, the amount of which advance is in all cases to be deducted from the share to which such child would otherwise have been entitled."
The theory of this action is that inasmuch as the testator left the plaintiff's equal share, not absolutely to him, but in trust as before stated, that the provision of the marriage settlement was violated, and hence conferred upon the plaintiff a right of action for specific performance. The complaint sets out the will and codicil and the other writing referred to, and demands judgment for the following relief: (1) That the trust under the seventh codicil in the fund held for the plaintiff be declared to be created in violation of plaintiff's rights under his contract, and the plaintiff is entitled to the principal of his said fund held by the United States Trust Company. (2) That the trust under the seventh codicil be abrogated, and that the remainders in said fund given by the seventh codicil to the heirs of the plaintiff be extinguished, and that the plaintiff's two sisters, Florence and Catherine, and all other persons who may ever be his heirs at law be barred therefrom, and that it be declared that the United States Trust Company holds that fund under the will as modified by the first six codicils, and (3) that the trust company be directed to turn over all of said fund with the increment thereto and the accumulation thereof to the plaintiff. There are some other statements and exceptions in the prayer, but they have no bearing upon the case. The trust company was the only defendant that appeared in the action and it demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer, but that judgment was reversed by the Appellate Division and the plaintiff has appealed to this court. *Page 193
The first question that is naturally presented is the legal effect and nature of that provision of the ante-nuptial agreement which has already been quoted. It is impossible, I think, to classify it among any of the recognized methods for the devolution of property or the creation of any particular obligation. It is not a testamentary instrument of any kind, since it was not executed according to the laws that provide for the distribution of property to take effect after death. It was not a conveyance of any property whatever. It created no lien upon any of the testator's estate. It was neither an executed nor an executory contract. It will be seen that fourteen years had elapsed from the time that the marriage agreement was made until the testator executed the seventh codicil of his will, which it is claimed constituted a breach of contract and is clearly the sole reason for this action. If this theory of the case be correct it must follow that had the plaintiff, the son, developed in the meantime habits of extravagance or become otherwise improvident and incapable of taking care of a large estate, a contingency that actually happened, the testator had disabled himself from so changing his will as to make what might seem to him a proper disposition of the plaintiff's share under all the circumstances. It is argued that the testator, fourteen years before he executed the codicil, had so bound himself hand and foot that he was not at liberty to make what he thought to be a wise disposition of his property, simply because of his promise in the marriage agreement to make no distinction between his children. This proposition would seem to be so plainly contrary to good sense and to all our notions of law that the mere statement of it is sufficient to show its absurdity. Indeed, it is not attempted to sustain this action upon any principle of law or equity, or by arguments founded upon any rule of law or equity. What is claimed is simply this, that there are to be found among the adjudicated cases remarks to that effect by learned judges in the discussion of cases, but where, it will be seen, the question now before us was not involved. It is perfectly safe to say that in no case has it yet been decided that a man *Page 194 who made a promise such as that contained in this case has disabled himself forever from making such a disposition of his property by will as seemed to him to be wise and judicious. A brief review of the cases cited in support of the complaint in this action will, I think, show that when they are fairly considered and analyzed they decide nothing that sustains the plaintiff in this case. The discussion in the opinions may be omitted. It will be sufficient to point out the questions that were actually involved and decided in the particular case.
The leading case cited and relied upon by the learned counsel for the plaintiff is that of Parsell v. Stryker (41 N.Y. 480). In that case a person let a farm to his grandson for the life of the former. The tenant was bound to occupy the place and do all the work and was to have two-thirds of the produce and the farm was to belong to the grandson on the death of the grandfather. It was subsequently agreed that the grandfather should make a will devising the farm to the grandson. It was held that an action for specific performance would lie for the performance of this agreement. Here the grandson went into possession and occupancy of the farm under a promise that it should belong to him at the death of the grandfather. The court decreed specific performance and the conveyance to the grandson by the defendants in the action, to whom it had been subsequently conveyed by the grandfather in violation of the agreement. That case has little, if any, bearing upon the case at bar. The fact that the grandson, on the faith of the promise, went into possession and occupancy of the farm and worked it, yielding a portion of the products to the lessor, was sufficient to confer upon a court of equity jurisdiction to decree specific performance. The promise to leave the farm to the grandson by will was of no consequence. A verbal agreement to give it upon the death of the owner would be sufficient when accompanied by possession. In fact, that is just what was decided in the case ofFreeman v. Freeman (43 N.Y. 34). In a court of equity the grandson's case was just as strong without any promise to make a will as it was with a promise. *Page 195 That was a circumstance wholly immaterial to the right of action. It was the possession and occupancy of the farm by the grandson under a promise that his grandfather would give it to him that constituted the equitable claim of the plaintiff, and so it will be seen that the case decides nothing that can aid the plaintiff here.
Edison v. Parsons (155 N.Y. 555), cited in behalf of the plaintiff, was a controversy arising out of an alleged agreement between sisters to make mutual wills. On the trial the complaint was dismissed and the judgment was affirmed in this court. The case decides nothing that bears upon the nature or legal effect of the promise, which is the foundation of this action.
In Winne v. Winne (166 N.Y. 263) there was an agreement between the mother of a boy and the deceased. The deceased was to have, and the mother of the plaintiff was to surrender to her the custody and control of the plaintiff. The deceased was to maintain him as her own child, and at her death give him all her property and make him her sole heir, and his mother was to have nothing more to do with him. This agreement was completely carried out and executed, but the deceased died intestate, and the boy, or his representatives, claimed the property owned by the deceased at her death. The latter left no father, mother, child nor descendant, and no child was born to her after such contract was made. The court decreed specific performance so far as to declare that the property belonged to the plaintiff. This court, however, was careful to add at the end of the opinion this paragraph: "While we are of the opinion that specific performance of this contract was properly awarded, this decision is based solely upon the findings of the trial court and the particular facts and circumstances of this case. Yet, it must not be regarded as an authority for maintaining such an action under different circumstances or upon other proof, as the granting or denial of such relief always rests in the sound discretion of the court, and should be denied unless the agreement is fair and just, and its enforcement equitable." It is *Page 196 hardly necessary to add that in the case at bar it is sought to maintain the action under very different circumstances, and under the language of the opinion just quoted it can have no application to this case. These are the cases cited in behalf of the plaintiff from this court. There are numerous cases cited from the Supreme Court which call for a brief review.
Shakespeare v. Markham (10 Hun, 311) assumed the form of an accounting before the surrogate to recover from the estate of a deceased person a large sum of money claimed to be due the contestant for services rendered and for taking care and for supporting the testator in his old age under an expectation of receiving a legacy from him. The testator died without having made any testamentary provision in favor of the contestant. In the Surrogate's Court the claim was allowed, but the determination was subsequently reversed upon appeal and the reversal was affirmed in this court. (72 N.Y. 400.) Just why that case is supposed to be an authority in favor of the plaintiff in the case at bar it is quite difficult to see.
Colby v. Colby (81 Hun, 221) was a case where there was a mutual promise of marriage between the parties, and the learned trial judge held that it was an authority in support of this action. It is stated in the case that the deceased made a proposition of marriage, which she accepted, and that thereupon an agreement in writing was made and subscribed by the parties, by the terms of which it was mutually agreed that the two should be presently married, and that the plaintiff should live with the defendant at his residence and be a faithful and loving wife to him as long as he should live, and if the plaintiff should survive him she should have the said premises as her own in fee simple absolute; and that in pursuance of the terms of said contract and in part performance of said agreement the said Colby executed and published his will in due form of law by which he devised to the plaintiff, her heirs and assigns forever, the whole of said premises, and he agreed that he would not revoke or alter the will. The marriage took place according to this agreement and the parties lived together *Page 197 as husband and wife until the death of the husband on the 10th day of March, 1894. Now, here was an agreement in the nature of an ante-nuptial settlement between husband and wife, whereby the wife was to have in case she survived her husband certain specific real estate. It appeared that the husband, before his death, executed and published another and different will, whereby he undertook to revoke the one made prior to the marriage. It appeared that the widow was in possession of the premises, claiming to be the owner under the contract and demanded specific performance. It was held that she had a good cause of action, but it is obvious that the promise not to revoke the will had little, if anything, to do with her rights. The ante-nuptial agreement followed by the marriage, and the possession by the wife after her husband's death, gave her an equitable claim to the property which a court of equity would, of course, enforce. Suppose the husband had not revoked the will at all, but it had been set aside by reason of some defect in the execution or of undue influence or incapacity or other cause; this would not affect the rights of the wife in the slightest particular. She would still, in virtue of the marriage contract and the marriage and her possession, have good title in a court of equity. So that we see that the promise not to revoke the will was in legal effect wholly immaterial. The case furnishes no support for the present action. Other cases cited upon the brief of the plaintiff's counsel are equally wide of the mark. None of them decide anything that tends to sustain the plaintiff in this case. It is said, for instance, that the case of Johnston v. Spicer (107 N.Y. 185) sustains the plaintiff's contention. I am unable to see that it has any application whatever. The proposition decided in that case was this: Ante-nuptial contracts intended to regulate and control the interest which each of the parties to themarriage shall take in the property of the other during coverture or after death are favored by the courts and will be enforced in equity according to the intention of the parties. No one disputes that proposition. But there is no question in this case between the parties to the marriage. *Page 198 There is no question here with respect to any property as between the husband and wife. The sole question here is whether there was a valid contract between the father and the son, whereby the father bound himself not to make the codicil in question; whether there was a breach of the contract, and if there was, whether the plaintiff's remedy is by action for damages or suit for specific performance.
On the other hand there are three or four quite recent cases in this court that seem to me to be squarely against the plaintiff's contention. In Gall v. Gall (64 Hun, 600) a deceased person had promised that if the plaintiff, then residing in California, would go to live with him in New York he would make a will in his favor. The deceased did make the will, but afterwards he married again and had issue. The action in that case, as in this, was for specific performance, and it was held that it could not be maintained, and that judgment was affirmed in this court. (138 N.Y. 675.)
Mahaney v. Carr (175 N.Y. 454) was a case that in its main features cannot be distinguished from the one at bar. It was an action by a grandchild against the representatives of her grandfather to compel the specific performance of an agreement that if the girl would make her grandfather's home her home and assume the duties of a daughter the deceased would give to her a child's share of his property upon his death, to wit, a one-fourth interest. The courts below sustained the action, but it was reversed in this court upon an opinion which seems to me to answer the argument of the learned counsel for the plaintiff in this case.
Ide v. Brown (178 N.Y. 26) is to the same effect. In that case the plaintiff, a young girl, whose father and mother had died, brought an action to enforce specific performance of an agreement on the part of the deceased to make a will in her favor vesting her with the title to a large amount of real and personal property. It was held that the action could not be maintained. Thus, it will be seen that instead of judicial authority to support this action the decisions of the courts are against it. It can, I think, be safely asserted that there is no *Page 199 case in this state that decides that a promise such as the plaintiff relies upon in this case can be made the subject of specific performance in a court of equity or even of an action at law.
But perhaps the most conclusive argument and authority against the plaintiff's contention is to be found in the history of this very case. It seems that after the probate of the will and codicil the plaintiff filed a petition with the surrogate of New York to revoke the last codicil on the ground of fraud and undue influence.
The question of the validity of this codicil was tried at great length before the surrogate, and he held that the codicil was valid and dismissed the petition. On appeal to the Supreme Court the question was again fully argued and heard and that court unanimously affirmed the decree of the surrogate. An appeal was taken to this court and the decision of the courts below was unanimously affirmed on the opinion below. (Matter of Phalen, 47 N.Y.S.R. 44; affd., 140 N.Y. 659.) The court found, as will be seen from the opinion, that the plaintiff had separated from his wife and was incompetent to manage property by reason of bad habits. All this took place nearly fifteen years ago, and several years after the father's death. Now, if it be true, as asserted upon this appeal, that the father had bound himself by a valid contract between himself and the plaintiff not to make the codicil in question, and it was made in violation of the rights of the son, it was, as between the son and the estate, simply invalid and void and should have been canceled and revoked. The legal effect of the decision is that the testator had the right and the power to make the codicil which constitutes the sole complaint of the plaintiff, and the testamentary power and capacity of the father was in no wise restricted in law by anything contained in the so-called contract upon which the present action was based. It cannot be supposed that this court and the court below would declare valid a testamentary instrument made in violation of a binding contract. The question then before the court is the same question now presented, namely, the right of the father to alter his will and make such *Page 200 disposition of his property as he thought best, and it cannot be doubted that he acted wisely in thus protecting the son from the result of his own improvidence. It would, in our judgment, be very unwise to reopen the controversy now, fifteen years after it had been settled by the court and after the estate had been distributed and the executors discharged. The case in its general aspects does not seem to be so meritorious as to warrant such a result, and I venture to say that not a single case can be found in this state where such an action was sustained. If the testator had, by his promise in the marriage contract, disabled himself from changing his will, then why, it may be asked, did this court hold the last codicil valid?
Passing from the question of the nature and validity of the promise in question, there are two other points that should be stated. If the promise set out in the complaint is a contract or binding obligation, it certainly must be supported by a sufficient consideration. It was a promise, in substance, that if the deceased made a will at all, it should be in a particular form, based upon the principle of equality between his children. Now, what consideration was there for the promise moving from the son to the father? It is said that marriage is a good consideration; and so it is between the parties, but it does not follow that it is a consideration for the promise of third parties. What did the son give the father that would constitute a consideration for the promise? Nothing whatever. It is true that he afterwards married, but his father never requested him to marry and he never promised his father that he would. That was the plaintiff's own voluntary act. Did the plaintiff suffer any detriment in consequence of his father's promise? Certainly not, unless we are prepared to hold that it is a detriment to a young man to marry, sufficient in the eye of the law to form a consideration for a promise on the part of another. I assume that that proposition will meet with no favor from any direction. The deceased secured no benefit, pecuniary or otherwise, from the promise on his part, and the question returns again, what was the consideration *Page 201 moving from the son to the father that supports this promise which is called a contract? If the son had refused to marry and the father had sued him for specific performance, of course, such an action would be absurd, and yet a court of equity will not enforce a promise unless it is mutual. Both parties must be bound, and if both are not bound neither is bound. Consideration is the important element of a contract and must not be confounded with motive, which is not the same thing as consideration. The latter means something which is of value in the eye of the law moving from the plaintiff, either of benefit to the plaintiff or of detriment to the defendant. It is the price or matter of inducement to the contract, whether it be the compensation that is paid or the inconvenience that is suffered by the party from whom it proceeds. (Bouv. Law Dict. 401.) Chancellor KENT thus defined consideration: "There must be something given in exchange, something that is mutual or something which is an inducement to the contract, and it must be a thing which is lawful and competent in value to sustain the assumption." (2 Kent's Com. 464.) So that the promise in this case is not supported by any consideration, and hence the deceased had the right at any time before his death to make such a disposition by will of his property as he thought best.
This is an action in equity. The character of the action is stamped by the relief demanded, and that has already been stated. Unless the complaint states facts sufficient to invoke the jurisdiction of equity, then it does not contain a good cause of action. The rule in such cases is this, "in case a plaintiff has the right to maintain an action at law, or a suit in equity, and he elects to bring a suit in equity, demanding only equitable relief, but fails to state sufficient facts in his complaint to constitute an equitable cause of action, and the defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action, the demurrer will be sustained, though the facts alleged are sufficient to constitute a legal cause of action; and so, in case he elects to bring an action at law, demanding only legal relief, *Page 202 but fails to state sufficient facts in his complaint to constitute a legal cause of action, and the defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action, the demurrer will be sustained, though the facts alleged are sufficient to constitute an equitable cause of action." (Wisner v. Consolidated Fruit JarCo., 25 App. Div. 362; Edson v. Girvan, 29 Hun, 422; Swart v. Boughton, 35 Hun, 281; Willis v. Fairchild, 19 J. S. 405; Fisher v. Charter Oak Life Ins. Co., 20 J. S. 179;O'Brien v. Fitzgerald, 143 N.Y. 377.)
This must be the true rule in such cases, since by section 1207 of the Code, where the defendant does not answer, the plaintiff can have no judgment except that demanded in the complaint. The facts stated in the complaint in this case relate exclusively to the breach of an alleged contract between the plaintiff and his father. If, therefore, the plaintiff has any cause of action whatever, it is an action at law to recover damages for the breach. There are no facts stated that bring the case within the jurisdiction of any recognized department of equity. So that, in whatever aspect the case is considered, it must be held that the demurrer was well taken, and that the judgment should be affirmed, with costs.
CULLEN, Ch. J., WILLARD BARTLETT and HISCOCK, JJ., concur with WERNER, J.; O'BRIEN, J., reads dissenting opinion, and HAIGHT and VANN, JJ., concur in result thereof.
Ordered accordingly.