I dissent. It may be conceded that a court of equity will specifically enforce an agreement *Page 92 of the kind under consideration, under certain conditions. Among such conditions required are, that the services rendered or acts done by the promisee are not susceptible of a money valuation; that they are of such peculiar character that it is impossible to estimate their value by a pecuniary standard, and where the party who has performed such services could not be restored to the situation in which he was before the rendition of the services. But the question whether relief shall be granted or denied in a particular case addresses itself peculiarly to the conscience of the chancellor, and before plaintiff entitles himself to it many considerations are to be entered into and are to be weighed. If the contract be indefinite and uncertain, and a remedy asked for harsh or oppressive or unjust to innocent third parties, or against public policy, or inequitable, such a contract will not be specifically enforced. Owens v. McNally, 113 Cal. 444, was a case in many essential particulars similar to the one under consideration. Lawrence McNally was a brother of the plaintiff's mother, and resided at the time at Eureka, Humboldt County, and it is found by the trial court in that case that in 1881 said McNally, never having been married, and fifty-four years old, went to the state of Michigan, and then and there represented to the plaintiff and to her parents that he was possessed of money and property worth more than $20,000, and that he had no one to care for him; that he desired that the plaintiff should leave her home and parents and accompany him to California, and thereafter live with him and care for him; and then and there said Lawrence McNally promised and agreed with plaintiff that if she would accompany him to California and live with him and care for him he would give or bequeath to her all property which he might own at the time of his death. Under this agreement plaintiff left her home and parents, accompanied McNally to California, and from that time until his marriage in 1893, lived with him and took care of him, and devoted her time, labor, and energy caring for his health and comfort, and duly performed all the conditions of said contract on her part to be performed by the terms thereof. McNally, however, married, and at his death left separate estate in real and personal property in the county of Humboldt of the value in excess of $20,000. The court having found the contract *Page 93 as stated in the complaint, and also that the plaintiff had performed all the conditions on her part to be performed in accordance therewith, as a matter of law concluded that as the contract was in relation to real property it was within the statute of frauds; that the services rendered and the care bestowed by the plaintiff under the contract were not of so peculiar or exceptional nature as that they could not be compensated for in money, and that her performances of these services and her bestowal of this care did not operate as a part performance, which would take the contract out of the operation of the statute of frauds; that the contract was in relation to both real and personal property, and it was therefore to be regarded as an entirety and could not be enforced as to the personal property; and judgment was accordingly entered for the defendants, who consisted of the widow of the deceased and other heirs at law. On appeal this court says: "The court by its decree denied plaintiff specific performance. We think the decree was just, and that plaintiff, for her recovery, must resort to an action in quantum meruit," and judgment was affirmed.
The court below in this case finds "that the services so rendered said Healy by plaintiff from the 5th of July, 1881, until the death of said Healy, were of a peculiar and exceptional character, incapable of being compensated for in money, and such services were not intended by said Healy or this plaintiff to be compensated for in money." This, however, is a mere conclusion not supported by the facts of the case. The facts as found are, that the plaintiff, at the request of the deceased, in 1881, when about fifteen years of age, left Ireland and accompanied his uncle to this country, and that upon reaching the home of Matthew Healy — being his ranch in Lassen County — said Healy put plaintiff to work on and about said premises and business, and thereafter, for several years, personally instructed, directed, and advised plaintiff as to the mode and manner of doing his work and caring for and managing the cattle and horses on said ranch; that the plaintiff, acting under the directions and advice of his uncle, in the performance of this work, endeavored to qualify himself to properly care for and manage the property and business of said Healy, and until the death of said Healy, September 26, 1897, devoted his entire time, labor, and *Page 94 energy in learning the business of said Healy, and in conducting and carrying on and managing the same to his entire satisfaction. The work and services performed by the plaintiff required no professional skill or knowledge, and was no different from that that might be performed by any ordinary employee. There is nothing in the nature of such services to justify the conclusion or inference that they cannot be compensated for in money. In fact, that is the ordinary and universal mode of compensating such services. Nor can it be said that to leave Ireland and come to this country constitutes such peculiar services that they cannot be compensated for in money. Thousands and hundreds of thousands have emigrated from Ireland to this country, paying their own expenses, and considering themselves well compensated therefor in the wider field for enterprise and better opportunities afforded in this country than in the old country they had left. The property owned by Healy at the time of his death, as found by the court, consisted of a large stock ranch in Lassen County, on which were about seventeen hundred head of cattle and four hundred head of horses; also another ranch situated in another part of said county, on the south fork of Pit River, known as the "Healy River Ranch," and another ranch in the same county, known as "Spires Place," a certain tract of land near the town of Alturas, and he also owned a ranch in Corvallis, Oregon, known as "Healy's Oregon Ranch," and certain lots of land near the city of Los Angeles, and a large amount of machinery, implements, wagons, and other personal property used on a ranch, together with household furniture, all of the value of $100,000.
Another peculiar feature of this case is, that it is not brought against the administrator, but against the brother and sister of the deceased and certain nephews and nieces, his heirs. Letters of administration upon the estate of Matthew Healy, deceased, were issued to J.W. Hosselkus on the first day of November, 1898, since which time he has been, and still is, the acting, qualified administrator of said estate, and as such took possession of all the property of the estate, both real and personal, and at the commencement of this action he was, and still is, in the possession of the same as such administrator, and administering said estate; that Goodwin Goodwin have been at all times and still are the attorneys *Page 95 for said Hosselkus as administrator of said estate, and they are also, and at the commencement of this action were, the sole attorneys for the plaintiff in the prosecution of this action.
The administrator's relations to the estate are those of a trustee for the benefit of the creditors and heirs, and his attorneys are in the same confidential relation. (Bergin v.Haight, 99 Cal. 56.) The act of such attorneys of the administrator is the act of the administrator, and neither he nor such attorneys are permitted to act adversely to their trust: "Neither the trustee nor any of his agents may take part in any transaction concerning the trust in which he or any one for whom he acts as agent has an interest, present or contingent, adverse to that of his beneficiary." (Civ. Code, sec. 2230) "A trustee may not use the influence which his position gives him to obtain any advantage from his beneficiary." (Civ. Code, sec. 2231) "No trustee, so long as he remains in the trust, may undertake another trust adverse in its nature to the interest of his beneficiary in the subject of the trust, without the consent of the latter." (Civ. Code, sec. 2232) "Every violation of the provisions of the preceding sections of this article is a fraud against the beneficiary of the trust." (Civ. Code, sec. 2234) The beneficiaries in this case are the heirs of Matthew Healy. The defendants constitute those heirs as well as the plaintiff, McCabe. It would not be contended for a moment that the administrator of the estate, had he been a lawyer, could have brought this suit as attorney of plaintiff, while acting as such administrator, and his attorneys occupy the same position. In other words, he and they, in contemplation of law, are one in everything pertaining to the settlement of the estate and its proper distribution among the heirs entitled thereto. In the case of Owens v. McNally, the action was commenced against the administratrix of the estate as well as the heirs. It is very plain in this case why it was not commenced against the administrator, as in that case his attorneys could not also have been attorneys for the plaintiff.
Persons in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased, *Page 96 cannot be a witness. (Code Civ. Proc., sec. 1880, subd. 3.) The purpose of this provision of the law is very obvious. This action, however, as already stated, is not against the administrator, and, technically, it is not founded upon a claim or demand against the estate; but in substance it is a proceeding to capture the whole estate in bulk upon this parol agreement, in reference to which one party is left free scope in giving his testimony, whereas the lips of the other party are closed in death.
This does not present a case where equity and good conscience require that a specific performance should be decreed, but it is rather one where plaintiff should be remanded to his action at law as upon a quantum meruit, the same as in Owens v. McNally,113 Cal. 444.
Since this dissenting opinion was written, the main opinion has been revised and somewhat elaborated. In the revised opinion the fact that McNally married and Healy did not, it is claimed, distinguishes that case from this, and that though the court was right in denying specific performance there, the contract should nevertheless be specifically enforced here. An agreement of the kind here in question, it would then seem, depends upon the fact whether the party who makes it subsequently marries or not. If this be so, it would then render the contract objectionable on the further ground of uncertainty, and, as said in the McNally case, the contract, among other requirements, "must be definite and certain."
The Estate of Healy referred to was argued and submitted with this case, and the opinion in that (to which I dissented) is not controlling authority in this, simply because it happens to be filed before.
Rehearing denied.
*Page 97Beatty, C.J., dissented from the order denying a rehearing.