In a record containing nearly eight hundred pages of printed testimony, covering over twenty-three hundred folios, it would not be profitable for a single dissenting judge to attempt anything like an adequate presentation of the case as argued by the respondent on this appeal. I deem it, however, proper to state, as briefly as possible, the salient points presented to the court.
In 1863, the mother of this plaintiff, the young wife of a former officer in the English army, came to this country with her husband, who left her with a daughter less than two years old, in the city of New York, while he made a business trip to the Pacific coast. The husband while thus engaged met with an accidental death, leaving his widow stranded in the city of New York, prostrated, ill and penniless. The record discloses that she was in charge of the commissioners of *Page 63 charities and corrections and receiving the medical attendance of a coroner.
This widow, under the stress of these circumstances, parted with the custody of her infant daughter, under an agreement made with one Joseph Thorne, the wife of the latter being present when it was made. It appears that the Thornes were childless and anxious to adopt this infant and rear her as their own child.
The agreement which is sought to be specifically performed in this action by the adopted child, at the time of instituting this suit a wife and mother, was made in the sick room of her mother in December, 1863. According to the testimony of plaintiff's mother, a portion of the agreement was written and a part thereof was verbal.
It appears upon the face of the indenture of adoption, which is the written portion of this agreement that the consent of the commissioners of charities and corrections in the city of New York was, for some reason, deemed necessary, as it is made a part thereof. This indenture was drawn up on the old-fashioned apprenticeship blank, changed to suit the purposes of the occasion, and is evidently the awkward work of laymen, there being no evidence that a lawyer was present.
In the instrument this girl of tender birth is made to covenant that she will not absent herself day nor night from her parent's service without his leave, or frequent alehouses, taverns or playhouses, and in all things behave herself as a faithful child should during said term. The parent is made to covenant that he will teach the child the trade and mystery of housekeeping and plain sewing, and procure and provide for her sufficient meat, drink, apparel, etc.
It is further provided that when the child reaches the age of eighteen years she will receive a new Bible and a new suit of clothes; and in the meantime there was to be an annual report to the commissioners of public charities and corrections as to the character and condition of the child.
It is true the plaintiff's mother testified in this case by deposition taken in England, where she then resided, nearly *Page 64 thirty-five years after this agreement was made. When the reason for this action, begun in October, 1897, is explained, this delay will appear neither unusual nor suspicious. The record discloses that the mother and daughter exchanged letters during the intervening years.
We have here findings of the trial court, unanimously affirmed by the Appellate Division, which fix, for the purposes of this appeal, the terms of this agreement.
The trial court found that Joseph Thorne undertook and agreed, upon sufficient consideration, to devise and bequeath all his real and personal property to the plaintiff; that he neglected so to do, in that by his last will and testament he left nothing to this plaintiff.
The majority of the court rest their decision upon the technical objection and exception of the appellant to the introduction of parol evidence, on the ground that the discussion of the parties at the date of the agreement, made at the bedside of the plaintiff's mother, resulted only in the execution of the indenture already referred to, and that such evidence could not be received to contradict or vary its terms.
Any examination of the sufficiency of the parol evidence, to establish the agreement found by the trial court, is forbidden by the unanimous decision.
The story told by the mother of the plaintiff in stating the terms of the agreement actually made, according to the findings of the trial court, has received a practical construction by the acts of the parties extending over a period of about thirty years.
Joseph Thorne, when this plaintiff was about nine years of age, made a will in which he left her all his property, and between that date and 1892 he, by several testamentary acts, provided for her amply.
When the plaintiff was about seventeen years of age, she contracted a marriage, which was opposed by the Thornes only upon the ground of her extreme youth. For a short time after this marriage there was a slight estrangement between the Thornes and their adopted daughter, but at the *Page 65 end of that period Joseph Thorne erected a house on a part of the lot on which his own mansion stood, with no intervening fence, and invited the plaintiff with her husband and child to occupy it, which they did, and from that time until the year 1892 the plaintiff was treated with all the consideration which had been extended to her in the past.
An imposing array of facts corroborates the agreement, as testified to by the plaintiff's mother, and we are, therefore, brought to the legal question whether the indenture, to which reference has already been made, was the sole result of the convention of the parties, held at the bedside of the plaintiff's mother in December, 1863.
The familiar rule of law is pointed out in the prevailing opinion, that where a written agreement is obviously incomplete and the parol evidence offered is consistent therewith, and not contradictory thereof, it may be introduced. It is argued that to sustain the agreement as found violates this rule.
In order to determine whether parol evidence is competent to help out a written instrument, which is alleged on the one hand to embody the entire contract, and on the other to be only a portion of it, it is always necessary to examine the surrounding circumstances at the time of its execution.
In view of the facts in this case already narrated, and which cannot now be controverted by reason of the unanimous decision of the Appellate Division, it appears that the very obvious reason for the execution of this crude indenture was to secure the consent of the commissioners of charities and corrections, under whose care plaintiff's mother and child in their hour of distress found themselves.
To say that this mother, who was parting with the custody of this daughter for all time, rested satisfied with the provisions made for her by this indenture, approaches the absurd. Thirty years of practical contruction demonstrates that this agreement was largely verbal, as the mother testifies, and made provisions for the child that bore ample fruit in after years.
The consent of the commissioners of charities and corrections, *Page 66 which is a part of the indenture, renders it clear upon the face thereof that it is incomplete and that the other terms of the agreement, resting in parol, were not inconsistent with it, but tend to reveal the exact situation at the time the agreement was made. I have already stated that the reason is clearly disclosed in the record why the mother of the plaintiff testified to this agreement so many years after it was made.
I do not feel justified in this dissenting memorandum to deal in detail with the facts that rendered the last five years of the lives of Joseph Thorne and wife a pathetic tragedy. In October, 1892, the sole appellant in this court entered the life of Joseph Thorne. From that hour she seemed to have dominated him, and his subsequent actions disclose complete infatuation. The appellant, at the time this acquaintance began, resided in the city of New York, but in about four months after October, 1892, Joseph Thorne, who resided on Staten Island, bought a house in the vicinity of his own for the sum of six thousand dollars, and placed the title in the appellant, who shortly thereafter moved into the same with her husband, the latter being employed in a drygoods store in the city of New York at a salary of eighteen dollars a week. Shortly thereafter the appellant took up her residence in the Thorne mansion.
In the year 1895 articles of separation were executed between Joseph Thorne and his aged wife, he giving her $575.00 in cash and an allowance of twenty-five dollars per week during the remainder of her life, although his estate is valued at two hundred thousand dollars.
In January, 1896, Joseph Thorne purchased a house in Sing Sing, N Y, for twenty-two thousand five hundred dollars, putting the title in the appellant. The latter, with her husband, moved at once into this new house, and Joseph Thorne went with them and remained there until his death in the following year. Mrs. Thorne sought refuge in the home of her adopted daughter, the plaintiff, and remained there until her death.
During the year 1896 Joseph Thorne transferred to the *Page 67 appellant the greater part of a valuable personal estate, and also executed a will, in which she was the principal beneficiary. This will made no reference to the plaintiff, the adopted child of the testator.
The Thornes were not destined to long survive this wrecking of the old home; the wife died on the 23rd day of April, 1897, and her husband followed her to the grave in less than thirty days, dying at the house of the appellant in Sing Sing on the 4th day of May, 1897.
This action was begun a little later, in October, 1897, having for its object the specific performance of the agreement made in the year 1863 by plaintiff's mother for her benefit, and to recover the possession of real and personal property, of which appellant had become possessed, in the manner fully set forth in the findings of the trial court, unanimously affirmed by the Appellate Division, and not to be questioned here.
The trial court also found that between the years 1892 and 1897 the appellant, with the knowledge of this agreement and with the intent to defraud the plaintiff of all her interests therein and of the benefit thereof, and by the use of undue influence, fraudulently exerted, procured the said Joseph Thorne, in his lifetime, to transfer and deliver over to her, without consideration, all his personal property and certain real estate.
On the findings an interlocutory judgment was entered requiring the appellant to transfer the personal property and convey the real estate to the plaintiff. A referee was also appointed, under whose supervision and directions the transfers and conveyances were to be made, and referring it to him to ascertain and report what other property and moneys than those specified the plaintiff was entitled to recover from the appellant under the decision of the court.
It should be remarked that certain provisions made by Joseph Thorne in his last will and testament for his nieces and a legacy to a friend were allowed to stand by the judgments of the Special Term and Appellate Division. *Page 68
It appears that the appellant departed the jurisdiction of the court, and the accounting before the referee under the interlocutory judgment proceeded without her, as it was impossible to secure her presence at the various hearings.
It will thus be seen that the issues in this case are narrowed down to a contest between the adopted daughter of the Thornes and this appellant, as the will of Joseph Thorne is carried out in every other respect.
The appellant stands before the court as having obtained this property without consideration by fraud and undue influence and with the intention of defeating plaintiff of her rights under an agreement which had been fully recognized by Joseph Thorne for a period of thirty years.
I am free to admit that in a contest between a plaintiff, in every way worthy, and a defendant, who stands thus convicted by findings that are not to be disturbed on this appeal, if the well-settled rules of law render it impossible for the court to permit a recovery, the hardship of the situation ought not to bar a determination consistent with legal principles. It is because I believe the way is absolutely clear to do exact justice in this case that I am unable to agree with the decision that this court is about to make.
In view of the present state of the law, it is no longer an open question as to the enforceability of an agreement like the one at bar.
Much has been said as to the propriety of the courts decreeing specific performance of agreements resting in parol evidence concerning transactions that occurred many years before the trial. It is sufficient to say that each case must be determined on its peculiar facts, and in that way justice will be done. (Winne v. Winne, 166 N.Y. 263; Healy v. Healy, 166 N.Y. 624;55 App. Div. 315; affirmed in this court on opinion inWinne v. Winne, supra.) A motion for reargument was denied in the Healy Case (167 N.Y. 572).
A number of other cases might be cited on this point, but I content myself with the latest utterances of the court.
We have here involved no rights of those representing the *Page 69 testator's blood, and the case presents none of those features which have led judges and lawyers to question the propriety of enforcing agreements like the one now under consideration; but the sole bald issue is, in my judgment, whether this daughter of the Thornes' adoption shall recover property to which she is entitled in law and justice, or whether the appellant, with full knowledge of the existing agreement, and with fraud and undue influence, shall wrest it from her.
I vote for affirmance.
PARKER, Ch. J., GRAY, O'BRIEN and VANN, JJ., concur with HAIGHT, J.; BARTLETT, J., reads dissenting opinion; CULLEN, J., not sitting.
Judgment reversed, etc.