Brantingham v. . Huff

Haight, J. This action was brought to compel the specific performance of a contract alleged to have been made by Joseph Thorne and his wife, with one Mary Lillie Lee, the mother of the plaintiff, in the city of Hew York on the 21st day of December, 1863, for the adoption by said Thorne and wife of the plaintiff, who was then an infant of the age of one year and eleven months. The complaint alleges that Thorne and his wife agreed to consider the plaintiff as their heir at law and next of kin, and that at their death she should have such property as they might then have to dispose of; that thereupon a written contract of adoption was drawn and executed between the mother of the plaintiff, Thorne and his wife, and one George Kellock, superintendent of the poor, who signed for and on behalf of the infant, the plaintiff herein, with the consent and approval of the board of charities and correction indorsed thereon. Performance of this contract is alleged on behalf of the plaintiff; and further that Joseph Thorne died in April, 1897, leaving a last will and testament, executed on the 23d day of July, 1896, which had been duly admitted to probate, in which he devised all of his real estate to his nieces, Bessie Louise and Martha Jackson, and bequeathed a legacy of $1,000.00 to his friend Dr. Willard Parker Beach, and all of the residue and remainder of his estate to the defendant, Eunice Eleanor Huff, appointing her and his friend Beach executrix and executor of his will. The complaint further alleges that the said Joseph Thorne formed the acquaintance of the defendant Eunice E. Huff in May, 1895, and that shortly thereafter he became of unsound mind, and so continued until the time of his death; that the defendant Huff acquired an improper influence over him, separated him from his wife, and would not permit him to be visited by the plaintiff or his friends, and that said Huff procured him to purchase and deed to her two parcels of real *56 estate specifically described, and to give to her the custody of his personal property amounting to “ several hundred thousand dollars,” and to bequeath the same to her by his last will and testament. It is alleged that this was done in fraud of the plaintiff’s rights, under her contract. The trial court in its decision confirmed the devise of the real estate by Thorne to his nieces and of the legacy of $1,000.00 given to Beach, but held that the bequest of the personal property to the defendant Huff, as well as the conveyance of the two parcels of real estate mentioned, was void; and judgment was ordered to be entered against her requiring her to convey and turn over such real estate, together with the personal property of Thorne, to the plaintiff, who, under the contract, was entitled thereto. It appears that Mrs. Thorne died before her husband, Joseph Thorne, and that he had no children or heirs at law other than the nieces already referred to. Upon the trial of the action the plaintiff, in order to establish her cause of action, read in evidence the deposition of her mother, which she had procured ■ to be taken upon commission in London, England, in which it appears that at the time the plaintiff was adopted by the Thornes in 1863, the mother was living in Hew York and was sick and without means; that while in this condition she was visited by Mr. and Mrs. Thorne. She, then lying ill in bed, and in the presence of Dr. Beach who was then attending upon her, states that the following conversation took place: “ I said to them, you seem to be very nice people but you are only work\ing people, and I would rather have people in a better position to bring up the child. Dr. Beach thereupon said, I 'might rest quite contented that Mr. Thorne was much better off than,I had any idea of, and that they were very estimable people, although he said Mr. Thorne was not a member of the Episcopal church. Then Mr. Thorne said, ‘you will find that May will be well taken care of in every possible way. She will have everything that is ours, and should I die first, I will see that May is left well off. We have no children of our own and no relations to leave my money to and she will be *57 exactly treated in every way as if she were our own child.’ Mrs. Thorne acquiesced exactly in everything her husband said. * * * She did not say much. She was a very silent woman, a woman of very few words. After hearing what they had said, and on Dr. Beach’s recommendation, I told the Thornes that they might have May, who was incorrectly styled in this and other interrogatives as Mary. When I had given my verbal consent, Dr. Beach said that there would have to be a legal paper drawn up and signed by all parties concerned. Then Mr. and Mrs. Thorne and Dr. Beach went away.” In answer to cross interrogatory she further states that she signed the indenture, under which Thorne and his wife adopted May, and thinks that it was witnessed by Dr. Beach and that it was executed some days after the conversation alluded to. She does not remember that George Ilellock nor Simeon Draper were present at the interview. Before reading the deposition above quoted, the defendant objected to it as incompetent under the Code, as relating to the transaction between the witness and the testator and as generally incompetent and ir re velan t. This objection was overruled and an exception was taken by the defendant. After it was read the defendant moved to strike out the entire answer, it being apparent that it was but a preliminary verbal agreement followed by a complete written agreement which embodied the understanding between the parties. This motion was denied and an exception taken. A motion was also made to strike out of the answer the following words: “ She will have everything that is ours, and should I die first, I will see that May is left well off,” as not being within the allegations of the complaint. This motion was denied and an exception also taken. The indenture or contract alluded to in the deposition appears to have been drawn on a printed form or blank in use by the commissioners of charities by the filling in of the names and dates, etc., in the blank spaces left therefor. It contained provisions by which May Lee, aged one year and *58 eleven months, was adopted by Joseph Thorne and Elizabeth, his wife, who resided at Ho. 40 Fifth street in the city of Hew York for the period of sixteen years and one month next ensuing, thus making the child eighteen years of age. It contained provisions pointing out the child’s duty to the Thornes, and also other provisions prescribing the duty of the Thornes to the child ; in which they undertook and agreed to cause her to be instructed in reading, writing and arithmetic, and also in the trade and mystery of housekeeping and of plain sewing, and to provide her with sufficient meat, drink, apparel, mending, lodging and washing; together with all necessary and proper medical attendance and nursing, and the utensils and articles required to keep her healthy and cleanly ; and upon the expiration of the term, that is, upon her arrival at the age of eighteen years, Thorne was to give her a new Bible and a new suit of clothing in addition to her old ones in . wear. He further agreed to report' to the commissioner of public charities and correction, once in each year, the character and condition of the girl. It further contained a covenant of faithful performance, and was executed on the 21st day of December, 1863, under seal, by May Lillie Lee, Joseph Thorne, Elizabeth Thorne and George Kellock, superintendent of the poor, for May Lee, and witnessed by H. W. Boswell. Upon this instrument, under date of Hew York, December 23d, 1863, was indorsed the consent and approval of the board of commissioners of public charities and correction, signed by S. Draper, president, and attested by Isaac Bell, secretary. Humerous questions have been raised and discussed upon the argument of this appeal, but in our consideration of the case we shall limit our discussion to the competency of the oral evidence of the plaintiffs mother, under which the plaintiff claims to have established the contract alleged in the complaint. Hnder the Laws of 1873, chapter 830, provisions were made for the adoption of minors by adult persons under which the child became entitled to all of the rights and subject to all of *59 the duties of the relation of parent and child, except the right of inheritance. But, subsequently, under the Laws of 1887, chapter 703, this provision was amended so as to confer upon children thereafter adopted the right of inheritance. These provisions remained in force until the énactment of the Domestic Relation Law, chapter 272, Laws 1896, sections 60 to 68. It is thus apparent that the contract of adoption did not operate to give to the plaintiff the right of inheritance of the property of which her foster parents died possessed. (Matter of Thorne, 155 N. Y. 140.) The plaintiff’s right, therefore, to recover in this action must rest upon the alleged oral contract. The contract as found by the trial court is that Joseph Thorne “ at the time and place in the complaint stated, made an agreement with the widowed mother of the plaintiff and for the benefit of the plaintiff, then an infant, whereby said Joseph Thorne undertook and agreed upon sufficient consideration to devise and bequeath all his real and personal property to the plaintiff.” Assuming this to be the contract, as we must under the unanimous affirmance of the Appellate Division, we find the trial court disregarding it by confirming the devise under the will of the real estate to the testator’s nieces, and also of the bequest of the $1,000.00 to his friend Beach. In order to confirm these dispositions of his property the trial court must have been satisfied that he was at the time sane and possessed of sufficient capacity to make a will. As we have seen, the contract was made on the 21st day of December, 1863, over thirty-nine years ago. The plaintiff’s mother is the sole person who has given us an account of that transaction. And what is that account ? She testified that Mr. Thorne said, “ you will find that May will be well taken care of in every possible way.” That expression undoubtedly referred to her care and maintenance during the time that they were bringing her up to the period of eighteen years of age. Then follows the statement, “ she will have everything that is ours.” This statement evidently referred to the same period of time during their joint lives in which she was to *60 have the use of everything that they had for use in their family. Then he is claimed to have said, “ should I die first, I will see that May is left well off. We have no children of our .own and no relations to leave my money to, and she will be treated in every way as if she were our own child.” The trial court has made no finding as to whether or not the plaintiff was left well off. Thorne had built her a house and Mrs. Thorne had remembered her in her will, but as to the extent that she had been provided for we are not advised. The statement of Thorne to the effect that he had no relations was not strictly true, for it appeal's that he did have nieces. His statement to the effect that she would be treated in every way as if she were his own child does not necessarily import a promise to devise all of his real estate and personal property to her, for a parent may in the exercise of his judgment, by last will and testament, cut off his own child and deprive him of the right to inherit any part of his estate. Again, we have the written contract executed after the conversation took place as detailed by the mother, drawn in pursuance of the statement of Dr. Beach made after the oral arrangement testified to, to the effect that “ there would have to be a legal paper drawn up and signed by all the parties concerned.” This paper limits the time during which, the relation between the Thornes and the plaintiff was to continue to the period of sixteen years and one month, that being the time that she would arrive at the age of eighteen years. It did not continue their relations longer. The duties of Thorne to the child are fully specified, including what should be given to her upon her arrival at^ that age. It appears to be full and complete, and when we recall the statement of Dr. Beach, immediately following the oral agreement, it would seem that the parties must have intended to have incorporated in the written document the agreement made. We have thus analyzed the testimony of the plaintiff’s mother and called attention to the contract for the purpose of showing that the case is. brought within the rule of law, which, we think, it is our duty to invoke in this case, and that is, that the oral agreement testi *61 tied to by the mother must be deemed merged in the written contract, and, so far as her evidence tends to impeach, change or alter that instrument, it was incompetent. The cases chiefly relied upon by the plaintiff in the support of her contention are those of Winne v. Winne (166 N. Y. 263) and Healy v. Healy (166 N. Y. 624). In the Winne case the agreement to make the child a sole heir and to give him all the property was embraced in a written contract. In the Healy case there was no written contract, but in that case we were precluded from a review of the evidence by reason of the unanimous affirmance of the judgment by the Appellate Division. It was affirmed in this court upon the opinion delivered in the Winne case, and in that case Martin, J., concludes his opinion for affirmance of the judgment, under the peculiar circumstances of that case, by remarking, “Yet, it must not be regarded as an authority for maintaining such an action under different circumstances or upon other proof.” It will readily be seen that these cases have no bearing upon the legal question now presented. In neither of those cases was there an oral agreement which could be merged into a written agreement, or an oral agreement that attempted to vary the terms of the written agreement. We now have a case raised under different circumstances and based upon other proof than that under which the Winne case was disposed of. In the face of the instrument by which the mother surrendered the custody and control of the plaintiff for a limited period only, and Thorne undertook to adopt her and take care of her for such period, evidence was admitted of a verbal agreement made at or before the execution of the contract under which Thorne is claimed to have agreed to make the child his heir at law and next of kin, and upon his death to give her such property as he had to dispose of. The effect of this was to enlarge the obligation of Thorne from that undertaken by him in the written agreement, and to give to the mother the right to reclaim her child on her arrival at the age of eighteen years, and before she had reached her majority. This, we think, cannot be sanctioned. *62 In order to bring a case within the rule permitting parol evidence to complete a written agreement, it is essential that the writing must appear upon inspection to be an incomplete contract, and the parol evidence must be consistent with and not contradictory thereof. But when the written instrument upon its face appears to be complete, containing mutual obligations to be performed by the parties, parol evidence is inadmissible to vary its provisions. This we deem to be the settled rule of this court as to the question involved in this case. This was the effect of our decision in the case of Thomas v. Scutt (127 N. Y. 133), in which the cases upon the subject were very fully collected and discussed. Since then the rule has been repeated and adhered to in House v. Walch (144 N. Y. 418) ; Case v. Phoenix Bridge Co. (134 N. Y. 78) ; Stowell v. Greenwich Insurance Co. (163 N. Y. 298), and Dady v. O’Rourke (172 N. Y. 447). We consequently conclude that the testimony given by the mother of the plaintiff tending to enlarge and vary the contract was improperly received in evidence, and that the judgment should be reversed and a new trial ordered, with costs to abide the final award of costs.