Frost v. Administrator of Frost's Estate

Aldis, J. The evidence of the plaintiff tended to show that the sum of three hundred dollars per year sought to be recovered on the contract, was a stipulated compensation for her services. I he plaintiff therefore was entitled to the charge which the court gave on this point, that if there was an agreement between the parties by which she was to receive three hundred dollars per year as a compensation for her services, she was [646] entitled to recover therefor upon such contract at such price. And such agreement being proved, the charge of the court, that neither the inadequacy of the services rendered for the amount of the consideration, nor the motives of liberality and affection •which might have induced the deceased to make so large and liberal a compensation to the plaintiff, would impair her right to recover. But this view of the case proceeded wholly upon the ground, that it was the agreement of the parties that the three hundred dollars was to be paid solely and exclusively as a compensation for her services ; and was not to be regarded as a gift or gratuity bestowed upon her with the intention of having her thus receive a share of his estate after his decease. 2. The defendant claimed that his testimony tended to show, that the alleged contract was a mere promise by the deceased, to give her the three hundred dollars per year out oí his estate after his decease ; and that no part of it was in reality a compensation for her services. A promise to give, to take effect only after the decease of the promisor, and not accompanied hy any delivery of the promised gift, is void ; because, first, there is no consideration for it, love and affection being no sufficient consideration ; and secondly, because such promises are in the nature of testamentary dispositions of property unaccompanied with those securities against imposition and undue influence upon testators which the policy of the law requires in the making of wills. The county court seems to have regarded the defendant’s testimony as tending to establish such a defence, and therefore charged the jury, that if the arrangement was intended by the parties as a provision for the future support of the plaintiff by way of gratuity, or as a means oí transferring his estate or a portion of it to her, with a view of preventing it from going to his family, and was not really a compensation for her services, then she could not recover on the contract. Upon this point, the charge went upon the ground, that the whole three hundred dollars was in the nature of a gratuity and no part of it recoverable. 3. Upon the trial, the defendant claimed, that a third view of the case might properly be taken, viz: that the contract to pay the plaintiff three hundred dollars per year was in part founded [647] upon her services and to be a compensation for them, and was in part the promise of a gratuity to be given to the plaintiff, to take effect after his decease, and void for want of co nsideration as to such part; and that the contract was divisible, so that the plaintiff might recover for whatever was intended as compensation, and not recover anything for the gift. The court, declined so to charge, and gave no instructions upon the point whether the contract -might be good in part and void as to the rest; but proceeded to tell the jury that if the contract was not valid then the plaintiff could recover the value of her services on the common counts. It is to this omission to charge as requested that the chief exception is here taken. The defendant’s evidence was regarded by the court, and we think properly, as tending to show that the contract for the whole three hundred dollars per year was intended merely as a mortuary gift, to take effect after the death of the intestate. If it failed to show that, it might certainly be regarded as tending to show that the contract was in part upon such consideration. The evidence as stated in the bill of exceptions seems to us to tend clearly to establish that very point,— to prove that the deceased desired both to secure the services of his sister as housekeeper at a liberal, generous price, and also to provide for her support, by giving her a share of his property after his decease. If, therefore, upon the evidence, the jury might well have found these facts proven, it was the duty of the court to have instructed them as to the effect of such a state of facts upon their verdict, provided the contract was legally divisible. Was it so divisible ? If it was really a contract intended to provide compensation to the plaintiff for her work,— that and no more,— it clearly would not be the right of the court or jury to inquire whether the compensation was too large or not. That must be left for the parties to settle. The deceased had a .right to be strict, to be liberal, to be lavish, as he pleased. But if that was not what the parties intended and understood as between themselves, if they both understood and agreed that it was partly a contract to pay her for her work, and partly a gratuity to provide for her out of his estate, then the law must adapt itself to such intention. She should recover for all that part that was intended as compensa [648] tion ; but why should this entitle her to a legal interest in the gratuity, when under no other circumstances and upon no principle of law could she legally enforce such promise of a gift ? If the respective amounts of the two portions of the consideration had been defined in the contract, there could have been no pretence for joining them thus indissolubly. Each portion would then have depended upon its consideration. The parties not having severed these amounts, it must be for the jury upon the evidence to so separate them, and to allow what is just and fair according to the spirit of the contract and the meaning of the parties as compensation for the plaintiff’s services. In this manner the legal intention of the parties is carried into effect. If the sentiment of fraternal affection fails of its object, it is only in obedience to the general rule of the law,' that a mere moral obligation can not be legally enforced. We think also that the policy of the law in regard to the execution of wills requires the application of the general rule to this case ;• otherwise, by incorporating a slight pecuniary consideration into such verbal or written promises of mortuary gifts.; estates may be disposed of without wills and in a manner the most favorable to the use of undue influence and fraud. The case of Parish et al. v. Stone, 14 Pick. 198, is directly in point. The opinion of Ch. J. Shaw is a most satisfactory exposition of the law, at the time it was given, and we are not aware of any case since decided that contravenes its result. It is urged in this case that the contract was executory, and the services were to be performed and were rendered afterwards upon the faith of the promise of the testator. True, but upon the faith of the promise, as understood and intended by the parties, and as the jury might have found that the parties intended only that a part of the three hundred dollars per year should be in payment for services, the plaintiff in that event must have performed her services relying for compensation only upon such part. Like any other servant, she might expect a gift which she could not legally claim. The effect of the omission of the court to charge the jury on this point is quite obvious. They would say, the court tells us that if we find no valid contract proved, we may allow the plain [649] tiff on the common counts for the value of her services ; but we do find a contract proved that has at least in part a valid consideration and is, therefore, a valid contract, and we are not told that we may divide the contract; as it .is good in part, and we can not sever the good from the bad, we must allow the compensation in full according to the contract. In the absence of specific instructions on this point, we think they would naturally have taken that view of the case, and thus have rendered, as they did, a verdict for the whole amount. In this we think there was error. It is also the opinion of the court that the testimony to show the amount of Frost’s property at the time of the alleged contract was admissible, as tending, in connection with the other evidence, to show that it was improbable that a man of his property would employ a housekeeper at so extravagant a price probably for the remainder of his life. Ordinarily the fact that a man is rich or poor is not admissible as evidence to show that he has or has not made a contract. It is only the surrounding circumstances, viz: the permanency of the contract, which seems to have been intended to last for life, and the apparently gross inadequacy of the service to the compensation, which naturally connect themselves with his pecuniary ability, and make that an element to be weighed in deciding whether the parties must have understood that the three hundred dollars per year was all compensation, or in part a gratuity. Judgment reversed.