Rost v. Henderson

Simon, J. This appeal is taken from a judgment which refuges to allow to the plaintiff the sum of sixty thousand dollars, by her claimed of the heirs of the late Stephen Henderson, as being the amount of a verbal disposition causa mortis, or request in ex-tremis, mad? and expressed by Mrs, Zelia Elenore Henderson, in the city of New York, a few days and immediately before her death, and which, it is alleged, her surviving husband consented to comply with, and promised to pay, thereby contracting the civil obligation towards the plaintiff, to pay her a sum of money which originally he was only naturally and morally bound for, under the yerbal disposition or request of his late wife. — 469 — The facts established by the record are these : On the 19th of June, 1827, Mrs. Henderson made her olographic will, in which she instituted her husband, Stephen Henderson, her sole and only testamentary executor and heir to all and every part of her estate. The will was written by her in the English language, although her maternal language was French. Sometime in August, 1830, she went to New York : but, according to the testimony of a respectable witness, intimate with the family, Mrs. Henderson did not show to her husband, before her departure, the same friendship that she had before, and the witness explains, that “ it was during the whole year preceding Mrs. Henderson’s departure to the north, that he, witness, noticed the alienation of her sentiments before spoken of.” The friendship between Mrs. Henderson and the plaintiff was very great, and mutual; they were sisters, and the deceased had no children. Mrs. Henderson arrived in New York on the 17th of August, 1830, and was placed by her husband under the charge of Robert Dyson, one of his friends, who had been written to to that effect, and took her lodgings at the American Hotel, where she died on the 19th of September following. During her last illness, Mr. Dyson used to see her very often, at least twice every day from the time of her arrival to the day of her death, and he had always an opportunity of conversing with her fully and freely at every daily visit. She conversed with him freely and confidentially on her private affairs. She frequently spoke of her sister, and manifested the strongest affection for her, She also frequently spoke of a will she had made in favor of her husband; she said that she wished to annul it, in order that she might make another leaving her entire property to her sister. Dyson called, on two several occasions, on Mr. E. Livingston, who was then in New York, to get him to wait on Mrs. Henderson for the purpose of drawing up her new will. Appointments were accordingly made, but she deferred them, as she was too much indisposed to bear the fatigue of proceeding to the business. She afterwards deferred it, from time to time, under the expectation of feeling stronger, but never was well enough to proceed with the preparation of a new will. Under these circumstances, she stated to the witness, that she gave then to her sister the sum of $60,000; that she wished her — 470 — verbal statement to that effect to be taken for and considered as a part of her will; that she wished her said will to be considered as modified in that respect, so that her sister should receive the sum of $60,000; and she then, in the most solemn and impress ive anner, called on Mr. Dyson to promise, on behalf of Mr. Henderson, that the said sum should be paid over by him, after her death, to her said sister. She made this request of the witness several times, and repeated it the evening previous to her death. This disposition was explicitly and repeatedly declared by her to the witness, to be a modification and condition of her said will in favor of her husband; and the witness adds'that he promised, that so far as was in his power, her request should be complied with, and he assured her that Mr. Henderson would perform it. Stephen Henderson came to New York after his wife’s death, and, on being apprised by Mr. Dyson of the dying request and last disposition of the deceased, replied, that he would comply with and carry out the wishes of his deceased wife in that respect; that he would pay over to the plaintiff the sum of $60,000; that he considered it legally and morally binding upon him to do so ; and that it should be complied with to the very letter. He even went so far as to say, that he intended that the plaintiff and her daughter should receive the whole of Mrs. Henderson’s property and more, and that he would not dispose of one cent of it in any other way. The witness further testifies that he saw Mr. Henderson in New York again in 1833, and asked him if he had complied with his wife’s wishes and request, as regarded her bequest and legacy to the plaintiff. He replied that he had done so to the very letter ; and made a statement, that he had made an arrangement for the payment to said plaintiff of the sum of $60,000 at a future time. No communication was ever made to the plaintiff or her husband by the witness, in relation to this matter, until the summer of 1838, when the witness accidentally learned that the plaintiff was not named in Mr. Henderson’s will, and had received nothing from him. No one was present at any of the repeated conversations which were had between Mr. Dyson and Mrs. Henderson; nor was any person present, or within hearing, when Stephen — 471 — Henderson and the witness conversed in relation to the subject under consideration. The record contains also the testimony of Grimshaw, whosays, that he was in New York during the last sickness of Mrs. Henderson ; that she was anxious to have the professional services of Mr. Livingston, for the purpose of making some testamentary dispositions ; that she expressed her disposition to have a former will annulled or changed ; that the disposition by her expressed in witness’ presence was to have a new will made ; and that her jntention was to leave her property to her brothers and sisters in common. The evidence also shows that Mrs. Henderson received from her father’s estate about $112,000; that her husband, as universal legatee of his wife, took possession of the whole of her estate under the will; and that the amount of the inventory of her estate was upwards of fourteen hundred thousand dollars. The plaintiff is not named in his will, except in relation to a few small legacies. It is perfectly clear that under our laws, and our system of jurisprudence, no right of action would accrue from a verbal disposition mortis causa. Art. 1563 of the Civil Code says, positively, that no disposition mortis causa shall be made otherwise than by last will or testament; and, under the provisions contained in the 1569th article, that “ the custom of making verbal testaments, that is to say, resulting from the mere deposition of witnesses, who were present when the testator made known to them his will, without his having committed it or caused it to be committed to writing, is abrogated,” it cannot be contested that such verbal dispositions can have no legal effect. In the case of Barrière v. Gladding's Executor, 17 La. 147, we held that the amount of a note, subscribed by the deceased, and shown to have been executed as a mere disposition mortis cctusa, cannot be recovered ; a fortiori, should the rule apply to the verbal expression of what the testator wishes to be done after his death. But it has been strenuously contended, that this action is not based upon the verbal disposition of the deceased Mrs. Henderson, but upon the subsequent promise on the part of the heir to pay the amount of the verbal legacy; that although the verbal — 472 — disposition is slated in the petition to have been the origin of the obligation, the right of action here exercised results only from the contract made and entered into by Henderson, after the death of his wife, to comply with her wishes, and to pay to the plaintiff the sum bequeathed to her verbally by the deceased. This has been urged with a great deal of force and ability by the plaintiff’s counsel, whose principal position was, in the argument of this cause, that the obligation imposed upon the heir by the testatrix, being only a moral and a natural one in its origin, became subsequently legal and binding upon him, by his positive promise to execute it. it cannot, in our opinion, be controverted, that the obligation contracted by Henderson, after the death of his wife, was, in its origin, a natural one, within the definitions contained in the first and fourth paragraphs of the 1751st article of our Civil Code, which says : 1st. “ Natural obligations are such as the law has rendered invalid for the want of certain forms, or for some reason of general policy, but which are not in themselves immoral or unjust and 4th. “ There is also a natural obligation on those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective/or want of form only.” Now, from several very respectable and distinguished authorities, which we have had occasion to examine upon ihis subject, and among them Toullier, vol. 6, No. 390, who says : “La question se réduit a Savoir si une obligation naturelle qu’on veut eteindre peut étre la cause d’une nouvelle obligation civile qu’on veut lui substituer. Or, ou, pourrait etre la raison d’en douter ?” and who refers to a decision of the court of cassation, which establishes as a principle “ qu’une cause naturelle est suffisante pour la validité des acteswe are not prepared to say, that the present action should be denied to the plaintiff, as arising from the subsequent promise or obligation contracted towards her by Henderson, and that, viewed in this light, she should not be entitled to recover. Indeed, the weight of the authorities appears to be on her side of the question, and her action would perhaps be successful, (Sirey, an. 1811, p. 323. Ib. an. 1827, part 1, p. 139,) if, in the words of Toullier, Vol. 6, No. 187, “ la preuve de l’obligation est faite de la maniere repue par le droit civil,” The question then occurs in — 473 — this case, has the obligation alleged to have been contracted by-Stephen Henderson, been legally, and sufficiently established ? If not, this is an insuperable barrier to the plaintiff’s right of recovery, however satisfactory the evidence may have been with regard to the existence of the verbal disposition. The promise alleged to have been made by the deceased’s husband, after her death, is only proven by one witness, by Mr. Dyson, who states it in his testimony, as fully and as positively as it is possible to be. The facts, however, are not supported by any corroborating circumstances, and under art. 2257, of the Civil Code, all agreements relative to personal property, and all contracts for the payment of money, where the value exceeds five hundred dollars, which are not reduced to writing, must be proved at least by one credible witness, and other corroborating circumstances. It has been ingeniously argued, that this article does not exclude the idea of one witness being sufficient, when according to arts. 243, 244, 245, 246, page 310, of the Civil Code of 1808, the case comes within one of the exceptions therein pointed out, and particularly when the creditor has been unable to procure a literal proof of the obligation. We cannot adhere to such a proposition. Corroborating circumstances are now re quired in all cases ; and as this court said in a case reported 5 La. 268, the exceptions made in the Code of 1808, by which contracts above five hundred dollars, might be proved by a single credible witness, not having been introduced into the present Code, are virtually repealed; and the testimony of one witness alone does not suffice to establish such contracts, without proof of corroborating circumstances. In vain has it been insisted, that the fact of the verbal legacy has been shown by the testimony of Mr. Dyson, and other circumstances going to corroborate it. This is clearly insufficient, as the action being founded upon a subsequent verbal promise to execute the disposition, and to pay the amount of the legacy, it is obvious, that this new obligation cannot be enforced, unless it is proven according to law. This, in our opinion, the plaintiff has failed to do. We think the inferior Judge has come to a correct conclusion on the insufficiency of the evidence ; but his judgment should only have been one of nonsuit. Eustis, for the appellant. E. Briggs F. Grima, Roselius and Grymes, for the defendants.* It is therefore ordered and decreed, that the judgment of the Parish Court be affirmed so as to have only the effect of a non-suit, with costs in the lower court, those in this court to be borne by the appellees.