Wright v. Tinsley

Ewing, Judge, delivered the opinion of the court. The agreement which is sought to be enforced was entered into between Wright, the plaintiff, and Caleb Tinsley, deceased, and was, as is alleged, for the benefit of Wright’s daughter, Mrs. Dawson, who was.the grandchild of Tinsley. But it is maintained that, notwithstanding this was the nature of the agreement, Wright could not, under our code, sue, as he was not trustee of an express trust. A trustee of an express trust is defined by our statute to include a person [396] with whom or in whose name a contract is made for the benefit of another, and if the contract in question was for Mrs. Dawson’s benefit, Wright obviously comes literally within this definition, and is the proper party plaintiff. If living, Mrs. Dawson would not be the proper party, for, although she might be beneficially interested, she could not sue, if the plaintiff, Wright, made the contract for her benefit, which fact constitutes him a trustee of an express trust. A trustee may, or may not, join the beneficiary in the suit; and it is no objection therefore that Dawson is named as the party for whose use the suit is prosecuted. Wright, as the trustee, is the real party to the suit, and it is exclusively within his control. On principle, there would seem to be no ground to doubt that a person may, by valid agreement, renounce the power to dispose of his property at his pleasure ; may bind himself to make a will in a particular way on proper considerations ; and that courts of equity would enforce such agreements under proper circumstances, the same as in other cases of valid contracts. While in some of the cases cited the courts refused to decree a specific performance of the agreement, they all recognized the power of individuals to make binding contracts of this nature, and relief was denied on different considerations. A contract to lease by will for a good consideration will be enforced in equity. (Newland Com. 111, 113.) A contract, says Story, to make mutual wills, if one of the parties has died having made a will according to the agreement, will be decreed in equity to be specifically executed. (2 Story Eq. 785.) And upon a like principle an agreement by a father to give by will as much property to one child as another will be enforced. (Xb.) In Garlmen v. Battison, 1 Vern. 48, the heir at law, pretending a right to the land in question, came to the tenant in possession, who likewise claimed an interest in the fee, and threatening to evict her at law, she made a promise, if she died without issue of her body, either to give a specified sum of money or leave him the land. The tenant in possession died having [397] devised her land to her second husband, who had never any . notice of the former agreement. A bill was brought by the heir at law to have this agreement enforced, and it was decreed against the husband. The case of Lord Walpole v. Lord Oxford, 3 Ves. 402, was the case of an agreement to make mutual wills, and although its execution was not decreed because of its uncertainty and vagueness, there was no question as to the power of courts of equity to enforce such agreements, nor of their inclination to do so, where they were sufficiently specific and on proper considerations. In Dufour et al. v. Perran et al., Lord Camden (as quoted by Hargrave in his juridical arguments, vol. 2, p. 310,) says, that though a will is always revocable, and the last must always be the testator’s will, yet a man may so bind his assets by agreement that his will shall be a trustee for the performance of his agreement; as if he covenant to leave so much to his wife or daughter, or if he make a will and covenants not to revoke it, are common cases; and there is no difference, he remarks, between promising to make a will in such a form and making his will with a promise not to revoke it. The will is not set aside, but the devisee, heir or executor is made a trustee to perform the contract. See also the case of Casey vs. Felton, referred to in the same book, 297, in which the contract enforced was a contract to devise. (Fry, Spec. Per. 298.) In Rives v. Executors of Rives, 3 Dessaus. Eq. 194, the agreement was made by the trustees in contemplation of marriage, and among its stipulations was one that the intended husband, in case the wife survived him, would bequeath to her by will a competent and sufficient maintenance during her life. The provision left by the will of the husband not being satisfactory and not' being deemed a sufficient maintenance, upon a bill filed, it was held inadequate, and the court, by its decree, enlarged it. The Chancellor, Des-sausure, in delivering the opinion, observes, that “ the husband, by the agreement, had renounced the absolute power of disposing of his estate at his pleasure, or even at his [398] caprice, with which the law had clothed him; and I can not doubt that he could bind himself to do so.” Alluding to cases of agreement to make mutual wills in a particular way, he remarks, that in these cases courts of equity have held the parties bound, and have made the estate of the party, who did not comply with the agreement, liable to the other party who had complied, on the happening of the event which entitled him to the benefit. He also cites as analogous in principle the case of a father promising, in consideration of the marriage of a child, to leave such child a legacy, which had been held binding on his estate after his death when he had neglected to provide ; and adds that, independently of any preceding decision, he should feel no hesitation to decide this point on principle. In the case before us, the plaintiff, Wright, is induced to waive his claim against Tinsley to a debt of some $900 in consideration of receiving an equal share by his will with the other children of the testator. This proposition was made by Tinsley in order that there might be an equal distribution of his property; it is accepted by Wright with that understanding; and an arbitration is proposed and had with a view to carry out this object. The arbitrators were apprised of the objects of it, and of the existence and contents of the will by which plaintiff’s wife and children are provided for equally with the other children of the testator. By the award made in the case, the plaintiff was to give his note for some $400, received prior thereto as an advancement. This note was accordingly executed and delivered, but with the understanding that it was not to be considered as an indebtedness, but was to be held for the purpose of equalizing the distribution of the property under the will, and as showing the proper deduction to be made from plaintiff’s share of the estate. After this was done, which was in 1847, it is alleged that Tinsley destroyed the will which was the basis of the agreement, and made another, (his last will,) by which the plaintiff and his children were left unprovided for, except that he bequeathed the note which had been given to Tins399 ley for the $400. This arbitration, though unusual in its terms, was in effect a surrender of the debt due from Tins-ley upon the faith of a promise to make the testamentary provision mentioned. On the part of Wright, the agreement has been executed, and the consideration has been received and enjoyed by the other party '; and it has gone to augment an estate out of which Wright’s children were to be provided for, and which provision was the sole consideration for the release of the indebtedness. The authorities cited in support of the position — that where it is not in the power of the defendant specifically to perform the contract, and this was known to the plaintiff before the institution of the suit, neither performance nor compensation in damages will be decreed — can have no application to a case like this ; and, according to these authorities, the rule is not inflexible ; for it is there conceded that in special cases where there can be no specific performance, a bill may be sustained for damages. This ease, however, is not like that of an agreement to convey a particular tract of land, (as in the authorities referred to,) which the party has disabled himself from executing specifically by a subsequent transfer, and the plaintiff has failed on his part as to the payment of the purchase money at the time stipulated. The agreement; here is that the plaintiff’s children shall have an equal share of the testator’s estate. This estate is alleged to be of the value of som'e $12,000 after the payment of debts, and, with the exception of one piece of town property, worth about $3,000, consists of money and personal property. The conversion of the property into money by a sale for the purpose of distribution among the legatees, interposes no obstacle to the execution of the agreement according to its essential terms. The incapacity of the defendants to perform the. contract literally and exactly, in all its parts, is no bar to a performance ; if it can not be performed literally, it may yet be performed as to its substantial requirements; and it is said that all the cases in which compensation is made by the defendant are illustrations of this doctrine. [400] Being of opinion that the facts set forth in the petition entitle the plaintiff to relief, the judgment will be reversed and the cause remanded; Judge Scott concurring.