Haberman v. Kaufer

Gkey, V. C.

The title to the lodging-houses passed from Michael Haber-man, by his will, to Caroline Haberman, in fee, in December, 1896. By the next step it passed from Caroline Haberman, by her will, to her son, Conrad Haberman, in fee, in September, 1897. The effect of her bequests of legacies, and the subsequent gift of tire residue of her estate to Conrad, charged her lands (passing as residue), among which were the lodging-houses, with the payment of those legacies. Corwine v. Corwine, 24 N. J. Eq. (9 C. E. Gr.) 579; Haberman v. Kaufer, 60 N. J. Eq. (15 Dick.) 271. No title to the lodging-houses is claimed by anyone by descent.

The effort of the complainant in this suit is to release the lodging-houses, title to which is now in him, from the charge of the legacies by establishing his claim that he had a contract with Michael Haberman that he, the complainant, for services to be rendered by him to Michael and Caroline, his father and mother, *385 should have the lodging-houses in fee, clear of all encumbrances. To accomplish this he asks that this alleged contract shall be established, and that a decree be made that it be specifically performed by the defendant legatees under Caroline’s will, releasing the charge of their legacies on the lodging-houses.'

íhe burden is upon the complainant to establish the fact that the contract which he sets up in his bill of complaint was actually made, and that it was obligatory, not only upon Michael and Caroline, but also upon himself.

That the services of caretaking of his father and mother and looking after their business were performed by the complainant proves no contractual relation. Those services are in the law presumed to have been rendered in recognition of family duty and affection. No implication of an undertaking on the part of the father or mother, to whom such services were rendered, to pay for them will arise. Proof of an express agreement to pay for such services must be exhibited which is sufficient to overcome the presumption that they were voluntarily rendered.

The contract to convey lands which the complainant seeks to prove is not in writing, either in whole or in part. The evidence offered presents no definite parol agreement between the parties, except as the complainant’s own testimony seeks to give that impression.. The effort is to show a contract by various unrelated parol statements made by Michael and Caroline, the sum of which it is contended prove the agreement set up by the complainant.

Of course, a contract to convey lands which is not in writing is obnoxious to the statute of frauds. The complainant endeavors to escape this difficulty by claiming that he has performed his side of the agreement, and that it would be inequitable, and in fact a fraud, if Michael and Caroline should be permitted to receive the benefits of the complainant’s performance and yet retain from him the lands they agreed to give him therefor.

The wills made by Michael and Caroline are in effect denials that they had made any such agreement as the complainant now asserts. The complainant accepted both these wills without a *386 suggestion of protest. He formally proved Caroline's will, as its executor, and by Ms oatli as executor undertook to carry it into effect. lie recognized the force of its provisions, and for nearly two years sought to borrow the money necessary to pay the very legacies which he is now trying to defeat. He presented to himself, as Caroline's executor, claims that he swore Were "justly due and owing to him” for money compensation for his alleged services, and took legal steps to force their payment in money, not setting up the presently-alleged contract to convey, and asking damages for its breach, but claiming payment in money for services rendered, with no hint that there ever had been such an agreement to convey as is now asserted.

It was only when these efforts to raise the legacies had failed, and the legatees gave signs of action to cómpel their realization by the sale of the lands, that the complainant brought forward Iris present claim that in 1894, long before the legacies had been given by Ms mother's will, his father had contracted to pay for the complainant’s care and attention by conveying or devising the lodging-houses to him.

When the complainant's own conduct throws so much doubt upon the existence of such a contract, the testimony of other persons on the subject will be examined with careful scrutiny.

The evidence of other witnesses presented by the complainant in support of in's claim is qiiite voluminous. Almost all of it relates parol declarations of the parents of the complainant, made to casual bystanders, which gratefully recognized the complainant's attentions to his father and mother during their illness, and their inability to care for themselves or their business, and their wish and purpose to reward him. Very little of it tends to show any contractual undertaking by either Michael or Caroline to convey or devise the lands in question to the complainant in consideration of the complainant’s agreement to’ serve them. One or two witnesses, who are closely associated with and dependent upon the complainant, did phrase their testimony in a way that suggests a contract. The manner of these witnesses in giving their testimony did not impress me with their truthfulness. Most of; the witnesses by whom the complainant sought *387 to prove admissions by Michael and Caro-line that they had contracted to convey the lodging-houses to the complainant testified to language which indicated that Michael and Caroline had a sense of freedom to dispose of their property in recognition of kindness rendered which was quite inconsistent with a consciousness that they were bound to convey or devise it to the •complainant by a contract which they were obliged to perform.

Hone of the supposed admissions defines the whole contract. Hone shows that the complainant contracted with Michael and Caroline to render the alleged services. They are evidently narrations of passing allusions by Michael and Caroline to the complainant's care of them, and of their desire and purpose to reward him. Such evidence does not prove a contract to convey lands with that certainty which ought to be before any court which is asked to decree the specific performance. The case presented closely resembles in principle that of Wolfinger v. McFarland, 67 N. J. Eq. 687.

On the whole of the proofs I am satisfied that the complainant in fact never had any such contract, and that his present claim is the result of his discovery that his father and mother had, to several people, spokcai appreciatively of his services to them in their old age, and of their gratitude and intention to reward him. This his mother, in all probability, believed she was doing bv her gift to him of the residue of her estate.

The complainant has failed to present evidence which sufficiently proves the contract alleged. His bill should be dismissed, with costs.

This result being reached, I have not found it to be necessary to consider the numerous points (wholly dependent on this primary one) which the complainant has discussed in his elaborate brief.

The facts necessary to sustain the cross-bill of the defendants are substantially undisputed. The principles of law which justify a decree in favor of the cross-bill prayer have already been declared in the previous judgment of Haberman v. Kaufer, 60 N. J. Eq. (15 Dick.) 271. Such a decree should be made.

A decree will be advised according to the views above expressed.