On appeal from the former Court of Chancery.
For affirmance: Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld, Burling and Ackerson. For reversal: None. The opinion of the court was delivered by Case, J. Vanderbilt, C.J. I am authorized by Mr. Justice Wachenfeld to state that he joins in this opinion.
The complainant seeks to enforce an alleged oral contract made with her father, the defendants' testator, that "she would receive from her father, after his death everything that he owned" in consideration of her agreement to give up her home in Nyack, N.Y., live with him and his wife and take care of them for the rest of their lives.
Following the complainant's divorce from her first husband in 1928, her father and mother sold their house and came to live with her in Nyack. In 1931 the father inherited property in Hackensack in which all three moved, the daughter selling her home in Nyack. The mother was in poor health and the complainant kept house and looked after her until her death in 1936. The complainant continued to keep house for her father until September, 1941, when she went out West without telling her father where she was going and remarried. The first the father knew of it was by a telegram. The complainant and her new husband lived with the father until September, 1942, when the husband's place of employment was transferred to Cincinnati. The father remained alone in Hackensack until he died in September, 1943. By his will executed in December, 1941, after the daughter's remarriage and while she and her husband were still living with him, he expressly disinherited her "as I have advanced substantial sums of money to her during my lifetime which I consider an ample remembrance from me for reason best known to her".
The evidence concerning the alleged oral agreement of the testator to will the property to the complainant is slight. An old friend of the testator testified that the complainant's parents wanted her to sell her house and go to Hackensack with them since there was no point in her continuing to work and stay in Nyack alone, inasmuch as they had sufficient money for
all three to live on, and that the complainant could "take care of them in Hackensack and look after the home until they die". The furthest his proof went was:
"Q. Did they say anything about property? A. After we are gone, you know you are the only one we got, everything going to belong to us (you)."
A second witness for the complainant, another friend of the father, testified that the testator had said:
"Yes, this property will be very valuable some day, Margaret will be well off, it is all hers after I die."
Only the complainant's husband testified that the testator had spoken in terms of an agreement:
"Q. Did he say anything else as to the relationship between him and his daughter? A. He mentioned the fact when he was gone everything was going to go to Margaret; there was some oral agreement he had with her.
Q. What was the agreement? A. All the property would go to Margaret.
Q. In return for what? A. Being his daughter and only heir and also because of services she was rendering."
The evidence of the two friends amounts merely to an expression of an intention of the testator to leave his property to his daughter as the natural object of his bounty; it does not sound in contract. Even part of the husband's testimony ("when he was gone everything was going to go to Margaret * * * being his daughter and only heir") goes no further. What remains ("some oral agreement he had with her * * * because of services she was rendering") falls far short of establishing by clear and convincing proof a contract to devise in terms definite and certain, which equity requires, among other prerequisites, before it will decree its enforcement. Cooper v. Colson, 66 N.J. Eq. 328 (E. & A. 1904).
Even if the contract had been proved by the strict test of equity, the complainant could still not prevail, for she failed, even on her own theory, to take care of her father for the rest of his life. True, she did the housework in the home in Hackensack and nursed her mother in her last illness, but she left her father in 1941 to go out West to get married and she left
him again in September, 1942, to go with her husband to his new place of employment in Cincinnati, doing nothing to look after her father during the last year of his life. The character of her services up to the time she left has also been called into question, the complainant's witnesses testifying to the father's expressions of satisfaction, while the defendants' witnesses recalled his complaints. It is undisputed that in connection with the complainant's moving to Cincinnati an altercation occurred between father and daughter over the property the daughter was proposing to take with her, which became so heated that the Hackensack police were summoned. The complainant manifestly did not herself perform the contract on which she is seeking to recover.
Appellant further argues that it was error to admit in evidence over her objection a paper writing done by the pen of, and signed by, the decedent on September 12, 1942. The proper study of that instrument requires that it should be stated in full. It follows:
"Hackensack, New Jersey -- Sept.12/1942
I regret very much to make a statement of this kind, but I consider it very essential, as it will undoubtedly clear up a condition which may possibly follow after my death or possibly before my demise.
About the fall or early winter of 1928 or 1929 I sold my property on Depot Place, South Nyack, N.Y. Wife and I then went to live with my daughter Margaret W. Wills on Piermont Ave., Nyack, N.Y., her home.
I lived in her house until about March 1931, she having divorced her husband.
During this period, I paid all expenses such as food, the interest on her mortgage, insurance, taxes. She paid no board, nor the cost of woman to help my wife on Friday of each week. I paid for coal to heat the house, put in three windows in kitchen, new sink and changed the wiring in the house, painted kitchen.
In 1931, March or April, I moved to Hackensack, N.J. to live at 469 Main Street, my father and stepmother having passed away.
She was working at the time (that is my daughter), gave up her position and lived with my wife and I at 469 Main Street.
She had no expenses whatever, and we made it very pleasant for her.
I bought her a car costing $1,006.00, Chrysler Coup, Rumble. Two consecutive years I paid for two trips to California to visit a friend. The two trips and stay in California costing about $1,000.00. I paid a dentist bill for $75.00 contracted while living at Nyack, New York.
I paid the insurance, repair, license plates on her car for four or five years, Habrich Co. Two weeks to Asbury Park, ...