On appeal to the Appellate Division. Certified to the Supreme Court on its own motion.
For reversal and remandment -- Chief Justice Vanderbilt, Justices Case, Heher, Oliphant, Wachenfeld and Burling. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment in favor of the plaintiff, entered in the Chancery Division, in an action for specific performance and impressing a trust on the funds and property of the decedent's estate in the possession of the defendant Victoria Sabol as executrix of the last will and testament of the decedent. The judgment further ordered "that defendant turn over to the executor named in the codicil of May 9, 1946, the assets of the estate of Jennie Matlack to be administered according to the terms of the said will of Jennie P. Matlack dated January 29, 1946."
The complaint alleged an oral agreement made by Jennie P. Matlack to the effect that she would make a will in favor of the plaintiff, and the complaint alleges that the agreement was that if the plaintiff would furnish her (Mrs. Matlack) board, room and nursing care with special services and accommodations as her condition required she would pay the
plaintiff the sum of $12 to $15 a week to cover actual out-of-pocket cost of special food and other incidentals furnished, and would also make and execute her last will and testament wherein she would provide for certain specific bequests approximating between $1,000 and $2,000 to three persons and then devise and bequeath the entire residue of her property in trust for her husband for his life and the remainder thereof to plaintiff, provided that at the time of her death her home was with the plaintiff. Specific performance was prayed for and that a trust be impressed upon the assets of the estate in the hands of the defendant executrix. The complaint was amended and a second count added seeking damages on a quantum meruit for services rendered from June 1, 1945, to March 30, 1947, including nursing care, laundry, board, room, etc.
The decedent was in advanced years and was quite ill from diabetes. She was partially blind and generally in a debilitated condition at the time she came to live with the plaintiff, who managed a combination rooming house and nursing home, she being a registered nurse.
On January 29, 1946, the decedent had a will drawn along the lines alleged in the complaint, making certain bequests and leaving the rest in trust for her husband and on his death the residue and remainder to the plaintiff "provided my home is with her at the time of my decease." In the latter part of 1946 the decedent's husband died in Philadelphia and the decedent left plaintiff's home and went there apparently to close his estate. While there she took sick in the early part of 1947, was confined to a hospital there and died on March 31, 1947. While she was in Philadelphia she had drawn and executed a will, which was dated October 18, 1946, and a codicil, dated February 8, 1947, at which time she told the lawyer her home was in Philadelphia and not Ocean City.
She was admitted to St. Mary's Hospital in Philadelphia on February 24, 1947. Her condition became gradually worse and she then had a lawyer draw a new Will, dated March 21, 1947, making an entirely different disposition of the property
than was made in either of the prior two wills. She died ten days later and this will was finally admitted to probate in the Orphans' Court of Cape May County, after contest of its probate. The decree of probate was dated December 16, 1947, no appeal was taken therefrom and the defendant here proceeded to administer the estate according to its terms.
The trial court found that the plaintiff had sustained the allegations of the complaint and had established an agreement to devise the major part of her estate to the plaintiff for the considerations set forth in the complaint. We are not in accord with that conclusion. The real issue in this matter is whether the facts as developed bring the plaintiff within the admittedly applicable legal principles involved. The obligation of plaintiff was to prove by clear, cogent and convincing evidence an oral agreement on the part of the decedent, supported by a valuable consideration, and to prove that the agreement was mutual, definite and certain as to its terms and subject matter. In addition the plaintiff had to show by acts exclusively referable to the oral agreement such part-performance as will exclude the operation of the Statute of Frauds. It is only when these requirements are met that the plaintiff is entitled to specific performance of an oral agreement to bequeath and devise an state. Epstein v. Fleck, 141 N.J. Eq. 486 (E. & A. 1948); White v. Risdon, 140 N.J. Eq. 613, 614 and 615 (Ch. 1947); Poloha v. Rumane, 137 N.J. Eq. 167; affirmed, 140 N.J. Eq. 396 (E. & A. 1947); Hufnagel v. Scholp, 138 N.J. Eq. 16 (Ch. 1946); Laune v. Chandless, 69 N.J. Eq. 186 (Ch. 1926).
The testimony of the two principal witnesses, in our view, failed to establish the agreement with the certitude that is necessary. The assistant cashier of an Ocean City bank testified that in discussing the 1946 will, the decedent said "she was going to take care of her (Mrs. Young) and that this was to take the place of what ordinarily would be paid as room and board, that she wanted Elma to have the balance of her ...