Peck v. . Vandemark , 99 N.Y. 29 ( 1885 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The eleven letters put in evidence which passed between the plaintiff and the testator, commencing on the 4th day of October, 1879, and ending on the 3d day of December thereafter, all related to the same subject, to-wit: the marriage of the parties and the terms upon which it should be consummated. The whole correspondence was to settle the pecuniary compensation which the plaintiff was to have in consideration of her marriage to the testator. He distinctly proposed to give her by will one-half of the entire property which he should leave at his death, and the use of the other half thereof for her life. She finally accepted the proposition, and relying upon the agreement thus made, married him, and subsequently lived with him. These letters furnish the written evidence of the agreement required by the statute of frauds; and it matters not that the whole agreement may not be contained in one letter. The entire proposition, however, on the part of the testator was in one letter, and her acceptance thereof in another. All the letters taken together show clearly what the agreement was, and they are all connected and related to each other, and thus all of them may be considered for the purpose of ascertaining what the agreement was. In 1 Greenleaf on Evidence (Redfield's ed., § 268), the learned author says: "It is sufficient if the contract can be plainly made out in all its terms from any writings of the party, or even from his correspondence, but it must all be collected from the writings." In Wharton on Evidence (§ 872), it is said: "It is enough in order to meet the requirements of the statute, if the substance of the contract is to be inferred from writings, either by the parties or by their agent, though the writings are made up of disjointed memoranda or protracted correspondence." In Reed on the Statute of Frauds (§ 341), it is said: "The memorandum required by the statute of frauds may be on different papers, one of which must contain a reference to the other;" and in Schouler's Domestic Relations (§ 177), it is said: "Letters or correspondence before marriage may establish an ante-nuptial settlement where they sufficiently furnish the terms of the agreement."

This contract was founded upon a sufficient consideration. The plaintiff, in order to marry the testator, was obliged to surrender the pension which she was receiving from the government, and this the testator knew. Both the surrender of the pension and the marriage itself furnished ample consideration for the promise of the testator. (Schouler's Domestic Relations, § 173; Magniac v. Thompson, 7 Peters, 348; Wright v.Wright, 54 N.Y. 437.) The ante-nuptial agreement was, therefore, good in form and founded upon a sufficient consideration and bound the testator.

As the testator did not perform his agreement, the plaintiff was entitled to recover against his executor damages for the breach thereof. Although in the correspondence between them he represented that his property was worth $10,000, that value did not enter into the contract. All he agreed to give her was one-half of all the property he should leave at his death and the use of the other half for her life. He did not agree to appoint her executrix of his will, and as she could receive her interest in the personal property in case he had kept his promise only through regular administration of his estate, the value of his promise is to be measured by taking as a basis the amount of the estate after the payment of debts and the expenses of administration, as the balance thus ascertained would be his entire property left at his death. It is not impossible to ascertain with sufficient accuracy the amount which the plaintiff is entitled to recover. The debts of the testator can be easily ascertained, and were ascertained substantially at the trial; and the expenses of administration could then also have been with sufficient accuracy determined. But if the exact amount of the testator's property could not at the time of the trial have been ascertained, the rights of the plaintiff could have been settled and determined by an interlocutory judgment and a reference ordered to take the accounting of the executor. The hearing upon such a reference could, if necessary, have been postponed until a final settlement of the executor's accounts before the surrogate. The form of this action furnishes no obstacle to such a method of disposing of the case. The facts are stated in the complaint and answer; they were proved upon the trial, and the court then and there had all the powers in law and equity needed to administer justice between the parties. If in consequence of our decision it becomes necessary to assess the plaintiff's damages, such assessment may be postponed to give the executor sufficient time, if he needs it, to settle his accounts before the surrogate.

So, in any aspect of the case, it cannot be said that this action was prematurely commenced, or that there is any impossibility or even any great difficulty to ascertain the amount the plaintiff is entitled to recover, which, as before stated, is one-half of the estate absolutely after paying debts and expenses of administration, and the use of the other half during her life. The interest in the latter half may be computed by the annuity tables provided for such cases.

We are, therefore, of opinion that the decision of the General Term was right, and that its order should be affirmed and and judgment absolute ordered against the defendant, with costs.

All concur.

Order affirmed and judgment accordingly.