Smith v. Tuit , 127 Pa. 341 ( 1889 )

Opinion,

Mr. Justice Green:

By the terms of the paper called the last will and testament of Sarah Smith she devises all her estate, real and personal, to Laura E. Smith, and expressly states that she does so for the kindness and care toward her in sickness and in health, “ and care during all my natural life.” She adds that it is her desire that Smith shall have possession of the house on November 1, 1884, and take her with him and take care of her as one of his own family. Without anything more and without possession of the property on the part of Smith and performance by him of the acts mentioned in the will to be done by him, the paper in question could not be regarded as anything more than a will revocable at the mere pleasure of the testator. But the offer of parol proof introduces other facts into the case, and as these were rejected by the court below they must be regarded as true for the purposes of this case. These facts were that the defendant, the devisee named in the will, took possession of the house and land in dispute under the will, and in pursuance of it, and that he was still there at the time of the trial; that the testatrix Sarah Smith moved into the premises with the devisee, in pursuance of the intention stated in the will, and there remained for a long time; and that the defendant at all times performed his part of the agreement indicated in the paper.

The offer should have been somewhat more specific and stated the acts which the defendant did in performance of his part of the agreement, but as it does allege an actual performance, it should be regarded as made in good faith, and therefore as fairly raising the question for consideration. Viewed in that light, the question is, what effect is produced upon the testamentary paper if the facts offered to be proved are true. It has long been held that such a case is not affected by the statute of frauds, because the terms of the agreement are put in writing, to wit, the will, and this is a sufficient compliance with the requirements of the statute: Brinker v. Brinker, 7 Pa. 53.

Tlie circumstance that it is not to take effect finally, until after the testator’s death, will not prevent a specific performance during the life of the testator, if he has put the other party to the agreement in possession of the land. This was held in McCue v. Johnston, 25 Pa. 306, where the decree was refused only because there was no provision for possession during the life of the devisor in either the will or written contract, and no sufficient proof of a verbal contract for such possession. But in Johnson v. McCue, 34 Pa. 180, the same will and agreement were enforced in favor of the first devisee against devisees by a subsequent will, on the ground that the first will and agreement must be treated as an executed contract which the devisor was not at liberty to disregard. It is true, in that case the stipulation of the devisee was expressed in a written paper, but the decision of the question as to how the will was to be regarded, was not put upon that ground; and in Brinker v. Brinker the devisee’s part of the contract was in parol, but he was nevertheless held entitled to treat the will as a contract and not as a will, and to have specific performance. It is true this was before our statute of frauds was passed, but the will was held to be a sufficient writing to take the case out of the statute in any event. In McCue v. Johnston, supra, the court said, “ In point of fact so far as the instrument by which the conveyance is to take place, is involved, it is an executed contract on condition to take effect at the time specified. A devise transfers the legal estate and not an equity to bo perfected by another instrument. It is the same as if a deed had been executed to take effect in futuro, only that the common law incident of a feoffment forbids the freehold remaining in abeyance, and a resort must therefore be had to a devise or a conveyance under the statute of uses.”

It is clear, therefore, upon all the authorities, that the testamentary character of the testator’s agreement is not a bar to relief, as upon an executed contract. The difficulty in regard to possession by the devisee during the lifetime of the devisor is removed, in the present case, by the fact that the will itself provides for a present possession to begin the day after the will was executed. Now, the offer of proof was, that such possession was actually taken by the devisee, and that he literally complied with the terms of the will by taking the devisor in with him and keeping her there a long time, and that he performed all of his part of the contract and is still in possession. The only practical question then is, can he be deprived of his possession because the contract is contained in a testamentary paper? Certainly not, if for no other reason, because depriving him of his possession would disable him from the further performance of his contract, for which purpose his possession is indispensable according to the terms of the will itself.

We think, therefore, the learned court below was in error in rejecting the offer of proof by the defendant.

Judgment reversed, and new venire awarded.