Keeley v. Riley , 116 W. Va. 677 ( 1935 )

If the claim of James Keeley and Katherine Keeley against the estate of James L. Hawley were a claim seeking compensation in money for services rendered the testator in his lifetime, based upon either express or implied contract, I would, in accordance with the views expressed by me in the additional memorandum filed in the case of Garden et al. v. T. S. Riley etal., Executors, 116 W. Va. 723, 183 S.E. 46, be of the opinion that the commissioner of accounts had jurisdiction of the claim. That, however, is not the nature of their claim. They say that on or about the ___ day of April, 1928, they being then in the employ of James L. Hawley and receiving compensation that was to continue, James L. Hawley promised them that he would "put a provision in his will" bequeathing them $25,000.00 if they would continue in his employ and take care of him as long as he lived. They say they fully performed the contract on their part and that the testator died, leaving a will that contained no provision for them.

Certainly, if James L. Hawley had fully performed the contract on his part and had made in his will the provision contended for, that fact would not have made the claim under the provision of the will a debt against the estate nor would it have put the Keeleys in the class of creditors of the estate. They would have been legatees, and the payment of their claim would have had to await the payment of the debts of the estate. Both the claim filed and the proof taken show that the contract Mr. Hawley made with them in his lifetime contemplated that he was to make them legatees in his will to the extent of a $25,000.00 bequest. The fact that in this instance the classification becomes immaterial owing to the undoubted sufficiency of the estate to pay all of the testator's debts and to meet all of the provisions of his will, the controverted bequest included, of course, makes no difference.

Here was a contract, based upon a consideration sufficient to sustain it, not for the payment of money, but to make the claimants a bequest of money. There would have been a literal compliance on the part of James L. Hawley if he had included the provision in his will, even though thereafter he had died with barely enough property to pay his debts, and these claimants had realized nothing. Still, James L. Hawley would have been doing exactly as he contracted to do, and so long as he did it in good faith, the fact that the claimants realized nothing from the legacy would be of no legal consequence.

In so far as the nature of the claim is concerned, I do not believe that the foregoing comment can be questioned. What then is the proper remedy? A suit may be brought in assumpsitfor the breach of a contract to make a will. Jefferson v.Simpson, 83 W. Va. 274, 98 S.E. 212. This, of course, is for a recovery sounding in damages, and, under the case last cited, the soundness of which in this respect may be open to question on the basis of the majority opinion, the measure of damages is the sum stipulated in the contract. A judgment in such an action would serve only to "liquidate" the claim and would give claimant no preference to which his contract did not entitle him. See discussion and citations in Drainer v. Travis, 116 W. Va. 390,180 S.E. 435. Another remedy for failure to perform a contract to make a will, in instances such as that before us in this case, would be a proceeding in equity, perhaps not technically for specific performance, but for relief tantamount to specific performance. Burdine v. Burdine, 98 Va. 515,36 S.E. 992, 81 A.S.R. 741. The two remedies that I have mentioned are the only ones that I know of which afford relief under our law in a situation of this sort. It seems perfectly clear to my mind that a commissioner of accounts is not, under Chapter 44, Code, clothed with authority to entertain either actions sounding in damages or matters calling for equitable relief. I am of the opinion, therefore, that this claim should not have been entertained by the commissioner of accounts because of lack of jurisdiction to pass upon it.

For the purpose of having a fund set apart out of the estate to meet the claim, if and when it should be properly adjudicated, the claimants could have gone before the commissioner under Code, 44-2-8, and upon sufficient showing to demonstrate the bona fides of the claim, protected their interests.

Owing to the fact that the conclusion I have reached is dependent upon several different provisions of Chapter 44, Code, it is extremely difficult to find cases in point. However, the case of Oles v. Wilson, 57 Colo. 246,141 P. 489, contains a full discussion of the principles involved under Colorado statutes which are apparently very similar to our own. More or less relevant holdings are to be found also in Oles v. Macky'sEstate, 58 Colo. 295, 144 P. 891; In re Williams' Estate,106 Mich. 490, 64 N.W. 490, and In re Elvira E. Markley's Estate, 10 Pa. Co. Ct. Rep. 551.

For the reasons stated, I am of the opinion that the commissioner of accounts had no jurisdiction to entertain the claim in question here, and to that extent, I respectfully disagree with the majority opinion. I have heretofore filed a memorandum in Garden et al. v. Riley et al. Executors, (decided December 10, 1935), having to do with another claim against this same estate in the same proceeding before the commissioner of accounts. In that memorandum, I referred more in detail to the statutes concerning claims of which commissioners of accounts have jurisdiction.