Healy v. Healy, 66 N.Y.S. 927 (App. Div. 1900)

ADAMS, P. J.

We think the facts of this case not only warrant the conclusion reached by the learned trial justice, but that they are such as to fully justify a court of equity, within the rigid rules applicable to cases of this character, in decreeing the relief sought through the medium of this action. The evidence upon the part of the plaintiff satisfactorily establishes the fact that, at the time Mrs. Chichester surrendered the plaintiff into the control and custody of Joshua Healy, it was upon the express understanding and promise that her child should be supported, educated, and maintained during the lifetime of her adopted father, and that at his death she should receive the same share of his estate to which she would have been entitled had she been his own offspring. The mother testified unequivocally that such was the agreement, and the other evidence in the case tends to strengthen rather than discredit her testimony. Certain it is that the terms of the contract, as testified to by Mrs. Chichester, were faithfully and literally fulfilled by Mr. Healy up to the time of his decease, save only that he omitted to perform that part of it which required that he should make suitable provision for his adopted daughter in the event of his death. The contract was a paroi one, it is true; but it was fully performed upon the part of the plaintiff when she was transferred into the family of Mr. Healy, and assumed towards him and his wife the relation of daughter. It was likewise fully performed by Mr. Healy, save in the one particular just adverted to, and under these circumstances it becomes obligatory upon a court of equity to intervene in order to prevent a wrong so gross as to be tantamount to a fraud upon the plaintiff; for it cannot be doubted, if Mrs. Chichester (now Mrs. Seager) is to be believed (and there is nothing in the case which directly impeaches her evidence), that the one controlling motive which induced her to part with her child was the assurance by Mr. Healy that he would not only furnish that child a comfortable home during his lifetime, but that ample provision should also be made for her future comfort and support in the event of

his death. The case, so tar as this particular feature of it is concerned, appears to fall directly within the section of the Revised Statutes which provides that “nothing in this title contained [stat- ■ ute of frauds] shall be construed to abridge the powers of courts of equity to compel the specific performance of agreements, in case of part performance of such agreements” (2 Rev. St. [Bank & Bros. 9th Ed.] p. 1885, § 10), and likewise within certain principles of equity jurisprudence which are too well settled to admit of controversy at this late day (Kenyon v. Youlen, 53 Hun, 591, 6 N. Y. Supp. 784; Roberge v. Winne, 144 N. Y. 709, 39 N. E. 631). It is doubtless the rule that, before enforcement of such a contract will be decreed by a court of equity, it'must be made to appear affirmatively and by the clearest evidence that it was founded upon an adequate consideration, that it is certain and definite in all its parts, and that it is in no wise unjust to innocent third parties or contrary to public policy. Gall v. Gall, 64 Hun, 600, 19 N. Y. Supp. 332, affirmed in 138 N. Y. 675, 34 N. E. 515. Each of these essential elements, however, seems to be present in the case before us. When Mrs. Chichester, compelled by the inexorable requirements of her impoverished condition to part with her child, surrendered all control over that child, she furnished the largest possible measure of consideration for the promise which that surrender induced,—a consideration the adequacy of which assuredly cannot be questioned, when it is fully understood what that surrender involved. .Nor do we'think that the contract can be successfully assailed for uncertainty or indefiniteness. The agreement on the part of Mr. Healy, as found by the trial court, was to care for and maintain the plaintiff as his own child, to give her his name, to teach her to know him and his wife as her parents, and finally to provide for her future maintenance by giving to her the share of an own child in his estate. This language is surely susceptible of but one construction, and that is that the plaintiff was to share in her adopted father’s estate in the same manner and to the same extent as though she had been his child; and, in the absence of any testamentary provision to that effect, we see no difficulty in decreeing specific performance upon the basis adopted by- the trial court. Such an enforcement of the contract violates no principle of public policy, nor does it work injustice to any one. The widow’s dower interest, which is all she is entitled to in any aspect of the case, is in no wise diminished; and, while the infant defendant receives only half as much as she otherwise would, she nevertheless receives precisely what she would be entitled to under the law of descents if the plaintiff were her sister in blood, instead of by adoption. This case, although somewhat peculiar in its circumstances, is not without precedent; and there is ample authority to support the view of it taken by the court below, and the one which, as already indicated, commends itself to our approval. Godine v. Kidd, 64 Hun, 585, 19 N. Y. Supp. 335; Gates v. Gates, 34 App. Div. 608, 54 N. Y. Supp. 454; Shakespeare v. Markham, 10 Hun, 311. See, also, Gall v. Gall, supra.

But it is insisted that the error was committed by the learned trial court in permitting the plaintiff’s mother to testify, over the

defendants’ objection, to interviews between her and Mr. Healy in the course of which it is claimed that the contract sought to be enforced was entered into; the contention being that, under section 829 of the Code of Civil Procedure, this witness was incompetent to testify to a conversation which took place between herself and the defendants’ intestate. We find ourselves unable to assent to this proposition. Mrs. Chichester was in no disqualifying sense “in- . terested in the event” of the action. Eisenlord v. Clum, 126 N. Y. 552, 27 N. E. 1024; Connelly v. O’Connor, 117 N. Y. 91, 22 N. E. 753. And, while she was undoubtedly the medium through whom the contract was entered into on behalf of her infant child, yet it cannot be said that she is the person “through or under whom” the plaintiff derives her interest or title “by assignment or otherwise,” as that term is used in the section above mentioned. The subject-matter of the action is the estate of Joshua Healy, deceased; and whatever interest the plaintiff has in that estate she derived from Joshua Healy* and not from her mother. G-odine v. Kidd, supra. Our conclusion, upon the whole case, is that it was properly disposed of by the trial court, add that the judgment appealed from should consequently be affirmed.

Judgment affirmed, with costs payable out of the estate. All concur.