HERRMANN, Judge:
The partition of real estate of William K. Smith, deceased, is sought by his children and heirs at law, Lawrence L. Smith, Charles W. Smith, Earl J. Smith and James F. Smith. Summons was served upon William A. Frith, the husband of Helen M. Frith, deceased daughter of William K. Smith, and upon their children, William A. Frith, Jr. and Rita M. Nichols, requiring that they appear and show cause, if any they had, why partition should not be made. The respondents appeared and they oppose the partition. They have filed an answer which, when fairly construed, alleges that William K. Smith had promised, by oral agreement, that upon his death he would leave the subject real estate to William A. Frith if Frith would live with and take care of him during his last years. It is further alleged that Frith has performed under this contract and that he is now in possession of the premises. The petitioners move to strike the answer on the grounds that (1) the alleged oral agreement is ineffective because of the Statute of Frauds, (2) the agreement as alleged is too vague and ambiguous to be effective, (3) the answer was filed too late, and (4) the respondents are barred by laches.
If the respondents can prove the contract of William K. Smith and performance thereunder by Frith, as alleged, they have a good defense to this partition action. Where a promisee is in possession of real estate which the promisor by oral agreement had promised to leave to him upon the promisor's death, the establishment of such contract and performance thereunder by the promisee constitutes a good defense to an action for partition brought by heirs at law of the promisor; and such agreement is not within the ban of the Statute of Frauds if there has been performance by the promisee as is here alleged. Dougherty v. Dougherty 98 N.J. Eq. 126 , 130 A. 833; Bucher v. Eaton, 151 App. Div. 342, 135 N.Y.S. 838; Mauck v. Melton, 64 Ind. 414; Bergfield v. Bergfield, 124 Neb. 67, 245 N.W. 12.
It is true that certain allegations of the answer are vague and lack the simplicity and clearness required for good pleading. Nevertheless, I consider the answer to be sufficient to put the petitioners on notice as to the nature of the defense which confronts them.
The answer was filed upon leave of court requested and granted when the order for partition sale was presented by the petitioners. The answer was timely. Laches is not a proper subject for discussion in connection with the question of the timeliness of the assertion of the respondent's rights in defense to the partition action. The defense of laches may be available to the petitioners if and when the respondents make a proper application for affirmative relief.
Accordingly, the motion to strike the answer will be denied. APPENDIX CHARLES MINOT CURTIS Delaware's Tenth Chacellor By his acts each man paints his own portrait. In that portrait, mirrored in the frame of time in which he lived, his character, his stature, stand realistically delineated. The measure of his achievement of the purposes to which he directed his endeavors there comes sharply into view. The Honorable Charles Minot Curtis was of sturdy New England ancestry. A short time before the middle of the last century two brothers, S. Minot Curtis and George B. Curtis of Newton Lower Falls, near Boston, Massachusetts, came to Newark, Delaware. There they purchased a paper mill. A third brother, Frederick Augustus Curtis, came soon thereafter. He purchased the interest of his brother George B. Curtis. The mill was long successfully operated by the original Curtises and their descendants under the name Curtis Brother. Frederick Augustus Curtis was married three times. By his first wife he had no children. He had two children, Alfred Augustus Curtis and Annie Curtis (Mrs. William Cooch), by his second wife. By his third wife, Harriet Lorinda (Hurd) Curtis, he had six children, Harriet (Mrs. Delaware Clark), Frederick William, Charles Minot, Theodore, Louis Lincoln and Harlow Hurd, some of whom, following in the footsteps of their ancestors, continued the manufacture of paper. Charles Minot Curtis was born August 19, 1859 as the events leading to the roar of the guns at Fort Sumter and the Civil War became daily more critical. He died April 15, 1945 while another war continued to rage throughout the world. In the prime of his life, war with Spain and the First World War inflamed the Nation and the world. Though not a pacifist, he had a more abiding faith in the efficacy of man's regard for man and in the proper administration of justice between man and man than in the conflicts of nations. Having attended Newark Academy, he entered Delaware College at the age of fourteen, there receiving the degree of A.B. in 1877 before he had reached the age of eighteen. The year following his graduation he spent at Cambridge, Massachusetts, in the office of his uncle, Theodore C. Hurd, who was then the Clerk of the Courts of Middlesex County, Massachusetts. The profession of the law appealed to him. In the fall of 1878 he became a student in the law school of Harvard University, and there received in 1881 the degree of LL.B. Before receiving that degree he had registered, in 1880, as a law student under The Honorable Anthony Higgins (United States Senator, 1889-1895). The Committee of the Bar that certified his qualifications were William C. Spruance, George H. Bates, Benjamin Nields and Edward G. Bradford, Jr., all of whom were men who have left their imprint large upon the annals of this State. He was admitted to the Delaware Bar in 1883, at the end of the required three year period after registering here as a law student. In 1891 he was elected Wilmington's City Solicitor, being the first person to hold that office by the vote of the people. Theretofore, the City Solicitor had been chosen by the City Council. His opponent in the contest for that office was William T. Lynam, Esquire, a former college classmate, an able lawyer and a resolute adversary. During his term of office he made a deep impression on state officers and members of the bar alike by preparing and publishing, in collaboration with Phillip Q. Churchman and Samuel W. MacAllister, Esquires, a revision of the charter, laws and ordinances of Wilmington. In his early practice of the law he was associated with William C. Spruance, Esquire (Associate Judge of the Supreme Court, 1897-1909). Later, upon the appointment of Mr. Spruance as Associate Judge of the Supreme Court of Delaware and the approximately simultaneous appointment of Edward G. Bradford, Jr., Esquire, a partner of Lewis C. Vandegrift, Esquire, as United States District Judge for the District of Delaware, Mr. Curtis became associated in the practice of the law with Mr. Vandegrift. Soon after the death of Mr. Vandegrift in 1900 Mr. Curtis joined with The Honorable Willard Saulsbury, Jr., (United States Senator, 1913-1919) and James W. Ponder, Esquire, in forming the law firm of Saulsbury, Ponder Curtis. Of that firm he remained a member until June 14, 1909, the day before which he became, by appointment of Governor Simeon S. Pennewill, Chancellor of Delaware for the term of twelve years. He was Delaware's tenth Chancellor. As Chancellor he was also the presiding Judge of the Supreme Court of Delaware, and of the Orphans' Court. The annals of Delaware are bright with names that men remember. In the constellations of those whose lights will long pierce the mists of ever-accumulating years, the names are few that glow with as rich a lustre as that of Charles Minot Curtis. Few have striven as long, as earnestly, or as sincerely to give of himself, his time, his thoughts, his labor to the well being of his fellow man. For causes he deemed worthy he worked diligently and persistently — not with ostentation or for personal glory, but for the satisfaction of doing that which he believed should be done — of doing that which he believed he should do. His aims that ended with himself were few and comparatively minor. Those that were for the benefit of others evoked his deepest interest. Chancellor Curtis was a truly devout man. He was a member of Trinity Protestant Episcopal Church of Wilmington, Junior Warden of Trinity Parish 1889-1915, Trustee of the Protestant Episcopal Diocese of Delaware for forty-one years, and Chancellor of that Diocese from 1914 to 1941. He was frequently chosen to represent his Diocese in the General Convention. As Junior Warden one of his special interests was Old Swedes Church and its Churchyard. He was a member of the Committee that renovated that church for its Two Hundredth Anniversary, 1898-1899. He was the author of a paper that analyzed and proved worthless the claims, then constantly recurring, of the widespread Springer heirs (so-called) against lands in a large area of Wilmington formerly possessed by that church. About 1938 he wrote the history of the church. Chancellor Curtis and Mr. John S. Grohe organized the Old Swede's Churchyard records, created a new plot plan for the churchyard and indexed all available burial records with dates and markers. In 1911 the Governor of Delaware appointed him a life member of the Board of Trustees of Delaware College, now the University of Delaware. His efforts as such trustee to improve and expand the benefits of that institution for the advantage of the youth of Delaware were long-lasting and untiring. He was deeply interested in the establishment and operation of the Women's College. For many years he was Chairman of the Women's College Committee of the Board of Trustees of the University of Delaware. In 1932 the honorary degree of LL.D. was conferred upon him by that University. He resigned as trustee in 1939 at the age of eighty years. Law, religion, advanced education still left room for contributions of self to youth of tender age. A charter member of Wilmington Council of the Boy Scouts of America he served as a member of its Executive Board from 1916 to 1941, and several years as its President. For a number of years he was Chairman of its Court of Honor and impressed the Scouts of his day with the true ideals for which men must ever strive. For far more than one-half of the adult years of his life he was Secretary of St. Michaels Day Nursery and Hospital for Babies. The Prisoner's Aid Society called him to its presidency. The statute creating the Juvenile Court for the City of Wilmington and New Castle County provided that the appointment of the Judge of that Court should be made by the Governor of Delaware without any regard for his political affiliations and that his sole qualification should be "his fitness to be a Juvenile Judge." In 1926 the former Chancellor Curtis who had presided over the Highest Court of this State, as well as the Court of Chancery and the Orphans' Court, was appointed Judge of the Juvenile Court. He served for two terms of six years. He accepted because he sincerely believed that it was his duty to give of himself to whatever cause that could be made to serve and aid any part, or section of humanity. Indeed, he expressed the thought that, perhaps, a wise and learned Justice of the Peace has as great an opportunity to be of real service to mankind as any other Judge. At the time he accepted the Juvenile Court Judgeship he was a Director, Vice President and the Trust Officer of Delaware Trust Company. He served as such Trust Officer from January 1922 to 1929 and as Vice President and Director from January 1922 to September 1941. At all times, at all places and under all circumstances an innate gentleman, he presided over the several courts of which he was the ranking, or sole Judge, with dignity and ease. His questions to counsel were few. The shafts of those he asked were feathered with courtesy and kindness, but pointed with sagacity. His basic ideas of right, long stored in his mind, made him keenly sensitive and responsive to the relative values of the equitable principles in their application to the varying factual ingredients of the different causes before him. His opinions as Chancellor are reported in Volumes IX to XII, both inclusive, of the Delaware Chancery Reports. Those reports disclose that during the twelve years of his incumbency as Chancellor the appeals from his decrees were only twenty-one — fewer than two a year. Only five of his decrees were flatly reversed. Eleven were completely affirmed. Three others were affirmed with modifications only as to costs. Another was affirmed with some modifications and still another was affirmed in part and reversed in part. From time to time after his appointment as Chancellor he promulgated amendments to the Rules of the Court of Chancery. In 1917 he prepared and promulgated a complete revision of the rules of that Court and of the Orphans' Court. The previous complete revision of the Chancery Rules was in 1868. For some years after he became Chancellor, the cases brought before him were mainly between citizens of Delaware. In the spacious times before World War I the issues in those cases pertained largely to such matters as liens, decedents' estates, easements, wills and other similar subjects long cognizable in Courts of Equity. The appearance in a case of counsel from another State was then a rare occurrence. Although the General Corporation Law of the State of Delaware had been enacted in 1899, it was modeled on the earlier New Jersey law and industry continued for years to prefer to incorporate in the State of New Jersey. But, amendments to the New Jersey law gradually turned the tide of corporate charters to Delaware. A few corporation cases and questions came before Chancellor Curtis during his term of office. In his decisions he not only gave strength to the sinews of the Delaware Corporation Law but he did so in keeping with the appropriate and applicable principles of equity. Under his decisions in Du Pont v. Standard Arms Co., Harned v. Beacon Hill Real Estate Co., Walter v. Peninsula Cut Stone Co., Martin, et al., v. D.B. Martin Co., et al., In re International Radiator Co., Butler v. New Keystone Copper Co., et al., U.S. Fire Apparatus Co. v. G.W. Baker Mac. Co., Lippman v. Kehoe Stenograph Co., and other cases decided by him, Delaware Corporation Law became accepted and a favorite law under which to incorporate. The vibrant and convincing character of the opinions of Chancellor Curtis as presiding Judge of the Supreme Court is well typified by Godwin v. State, Roe and Wright v. Town of Seaford, Strout Co. v. Howell, Elbert and Elbert v. Scott. In the performance of his duties, he decided the cases before him in accordance with the right as he saw the right under the law and the facts. Of all else he was utterly oblivious. No shadow of friendship, favor, animus, or effect upon himself ever neared him while arriving at his conclusions, or caused his hand to quaver while formulating his opinions, orders, and decrees. As the expiration of his term drew near, the Bar of the State urged his reappointment. Petitions were presented to the Governor in his behalf. The petition of more than seventy members of the New Castle County Bar expressed, in these words, the high regard in which he and his judicial talents were held: — "Chancellor Curtis has held his present office for twelve years, during which time he has built up a reputation for legal ability, fairness, justice, industry and judicial courage not surpassed by that of any previous Chancellor. He is now, by reason of his experience, better qualified to hold the office and to discharge its duties than any other possible appointee. His unblemished character, his legal attainments and his stainless record in the office entitle him to reappointment, and in him the State will have a judicial servant excelled by none in its history." Many members of the Kent County Bar also presented a petition for the Chancellor's reappointment. Physicians of Wilmington and many of the leading business men likewise urged upon the Governor the Chancellor's reappointment. But, in one of the cases decided by him sometime before the end of the term of his office his decree was displeasing to leaders of his own political party and they were successful in preventing his reappointment notwithstanding the fundamental provisions of the decree in that case were affirmed by the Supreme Court of Delaware. He seemed wholly undisturbed by the winds of chance, or the undulations in the tide of his life. He was ever ready to follow with equal fervor the cause of right and service, either on the high roads, or on paths less renowned. With life's work well done, and life's crown well won, he decided in 1941, at the age of 82, to resign as Vice President of the Delaware Trust Company and to terminate his relations with other Delaware organizations in order to spend his remaining years with his son Frederick A. Curtis and his daughter-in-law at Granby, Massachusetts, and be near his other son Stephen, a resident of Boston. His wife, the former Phoebe George Bradford, daughter of the Elder Judge Edward Green Bradford and sister of Judge Edward Green Bradford, Jr. had died many years before, as had his one daughter, Miss Elizabeth B. Curtis. He departed from Delaware for Massachusetts September 7, 1941. The years pass. Age enfeebles. The light of his life flickers, becomes dim — is gone. His portrait of himself, by himself, has received the last touch of his brush. He sleeps beneath the shadows of Old Swedes in the hallowed ground he so carefully, so lovingly tended. "Lie lightly on his ashes, gentle earth." HUGH M. MORRIS ALBERT LAWRENCE MASSEY Official Court Reporter Albert L. Massey, son of Thomas Massey, Jr. and Virginia Wise Massey, was born at Middletown, Delaware, on March 2, 1881. He was educated at the Middletown Public School, Goldey Commercial College and the Wilmington Business School. Mr. Massey was temporarily employed in Middletown until December 1, 1900 when he went to work for Martin B. Burris, the newly elected State Treasurer. Mr. Massey had charge of the office of State Treasurer and also performed part-time stenographic work for Chancellor John R. Nicholson, commencing in 1903. In 1905, the Legislature created the office of Official Court Stenographer (later changed to Official Court Reporter) for the Court of Chancery. Mr. Massey was appointed to that position by Chancellor Nicholson. When Charles M. Curtis was appointed Chancellor on June 15, 1909, he reappointed Mr. Massey to the office of Official Court Stenographer. Another reappointment came when Josiah O. Wolcott was appointed Chancellor on June 29, 1921, and again when Josiah O. Wolcott was reappointed Chancellor on July 3, 1933. Upon the death of Chancellor Wolcott on November 11, 1938, William Watson Harrington was appointed to succeed him on December 7, 1938. He again appointed Mr. Massey as Court Reporter. On December 11, 1950, Daniel F. Wolcott was appointed Chancellor to succeed Chancellor Harrington and once again Mr. Massey was appointed Court Reporter. He continued to hold office until February 28, 1951, when he was compelled to retire under the terms of the State Pension Law. Thus, Mr. Massey served the Court of Chancery continuously from 1903 to February 28, 1951, almost half a century. He served under five Chancellors and the span of this service can only be appreciated when we realize that, including the writer, there have been only fourteen Chancellors in Delaware since 1791. As was to be expected of a man of Mr. Massey's ability, he came to be the good right arm of every Chancellor with whom he served. For many years he was not only Court Reporter but in effect private secretary to the Chancellor. He thus typed the letters, opinions and other matters required by the Chancellor. Mr. Massey was in complete charge of the material and assisted in the supervision of the publication of Vol. 8 of the Delaware Chancery Reports. He has been responsible for each volume since that time up to and including this very day. When it became necessary to adopt a sweeping revision of the Rules of the Court of Chancery in 1914, Mr. Massey played an invaluable part in the work of getting the rules and forms together and seeing that the printing was properly done. Mr. Massey's work on these Rules was so intense and so intimate that he came to be recognized as a "walking information center" concerning the rules and their application. With the close of World War I and about the time of the appointment of Chancellor Josiah O. Wolcott in 1921, the corporate litigation in the Court of Chancery increased greatly. Thus, there marched before the Chancellors some of the largest corporations and most influential personalities in the United States. The various disputes involved many matters which required the taking of vast amounts of testimony and supervising much of the work to lessen the burden of the Chancellor. He was often appointed Master to call and hold stockholders' meetings for election of directors and to deal with matters arising in receiverships and trustees' accountings. He was appointed sequestrator on innumerable occasions and indeed was responsible for the preparation of forms and procedures dealing with sequestration. Mr. Massey, or as he was affectionately known to the Bar, "Bert" came to be considered "Mr. Chancery." As the years went by and as his accumulation of knowledge concerning the workings of the Court grew, he came to be relied upon by many members of the Bar to "keep them straight." Mr. Massey can enjoy his retirement after 50 years of public service, secure in the realization that he performed his duties in accordance with the highest ideals of public service. The Bench and Bar salute him for his service but even more for the warmth and consideration which accompanied his every action. COLLINS J. SEITZ