OCHS v. OCHS

1. By an agreement of lease, deceased, for the period of his life, leased the tract in question to his son at a yearly rent of $150, the lessee to pay all taxes and insurance and to provide certain living quarters for the father. The father agreed to devise the tract by will of even date to the son, "subject to a payment to my executors, and (sic) amount mutually understood and agreed upon by both parties. Twelve years before, the son, together with another brother, had come to work for the father at his request, the father promising to divide his twenty-two-acre farm, each son to get a certain acreage eventually. After eight years of working without compensation, father and sons formed a partnership. In 1914, the father agreed to the division of the farm, each son to take over and operate his separate tract at a rental of $150 a year, the sons to pay taxes and insurance and, at the father's death, to pay each of the eight other children $250 each. The lease in question was executed at that time. The son predeceased the father, and by will devised his property in two shares, one to his wife absolutely, and the other to her in trust, to enjoy the income thereof for life or widowhood, and the remainder to go to their son at her death or remarriage. Subsequently, the father died testate, his will directing his executors to sell the tract in question and to pay his son's widow twenty-five per cent. and her child fifteen per cent. of the proceeds. The wife prays a decree that the tract is held in trust by defendants for her and that they convey the same to her. Decree granted for conveyance to her and her son of the interests in the property in accordance with her husband's will, complainant to pay the defendant executors $2,000 ($250 for each of eight children of the deceased) less any rents paid by her subsequent to deceased's death.

2. The son and his wife used and improved the tract in question from the time of the agreement of lease, as their own, providing living quarters for the deceased; and the father had the tract divided and the son paid the taxes on his parcel. Held, although the agreement of lease does not come within the statute of frauds because the price to be paid by the son was not reduced to writing and signed by the father, nevertheless, the facts and circumstances are clearly sufficient to take the case out of the statute and permit proof by parol. The evidence shows a full, complete and long continued performance by the vendee. To permit the interposition of the statute would work a fraud upon the vendee and his successors in interest; the work done and the moneys spent by him and his widow in reliance on the contract raise a complete estoppel against the defense of the statute.

3. Defendants' contention that the widow and her son have not renounced the legacies given under the will of the deceased and hence cannot maintain this claim against the will, is clearly without weight. In the instant case the widow has asserted her rights against the will and has done nothing in the way of accepting or indicating any acceptance of the benefactions to her under the will. Moreover, nothing which she could do could prejudice the right of her infant son. No acceptance can be presumed against him.

4. The parol proof as to the missing item in the written contract — the amount to be paid by the vendee — is completely satisfying to the court. Defendants were all perfectly aware of the contract which had been made so long ago and so continuously carried out; their dissatisfaction arises out of the feeling that the amount to be paid by the vendee is now too low. The amount was fair and adequate when made; subsequent developments have not made it otherwise.

5. There was adequate consideration for the deceased's promise to devise. The promise was part of the entire lease-contract, which contract, including the promise to devise, was the carrying out of a previous understanding whereby the son came to work for the father without pay.

6. Defendants contend that the interest of the son under the agreement to devise lapsed by virtue of his predeceasing his father, and the lapsed interest did not vest in his own son because the latter was given a legacy under the will of his grandfather, citing section 22 of the Wills act. The argument is unsound. First, the legacy to the grandson is not contained in any instrument which devises the tract to the son, and it cannot be presumed that the legacy would have been given had he made the devise to his son, as agreed upon. Second, the agreement of lease did not provide, and it was not the intent of the parties thereto, that the devise to the son was to be contingent upon the latter being alive at his father's death.

7. The agreement of lease was, as regards the tract in question, essentially one of purchase and sale, whereby the son bought the property with an obligation to pay further installments of the purchase price, the conveyance to occur at the father's death. The son, therefore, had an equitable interest in the property which he had the right to dispose of by will. The father had no right to dispose of it otherwise than in accordance with the directions of that will. Hence, that is the devise which must equitably be assumed to have been made by the father, under the equitable doctrine that equity considers as done that which ought to have been done.

8. Defendants' answers alleged that a material part of the agreement (the purchase price) set out in the bill was not in writing, and pleaded the statute of frauds. The replications were formal. Defendants now contend that complainant ought not be allowed to prove the purchase price agreed upon by parol evidence. Held, no such objection was made at the trial; it is purely technical. Leave granted to complainant to file a special replication setting up the performance of the oral part of the agreement, before entry of final decree, no prejudice to defendants resulting from this action.

PER CURIAM.

The pleadings and proofs have been carefully examined. The conclusions of the learned vice-chancellor who heard the cause were correct in law and fact. The issues raised were properly determined and the decree will be affirmed, with costs.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 15.

For reversal — None.