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causa mortis off from a strict testamentary disposition, but the revocable nature of the gift makes that distinction very slight, and in those jurisdictions where the title to the thing delivered as a gift causa mortis does not pass until the donor dies, the distinction becomes microscopic. Nevertheless the distinction is well established.

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Contracts to bequeath or to devise or to die intestate. inter vivos transaction which closely resembles a testamentary disposition is a binding contract to bequeath or to devise property other than that furnished, or to be furnished, as a consideration to the promisor. Such a contract is either unilateral (the act or property being actually given for the prospective testator's promise) or is bilateral (mutual promises); but whether it is unilateral or bilateral, the contract resembles a gift causa mortis in that a prejudicial step, -the making of the contract, is taken at once. It is, however, really much less testamentary in semblance than is a gift causa mortis because a contract is not revocable by the act of one party alone, whereas a gift causa mortis is revocable by the donor. If the contract is to devise land and the Statute of Frauds has been complied with,10 or if part performance

8 "A gift causa mortis resembles a testamentary disposition of property in this: that it is made in contemplation of death, and is revocable during the life of the donor. It is not, however, a testament, but in its essential characteristics is what its name indicates a gift. Actual delivery by the donor in his lifetime is necessary to its validity, or if the nature of the property is such that it is not susceptible of corporeal delivery, the means of possession of it must be delivered." Smith, J., in Emery v. Clough, 63 N. H. 552, 554, 4 Atl. 796, 798 (1885).

9 Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641 (1895).

10 It is generally held that an oral contract to devise land is within § 4 of the Statute of Frauds. See cases collected in 5 Am. & Eng. Ann. Cas. 495, n.

Whether an oral contract to bequeath personal property is within § 17 is not so clear. In Wellington v. Apthorp, 145 Mass. 69, 73, 13 N. E. 10, 12 (1887), C. Allen, J., for the court, said of a contract to bequeath money:

"Nor is it contended that a contract to leave a certain amount of money by will to a particular person, though oral, is open to objection under the Statute of Frauds. It is not a contract for the sale of lands or of goods; and it may be performed within a year. . . . Such a contract differs essentially from a contract to devise all one's property, real and personal, which comes within the Statute of Frauds. Gould v. Mansfield, 103 Mass. 408."

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The Massachusetts statute mentioned in note 16, post, was passed after Wellington v. Apthorp was decided.

But while a contract to bequeath money is not within § 17 of the Statute of Frauds, it has been intimated that a contract to bequeath specific personal property is within

by the prospective devisee has taken place, chancery will give appropriate relief to the promisee of the contract to bequeath or to devise or to the beneficiary of that contract.

Chancery will not, of course, supply a will where one was not executed, nor supply a bequest or devise contracted for but not inserted in the will actually executed; but in the case of a contract to devise, if the provisions of the Statute of Frauds other than those relating to wills furnish no obstacle, it will make the person who succeeds to the property hold for, and convey to, the promisee or the beneficiary of the promise. There was less reason for equity to interfere to declare and enforce an equity where the contract was for a bequest as distinguished from a devise, as ordinarily a money judgment against the executor or administrator for breach of contract would be adequate relief; but as chancery early took jurisdiction of the administration of estates," and as an incident to that jurisdiction entered decrees for money payment on claims against estates, chancery quite naturally came to speak of an equity where the contract called for a bequest of specific chattels and, even where the contract was for a pecuniary legacy, gave appropriate relief on the theory of an equity in the promisee.12

that section. See Turnipseed v. Sirrine, 57 S. C. 559, 35 S. E. 757 (1899). In that case there was a mutual will contract between an aunt and a niece followed by the execution of the mutual wills and the age of the aunt was such, the legacy was so large, and the wills remained executed so long before the niece revoked hers that in the view of the court the niece had received frec what amounted to a considerable insurance on the aunt's life. The court therefore held that it would be fraudulent for the niece's executor to plead the statute, and that therefore the oral contract for the making of mutual wills was taken out of § 17 of the Statute of Frauds. See also Wallace v. Long, 105 Ind. 522, 5 N. E. 666 (1885).

11 "Already in Elizabeth's day a legatee, instead of going to the ecclesiastical court, will sometimes file a bill in chancery; by this time the ecclesiastical courts have grown too feeble to protect themselves. It may be that the cases in which the Chancery first interfered were cases in which the legatee was not a mere legatee, but was also a cestui que trust. But at any rate the Court of Chancery soon became the regular court for actions by legatees. Then again the creditor had often an occasion to go thither. He had no specialty, or no specialty that bound the testator's heir, and the testator's personal estate was inadequate for the payment of his debts; on the other hand the testator, being an honest man, had devised his real estate to X. and Y. upon trust to pay his debts. Here the creditor wanted the aid of a court of equity because he wanted to enforce a trust. Thus in one way and another the court obtained a footing in the field and gradually it subdued the whole province of administration." Maitland's Equity and the Forms of Action, 193.

12 See Ridley v. Ridley, 34 Beav. 478 (1865).

In the United States, where we do not have the old general administration bill,

It is difficult to name and classify the relationship recognized and enforced in these contract-to-will and contract-to-die-intestate cases, where equity takes jurisdiction, for the courts often use specific-performance-of-contract language and often use trust language. Take, for instance, a case where, because of the Statute of Wills and of section four of the Statute of Frauds, the express contract cannot be recovered upon at law.13 The complainant having complied with equity's requirement of part performance, what is the nature of his recovery in chancery? The situation is different from the ordinary specific-performance situation, for in that ordinary situation chancery originally compelled the execution and delivery of the particular conveyance contracted for, as, indeed, it will so compel to-day in the case of a contract for real estate in a

or equivalent chancery jurisdiction, it is probably true everywhere that equity will not give a remedy on these contracts unless the legal remedy is inadequate.

In Day v. Washburn, 76 N. H. 203, 81 Atl. 474 (1911), where, in violation of testatrix's promise to bequeath all her property to plaintiff, she left certain items of personal property of considerable value to two of the defendants, equity jurisdiction was rested on the ground that while "a decree for specific performance would have precisely the same effect as a judgment for damages in a suit at law," yet, as the administrator with the will annexed had been made a party defendant, the bill would be treated as if he had brought a bill to compel the other parties to interplead.

In Kundinger v. Kundinger, 150 Mich. 630, 114 N. W. 408 (1908), a complainant who had secured a divorce from the testator for his adultery and had refrained from bringing legal proceedings to procure alimony, on the testator's promise that if she would so refrain he would take care of her and provide by will for her support, was allowed what the court called "specific performance" against the trustee to whom testator had left his property in trust for others. That was on the ground that while complainant might have filed a claim in the Probate Court and recovered damages for breach of contract, - citing In re McNamara's Estate, 148 Mich. 346, 11 N. W. 1066 (1907), that was not an adequate remedy, as she was entitled to have the support come to her as needed and "no provision in dollars and cents could quite as efficiently meet this requirement" as could the proper equity decree. Cf. Riley v. Allen, 54 N. J. Eq. 495, 35 Atl. 654 (1896).

13 Most of the specific-performance-of-contract-to-bequeath-or-devise cases that get into the reports are part-performance-of-oral-contract cases, and quite frequently they are cases involving the troublesome question of whether the rendition of personal services not capable of reasonably definite and satisfactory pecuniary valuation will suffice as part performance. For late cases of that kind see Brasch v. Reeves, 124 Minn. 114, 144 N. W. 744 (1913) and Smith v. Cameron (Kan.) 141 Pac. 596 (1914). See a note on such cases in 44 L. R. A. N. S. 733. Compare the Statute-of-Frauds cases cited in the notes in 15 L. R. A. N. s. 466 and 38 L. R. A. N. s. 752. On the right to specific performance or injunction during the lifetime of the one who has conveyed or is about to convey property in violation of his agreement to leave the same at his death to complainant, see Newman v. French, 138 Ia. 482, 116 N. W. 468 (1908) and note in 18 L. R. A. N. S. 218.

sister state or a strictly foreign jurisdiction, while no court will compel the execution and probate of an instrument to serve as the will of the deceased. The situation is also different from that of the customary constructive trust, for the recovery is not measured by the enrichment which the deceased, and through him his heirs, next of kin, devisees, or legatees, have derived from the promisee, but instead is measured by what was promised in exchange for that enrichment. It would seem as if the situation is essentially one of specific performance,14 but as if, as an aid to clear thinking, it is worth while to discriminate the juridical act in such a case from ordinary specific performance by adopting for it the phrase "quasi-specific performance." 15 On this quasi-specific-performance theory, then, relief in equity will be given in the contract-to-devise cases where the contract is in writing, or, if it is oral, comes within the part-performance doctrine,16 provided that to give such quasi

14 In Bolman v. Overall, 80 Ala. 451, 455, 2 So. 624, 626 (1886), Somerville, J., said of a contract to leave property by will:

"The principle upon which courts of equity undertake to enforce the execution of such agreements is referable to its jurisdiction over the subject of specific performance." While the court did also use language denoting the trust theory, many courts consider specifically performable contracts only a separately named species of trusts. And in Burdine v. Burdine's Executor, 98 Va. 515, 519, 36 S. E. 992, 993 (1900), Buchanan, J., said:

"Strictly speaking, an agreement to dispose of property by will cannot be specifically enforced, not in the lifetime of the party, because all testamentary papers are from their nature revocable; not after his death, because it is no longer possible for him to make a will, yet courts of equity can do what is equivalent to a specific performance of such an agreement by compelling those upon whom the legal title has descended to convey or deliver the property in accordance with its terms, upon the ground that it is charged with a trust in the hands of the heir at law, devisee, personal representative, or purchaser with notice of the agreement, as the case may be." See a note on "Specific Performance of Contract to Make Will" in 31 Ann. Cas. (1914 A), 399.

15 That new name should also be applied to the enforcement of a contract in equity against the vendor's grantee with notice or without value (see Snell v. Hill, 263 Ill. 211, 105 N. E. 16 (1914)), and indeed to its enforcement against anybody but a party to the contract.

16 Whether the Massachusetts statute which provides that "No agreement to make a will of real or personal property or to give a legacy or make a devise shall be binding unless such agreement is in writing signed by the person whose executor or administrator is sought to be charged, or by some person by him duly authorized" (1 Rev. Laws, Mass., 1901, ch. 74, § 6, p. 655) is subject to the part-performance doctrine is not clear from its language, but probably it is not subject to it. See Emery v. Burbank, 163 Mass. 326, 39 N. E. 1026 (1895). Neither is it clear whether the statute applies except where legal or equitable relief is sought against the executor or administrator.

specific performance would not work unjustifiable hardship and oppression.17

But if, on the other hand, the case is not in fact one for quasispecific performance, but instead is one for the application of trust principles, the trust, being enforced against some one other than the promisor, must be some species of constructive trust. If constructive-trust principles are to be applied, equity should say to the defendant: "You must either reimburse the complainant to the extent that his services, or the other consideration furnished, enriched the deceased, and through him enriched you, or else you must hand over the property promised complainant by the deceased. You must elect which you will do."

The reason for such an election is that a constructive trust is enforced merely because the express promise is not to be performed and because, on that account only, unjust enrichment would take place if a trust were not enforced. If the defendant is willing to perform, even though his performance is tardy, he should be permitted to do so and no constructive trust be enforced. But often in the contract to will cases equity will not want to give the defendant any election because it will not be just to give him one, in most cases he ought to be made to perform and should not be allowed to rescind, so it seems more satisfactory on the whole to treat the situation as one of a contract coming under the part-performance doctrine and therefore quasi-specifically enforceable in equity, though not literally specifically enforceable.18

Where an equity is sought to be enforced against the heirs, next of kin, devisees, or legatees, the executor or administrator is not "sought to be charged." The executor was sought to be charged in Emery v. Burbank, supra.

For a vigorous protest against a too ready acceptance of the claims of one who seeks to recover on an oral contract to devise, see Hamlin v. Stevens, 177 N. Y. 39, 69 N. E. 118 (1903).

17 On that proviso, see Owens v. McNally, 113 Cal. 444, 45 Pac. 710 (1896); Winne 7. Winne, 166 N. Y. 263, 59 N. E. 832 (1901); Mahaney v. Carr, 175 N. Y. 454, 67 N. E. 903 (1903).

18 While equity can refuse to give quasi-specific enforcement where to give it would lead to unfortunately harsh results to the promisor's surviving family, the law courts have not, of course, any power to withhold the legal remedy for such a reason. If the contract is not in writing and the Statute of Frauds applies, the law courts escape any difficulty by confining the plaintiff to a quasi-contract recovery; but where the contract is evidenced in a writing which is signed by the party to be charged and which otherwise complies with the requirements of the Statute of Frauds, or where the contract is oral and the Statute of Frauds does not apply, the law courts must assess.

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