Murphy v. Whitney.

ment for the benefit of all the brothers and sisters and of the plaintiff, and no other persons were interested therein, and if they had all, at any time, united in a sale and conveyance of the land, a perfect title would have passed and no rights under the agreement would have been violated.

It is further claimed on the part of the defendants that the agreement was void under the Statute of Frauds, because not in writing. But here there was part performance sufficient to take the agreement out of the Statute of Frauds. The agreement alleged in the complaint had been substantially kept by all the parties thereto until the land became vested in the defendant Mary, and she had thus been largely benefited by the agreement, and had received all the fruits thereof which were to come to her. She could not, therefore, urge against this agreement that it was void under the Statute of Frauds, because not in writing.

It is no answer to this action, assuming that the plaintiff is able to establish the agreement which he alleges, that the real estate has all been conveyed, and that the title to the farm has thus passed out of the defendant Mary. As the agreement related to land the plaintiff is bound in this action to show that the facts are such that he would have been entitled to maintain the action if the defendant Mary had still retained the land, and having established such a state of facts he can pursue the land in the possession of those who have taken it with knowledge of the agreement; and where the land has been converted into money he has the same right to pursue the proceeds thereof. This is not a case where the plaintiff was bound to pay anything more for the land, or to perform any further act on his part. The defendant Mary, before she made the conveyances of the land, had received the whole consideration which upholds the plaintiff's rights, and whoever takes and withholds the land or its proceeds from him with knowledge of his rights is in equity just as liable to him as the defendant Mary herself can be; and this is certainly so as against

Murphy v. Whitney.

the defendants Whitney and Moore, who are alleged to have obtained the property by fraud and to have paid no consideration therefor.

It is no defense to this action that the time has not yet come when the plaintiff could come into possession of the property under the terms of the agreement. The time had come when, assuming the validity of the agreement, he had a vested remainder in the property, and the right that the defendant Mary had to the real estate or its proceeds was a life estate-the right to the income thereof during her life. As a remainderman he had the right to protect the estate so that he might receive the same when it ought to come to him by the terms of the agreement. If the defendant Mary still held the land, and there was danger in consequence of her age and feeble mind, and the undue influence, artifice and fraud of the other defendants, that she might convey it to a bona fide purchaser ignorant of the agreements, he could come into a court of equity and restrain the conveyance thereof. And, so far as the land has been converted into money and the defendants Whitney and Moore are appropriating the same to their own use, and there is danger that it may be dissipated and diverted from the plaintiff, so that he may not be able to get it at the death of Mary, it would be a reproach to equity if its jurisdiction were not sufficient to give him some relief, so that the proceeds of the real estate may be preserved, not only to Mary during her life, but for his benefit at her death.

Although the plaintiff was not a party to the agreement alleged in the complaint, it was made ultimately for his benefit, as finally the whole Murphy estate, under the agreement, was to reach him. The defendant Mary having received the full consideration of the agreement made for his benefit, it cannot be questioned, under many authorities, that he has a standing to enforce it on his own behalf (Gurnsey v. Rogers, 47 N. Y. 233; Vrooman 2. Turner, 69 Id. 280).

Note on Settling an Estate by Contract.

We do not now determine what relief the plaintiff shall have, nor the extent, nature or measure thereof. The defendants must answer the complaint, and if the plaintiff, under the principles of law herein announced, shall be able to establish a cause of action upon the trial, the relief to which he may be entitled will depend upon the case he will be able to make. All we determine now is that upon the facts alleged he is entitled to some relief.

The judgment should, therefore, be affirmed, but with leave to the defendants to withdraw their demurrer and answer within twenty days, upon payment of all the costs of the action subsequent to the interposition of the de

murrer.

All the judges concurred except BARTLETT, J., not sitting.

Judgment affirmed.

NOTE ON THE POWER OF THOSE INTERESTED IN THE ESTATE OF A DECEDENT ΤΟ SETTLE IT BY AGREEMENT WITHOUT JUDICIAL ADMINISTRATION, OR DIFFERENTLY FROM WHAT THE LAW OF DESCENT AND DISTRIBUTIONS

PRESCRIBES.

It has heretofore been settled that the parties interested in the estate of a decedent may, by contract among themselves, dispense with the necessity of administration, and distribute the assets agreeably to their own concurrent wish, provided there are no creditors left unsatisfied (Ledyard v. Bull, 119 N. Y. 62). The collateral inheritance tax law interposes an obstacle to this right, which may be an effectual prevention in some cases. Such settlements are doubtless often made; and the freedom of heirs and next of kin, devisees and legatees to make them, and the legality of the settlement is a valuable advantage to all interested.

The importance of the decision in the text is (1) in the sanction which it gives to the power of a Court of Equity to enforce such an agreement, even when relating to lands, and even though not complying with the Statute of Frauds, provided the circumstances establish a clear equity in its favor; and (2) in the strong reiteration of the rule, which

Note on Settling an Estate by Contract.

has been obscured by some decisions in the books, that if there are persons in being who could give good title should they agree, there is no suspension of the power of alienation, even though they be not agreed, or have agreed (without creating a trust) that they will not convey.

Previous cases have determined a number of incidental points of varying importance, and have been much regarded by conveyancers as affording means of giving ready effect to the wishes of clients, although they have not attracted much attention in litigation.

It will be of interest to my readers to note here some of the most useful of these decisions, and present precedents which embody a variety of provisions having such an intent.

It may be well to notice that parties to a litigation have power to stipulate as to what questions the court shall consider, and thus to confine its decision to those points (Hong Kong Co. v. Cooper, 114 N. Y. 388; Matter of N. Y. Lack. & W. R. Co., 98 N. Y. 447 ; Pacific R. Co. v. Ketcham, 101 U. S. 289). But this rule has not always been applied to proceedings in courts of probate, which have been sometimes regarded as having an administrative rather than a judicial power; but it has nevertheless been held, reversing the surrogate, that an admission of counsel on the hearing of a will contest should, if all the parties on whose behalf it is made are sui juris, be regarded as dispensing with proof (Swenarton v. Hancock, 22 Hun, 28, 40; aff'd without further opinion in 84 N. Y. 633, and rev'g 9 Abb. N. C. 342).

In connection with what is here said, it may be useful to refer to the note in 29 Abb. N. C. 28, on contracts to make or refrain from making testamentary dispositions.

Modern Precedents.

Power to collect expectancy, manifesting intent to assign, is valid. "Know all men by these presents, that I, John L. D. Eyscleshimer, of the city of Janesville, in the State of Wisconsin, have made, constituted and appointed Caroline M. Sherman, of the county of Rensselaer and State of New York, my true and lawful attorney irrevocable, and coupled with an interest, for me and in my name, place and stead to ask, demand, sue for, and recover and receive all such interest, estate, property and effects, real and personal, as I now have, or at any time hereafter may have, or claim as heir at law, devisee, legatee or next of kin of my father, John P. Eyscleshimer, of said county of Rensselaer, and to sell, dispose of and con

Note on Settling an Estate by Contract.

vey all or any of said estate, property and effects for such prices and on such terms as she may deem proper, and to compromise and settle the estate of my said father, and any estate or interest I have or may hereafter have or claim therein, and to execute and deliver all such deeds, conveyances, releases, acquittances and papers as may be necessary or proper thereupon or thereafter, and to receive the proceeds and avails thereof, and of all my interest and estate therein, and all my estate, property and effects aforesaid, and apply the same respectively to the payment and discharge of $1,500 and upwards, in which I am now justly indebted to her, the said Caroline M. Sherman, and the interest already accrued and thereafter to accrue thereon, and finally to do and perform all and every act and thing whatever requisite to be done in and about the premises, as fully as I might or could do if personally present, with full power to her of substitution and revocation, hereby ratifying and confirming all that my said attorney or her substitute shall lawfully do or cause to be done by virtue thereof.

In witness, etc.

In Stover v. Eycleshimer, 4 Abb. Ct. of App. Dec. 309, this was held to take effect on the death of the father, John P., as a transfer in equity of the estate which thereupon descended to the son, the grantor of the power; and that an attachment against the son's property thereafter levied found nothing as against the creditor for whose benefit the power was given, and this notwithstanding that the consideration was a precedent debt.

Executors and surviving partners of deceased may with consent of legatees, etc., fix valuation on payment of which the survivors may take over the business.

This agreement, made between A. B. and C. D., surviving partners of the late firm of , of the first part, and A. B., C. D. and E. F.

and as executors under the last will and testament of Y. Z., deceased, witnesseth:

of

That the said Y. Z. departed this life on or about the , 18.

day

That, at the time of his decease, he was a partner in the said firm of which was dissolved by his death, and, as such co-partner was an owner of an interest in the goods, chattels and effects of said firm, and also in the real estate in which the business of said firm was carried on, at etc

That the said surviving partners and the said executors have carefully and fully investigated the affairs of said late firm of to ascertain the amount of the interest of said deceased in said real and personal estate of said firm at the time of his decease, and the