Plaintiff brought an action for damages in two counts against
executors in the district court in New York, the first count
alleging a promise of the testatrix to bequeath a certain sum in
return for plaintiff's services and the second her promise to pay
their reasonable value. On motion, the first count was ordered
transferred to the equity docket upon the ground that, by the law
of New York, it could not be entertained at law.
Held that
this was an error, depriving plaintiff of the right of trial by
jury, and properly rectified by mandamus.
Rule absolute.
The case is stated in the opinion.
Page 247 U. S. 238
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a petition for mandamus, or, if that is denied, for
prohibition or certiorari, to the District court for the Southern
District of New York upon the following facts: the petitioner
brought an action in two counts against the executors of a widow
named Frank Leslie. The first count alleged a promise by Mrs.
Leslie that, if the plaintiff would perform certain personal
services of attendance and care to her, she would bequeath to the
plaintiff $50,000. It set forth the performance of the services in
great detail, alleged the death of Mrs. Leslie and probate of her
will, the bequest to the plaintiff of not more than $10,000, and
claimed $40,000 with interest from one year after the death of the
testatrix, as damages. The second count repeats by reference the
averments of the first count, but alleges a promise to pay the
reasonable value of the plaintiff's services, set at $50,000, of
which $10,000 have been satisfied by legacy, and claims damages as
before. On motion of the defendants, the judge sitting to hear
motions in the district court ordered the first cause of action to
be transferred to the equity side of the court and docketed as an
equity cause, and to be stricken out of the complaint in the action
at law, but only for the purpose of transfer, allowing the
plaintiff to amend, etc. The ground disclosed was that, by the law
of New York, the
Page 247 U. S. 239
plaintiff could not sustain the first cause of action at
law.
We do not find sufficient ground for the opinion of the judge in
the New York decisions. No doubt alleged contracts to make a
provision by will must be approached with great caution in the
matter of proof, but there is no doubt that, if proved, they are
valid so far as no statute intervenes. So much seems to be assumed
by the order of the judge, and is the law, we believe, of New York
as well as of other states and England. But, if valid, we see no
reason why a contract to bequeath a certain sum should not give
rise to an action for damages, if broken, as certainly as a
contract to pay the same sum in the contractor's life, or at the
moment of the contractor's death.
Parker v. Coburn, 10
Allen 82. In cases of contracts to leave all the testator's
property, including land, or a proportion of a residue requiring an
account to ascertain it, equitable remedies have been thought
proper, and in some such cases it has been assumed for the purposes
of argument that an action would not lie at common law.
See
Winne v. Winne, 166 N.Y. 263;
Phalen v. United States
Trust Co., 186 N.Y. 178. But we have seen nothing that
suggests an arbitrary departure by the courts of New York from the
common law in cases like the present.
See Farmers' Loan &
Trust Co. v. Mortimer, 219 N.Y. 290, 295;
De Cicco v.
Schweizer, 221 N.Y. 431;
Silvester's Case, Popham
148, 2 Roll.R. 104;
Fenton v. Emblers, 3 Burr. 1279;
Van Houten v. Van Houten, 89 N.J.L. 301;
Krell v.
Codman, 154 Mass. 454.
If we are right, the order was wrong and deprived the plaintiff
of her right to a trial by jury. It is an order that should be
dealt with now, before the plaintiff is put to the difficulties and
the courts to the inconvenience that would be raised by a severance
that ultimately must be held to have been required under a mistake.
It does not
Page 247 U. S. 240
matter very much in what form an extraordinary remedy is
afforded in this case. But as the order may be regarded as having
repudiated jurisdiction of the first count, mandamus may be adopted
to require the district court to proceed and to give the plaintiff
her right to a trial at common law.
See Brown v. Circuit Judge
of Kalamazoo County, 75 Mich. 274.
Rule absolute.