Jaffee et al. v. Jacobson et al., 48 F. 21

Thayer, J. We find it necessary to determine in the first instance upon what consideration the promise rests which the circuit court was asked to specifically enforce. There is an evident attempt made in the amended bill to make it appear that Col.

Jacobson promised to leave his nieces one-half of his large estate if Bernstein, their guardian, merely obtained their father’s consent to give them into his charge and custody; that the obtaining of such consent by the settlement of pending litigation between the children and their father, was the sole consideration upon which their uncle’s promise was based; and that, as such consent was obtained prior to Jacobson’s death, therefore the whole consideration for the promise sought to be enforced has been duly rendered and received.

We are wholly unable to lake that view of the case, even as it is stated in the amended hill. The complaint as amended shows that the promise counted upon is extracted from conversations and letters of Col. Jacobson concerning family matters, and undoubtedly the latter were written with that freedom which usually characterizes correspondence on such subjects. It also appears that he represented in the course of the same correspondence, that he was desirous of adopting the complainants as his own children, because he and his wife were childless, and because of the love he bore their mother, his deceased sister.

We think it manifest, therefore, from the face of the bill, construing it, as we must, in the light of these facts, that the consideration moving Col. Jacobson to promise to leave the complainants one-half of his estate, was not merety the consent obtained by the ghardian from the father that he might have their custody, but certain benefits and advantages that were to accrue to him after his nieces came into his custody. It must have been obvious to Mr.

Bernstein, the guardian, as it is to us, that the promise in question was based upon the understanding that one or both of the complainants should become members of Col. Jacobson’s household, and for a certain period (dependent, of course, upon the duration of his own and their lives) should assume, with respect to himself and his wife, the relation of parents and children, with all that that relation implies. It was of no advantage to Col.

Jacobson, as the guardian must have known, that the father’s consent was obtained that he might have their care and custody, unless one or both of them were actually placed in his custody and became members of his family, yielding to him in the mean time such service, affection, and obedience as a dutiful cjiild ordinarily yields to its parents. It w'as the pleasure and mutual benefits which the deceased expected would result from the establishment and continuance of that relation until his death, that induced the deceased to promise to leave to his nieces an undivided one-half of his estate.

We are accordingly of the opinion that the bill shows that the substantial consideration upon which the alleged promise rests was not rendered in Col. Jacobson’s life-time. He died before either of the children became members of his family, before either of them emigrated to this country, and before he acquired any actual or legal control over their persons. Viewing the case in that light, we have next to determine whether a court of equity should specifically enforce the alleged contract, and we are all agreed that this question must be answered in the negative.

We concede the law to be that a court of equity will specifically enforce a promise to leave to another the whole or a definite portion of one’s estate as a reward for peculiar personal services rendered, or other acts done by the promisee, which are not susceptible of a money valuation, and were not intended to be paid for in mone3r, provided the consideration has been substantially received at the jmomisor’s death; and it is no objection to the enforcement of such a contract that- it was entered into with a third party for the promisee’s benefit, if the latter has acted under it and executed it.

Such seems to be the substance of the rule fairly deducible from the authorities cited, and relied upon by appellants’ counsel. Rhodes v. Rhodes, 8 Sandf. Ch. 279; Van Dyne v. Vreeland, 11 N. J. Eq. 371; Sutton v. Hayden, 62 Mo. 102; Sharkey v. Mc Dermott, 91 Mo. 648, 4 S. W. Rep. 107; Haines v. Haines, 6 Md. 435; Pom. Cont. § 114, and citations.

Rut wo are of the opinion that a court would not be justified in decreeing specific performance in a case like the one at bar, where by reason of his untimely death the promisor did not in fact enjoy any of the pleasures, benefits, or advantages which he hoped to realize from the society, companionship, or services of his nieces. We find no precedent for decreeing specific performance under such circumstances. In all of the cases called to our attention in which relief was afforded, it appears that the promisees had substantially discharged the obligations which they had severally assumed.

In most, if not all, instances they had lived in the promisor’s household as members of his family, and had rendered faithful and affectionate services for a long period of years. It was not possible, therefore, to administer adequate relief, otherwise than by decreeing specific performance. For the reasons thus indicated, that the bill does not show such a substantial discharge by the complainants, during Col.

Jacobson’s life-time, of the obligations which the agreement contemplated were to be discharged, as will justify the specific enforcement of the alleged promise, the demurrer was properly sustained, and the decree dismissing the bill is affirmed.