adequate.27 If the contract is in writing, as required by the Statute of Frauds, its breach will justify a claim against the estate or, where the local statutes permit, an action at law will lie on it.28 Wherever the sole beneficiary of a contract may sue upon it, the third person who by the contract was to receive a legacy or devise may present a claim against the promisor's estate or sue for the contract's breach.

A

What has been said about contracts to bequeath or to devise is in general applicable to contracts to die intestate. If the contracts meet the statutory requirements, claims against the estate of the deceased promisor for the breach of such contracts will be upheld or actions at law for their breach will lie, and, if the legal remedy is not adequate, suits in equity may be maintained. contract to die intestate cannot literally be enforced specifically at the suit of the heir or next of kin with whom the ancestor made it, but if the ancestor, in breach of his promise, has died testate and by his will left the property or part of it to others, equity will enforce an equity in favor of the promisee,29 i. e., will give him quasi-specific performance.

Bequests, devises, or intestacies secured by oral or unattested written promises to apply for others some or all of the property so obtained. -The foregoing observations prepare the way for the consideration of the cases of devises, bequests, or intestacy obtained by the recipient's oral or unattested written promises. The contract-tobequeath-or-devise cases, which we have just been considering, where the person contracting to bequeath or to devise does not carry out the contract are, naturally, much like the cases where there is a bequest or devise given in consideration of the promise of the recipient to devote the property to specified uses. In the than that the wills might "furnish written evidence to take the oral contract without the Statute of Frauds."

27 See n. 12, ante.

28 Wellington v. Apthorp, supra; Jenkins v. Stetson, 9 Allen (Mass.) 128 (1864); Carroll v. Swift, 10 Ind. App. 170, 37 N. E. 1061 (1894). In Burgess v. Burgess, 109 Pa. St. 312, 316, 1 Atl. 167, 168 (1885), Clark, J., said:

"A contract to devise may in some instances be enforced by decree for specific execution Brinker v. Brinker, 7 Barr. (Pa.) 53 (1847) — or it may furnish ground for an action, in case of a breach, and the damages will be computed according to the same measure, as if the action were for breach of a contract to convey."

Cf. Riley v. Allen, supra, 503.

29 Jones v. Abbott, 228 Ill. 34, 81 N. E. 791 (1907). Cf. Taylor v. Mitchell, 87 Pa. St. 518 (1878).

latter cases, however, while there is often a contract in form, it is perhaps doubtful whether there is a contract in fact.

In the usual case of a devise or legacy on an oral promise the testator says, in effect: "If I make you devisee or legatee in the will which I am about to make, or if I do not revoke the devise or legacy I have provided for you in the will which I have made (and I reserve the right to do as I please in the matter), will you hold the property in trust for so and so [or pay or convey such and such part of it to so and so]"; and the prospective devisee or legatee expressly or by conduct answers that he will. If a contract is to result from that kind of conversation, which at least gives the illusion of a contract, it must be on the theory that the prospective devisee or legatee really makes an offer to perform, and that the testator accepts it by making his will in the devisee's or legatee's favor, by refraining from revoking it thereafter, and by dying. It is an offer of a unilateral contract not accepted until the testator dies with the will in the devisee's or legatee's favor unrevoked.

But a promise which cannot bind the promisor until the very fractional part of a second in which the promisee dies and his will becomes effective is at the best a peculiar thing, and is so like an acceptance of an offer of contract sent after the offeror's death that it may well be deemed in a common-law jurisdiction not to be enforceable as a contract. In some jurisdictions the promisor in these will and intestacy cases would be estopped to deny acceptance in time,30 just as occasionally in other contract actions a promisor is deemed estopped to deny that there was consideration for his promise.31 Unless the estoppel theory is to be adopted, it would seem as if in these will or intestacy cases, where the person expected to make the will or to die intestate makes no promise and reserves entire freedom to change his mind, a common-law court cannot properly regard contracts as entered into; for in a common-law jurisdiction death cannot properly serve to mark the completion of the act of willing or forbearing to will which is to bind the promisor by a contract, since until the death of the testator or intestate the promisor is not bound and after his death. there is no existing promisee to be bound to.

The problem is just the sort that would have delighted the

30 See McDowell v. McDowell, 141 Ia. 286, 119 N. W. 702 (1909).

31 See Ricketts v. Scothorn, 57 Neb. 51, 77 N. W. 365 (1898).

medieval lawyer and that makes the modern lawyer and judge impatient, and were the result of the no-contract view to be a denial of any relief or even of adequate relief, to the beneficiary of the promise, all American common-law courts would doubtless adopt the estoppel view or qualify their view of the effect of death sufficiently to find a contract, as some have already come near doing, if not done.32 There is, however, sufficient relief furnished in

32 The cases where the beneficiary has insisted on a contract remedy are relatively few. The earliest seems to have been Rookwood's Case, Cro. Eliz. 164 (1590), the full report of which was as follows:

"Rookwood, having issue three sons, had an intent to charge his land with four pounds per annum to each of his two youngest sons for their lives; but the eldest son desired him not to charge the land, and promised to pay to them duly the four pounds per annum; to which the two younger sons, being present, agreed; and he promised to them to pay it. And for non-payment after the death of the father, they brought an assumpsit. The whole court held clearly that it was well brought and that it was a good consideration; for otherwise his land had been charged with the rents."

The promise by the father should doubtless be interpreted as a promise not to charge by deed or will, i. e., to let the lands go to the heir by descent uncharged.

The case of Dutton v. Poole, Vent. 318, 2 Lev. 210 (1678), was one where a father, who was going to dispose of a wood to raise a portion for his daughter, refrained from doing so, and allowed the property to descend to his son and heir, on the promise of the latter to pay his sister £1000, and the daughter was allowed to recover in assumpsit against the son.

But the English courts in Rookwood's Case and Dutton v. Poole did not discuss the question whether there was a binding contract or not, but considered solely the question whether the plaintiffs were sufficiently parties to the contract, conceded in each case, to sue upon it. The nearness of the relationship of the beneficiary to the promisee and all that such nearness implied, the supposed consideration of love and affection which led the promisee to exact the promise for the benefit of plaintiff and the supposed moral consideration found in the promisee's moral duty to provide for the plaintiff, were deemed to justify a judgment for plaintiff. But Dutton . Poole is no longer law in England and has not been law there since 1861, when the case of Tweddle v. Atkinson, 1 B. & S. 393, ended all controversy about the matter, and Rookwood's Case can be law there only if the fact that the younger sons were present and "agreed," made them parties to and not mere beneficiaries of the contract claimed, if one there was. See Wald's Pollock on Contracts, 3 ed., p. 241; West Yorkshire Darracq Agency, Limited v. Coleridge [1911] 2 K. B. 326.

Since in England even the sole beneficiary of a contract cannot sue on it, and mere nearness of relationship to the promisee, or moral consideration characterizing the beneficiary, no longer makes him a party to the contract or within its consideration, the beneficiary of an oral promise made to secure a legacy or devise can have no remedy there as such beneficiary, either at law or in equity, against the promisor. His sole remedy there is in equity as cestui que trust of a constructive trust.

In the United States, in most of which the sole beneficiary of a contract can sue upon it, the question of a right to sue at law in these legacy, devise, and intestacy cases seems seldom to have arisen. The reason probably is that nearly always the equity

chancery under its constructive-trust doctrine, the sounder view is that equity does not specifically or quasi-specifically enforce a

remedy is available and is so much more satisfactory than the legal. The theoretical difficulty of finding a contract does not seem to trouble the courts apart from the matter of consideration.

In Parker v. Urie, 21 Pa. St. 305 (1853), where a son died intestate in reliance on the promise of his father, who received the intestate's estate, to pay plaintiff $500 out of the son's estate, the court thought that there was a contract which the father was "bound, in conscience and law, to fulfill," but yet recognized that to the time of his death the son had the right to change his mind and make a will cutting out the father. In that event, said Lewis, J., for the court, the promisor "would be relieved from the performance of his contract, not because there was no original consideration for it, but by reason of the failure of the consideration expected, and which formed the inducement to enter into the engagement."

But in Parker v. Urie the promisor, after the decease of the promisee and on his own deathbed, made to the beneficiary what the court deemed a valid oral partial assignment of a bond, the amount assigned being the amount which the assignor was to pay the beneficiary, and the defendants as executors had collected the whole bond; so on that theory of the case an action at law was clearly proper. Any tenable theory to support the case may be adopted, because the action was an amicable one, "the case to be tried without regard to the form of action or the proper joinder of parties."

In Gaullaher v. Gaullaher, 5 Watts (Pa.) 200 (1836), it was held that a legatee who, in order to prevent the alteration of testator's will in plaintiff's favor, had agreed to give the plaintiff the legatee's notes for $5,000 and to pay the notes, and who actually had given the notes, could not successfully maintain the defense of no consideration. The court said that, if the legatee had not given the notes, chancery would have declared a trust, "and it would be strange if a moral obligation, sufficient to raise a trust, were not sufficient to sustain a promise." The merger of the equitable cause of action in the notes, i. e., the discharge of that cause of action in those notes, was of course sufficient valuable consideration for them.

In Williams v. Fitch, 18 N. Y. 546 (1859), a count for money had and received was sustained at the suit of the beneficiary against the executor of the one who had made the promise in order to gain succession by the promisee's intestacy. The promisor was trustee of a fund for his daughter, and he not only made her the promise to hold the fund for the plaintiff, but after the intestacy of the daughter he held the fund for the plaintiff as the latter's property and loaned portions of it out in the plaintiff's name. That case was decided in 1859, and therefore after the reformed procedure introduced by the New York Code of Procedure of 1848 had been in operation for some years; but even as a common-law decision it could perhaps be justified on the ground that the promisor became a trustee of personalty for plaintiff and that "where the trust is fully executed and there remains nothing to be done but for the trustee to pay over the amount to the cestui que trust, an action at law may be maintained in all states for the payment of the amount found due." 2 Perry on Trusts, 6 ed., § 843. In Illinois, under the influence of the moral consideration idea, an action at law was allowed in Lawrence v. Oglesby, 178 Ill. 122, 52 N. E. 945 (1899), where the circumstances were much like those in Rookwood's Case, supra. A father, who had made his will mainly in favor of his son, called his son and daughter together and got the son to promise to pay his sister “$1,500 not mentioned in my will." The court found

33

contract in such cases, but simply raises a constructive trust, and since the common-law court does not need to act, it should re

the son's promise to be supported by the consideration of “the honesty and rectitude of the duty of compliance," and enforced it. The real consideration, if there was one, was the father's dying without altering his will in such a way as to give his daughter the $1,500. The daughter, like the younger sons in Rookwood's Case, was either a party to the contract, if there was one, or else a sole beneficiary. The Illinois court, which is quite rigid about requiring in the constructive-trust-for-breach-of-oral-trustor-promise will cases active solicitation on the part of the legatee or devisee, or actual fraudulent intent at the time of making the promise, or breach of some special confidential relationship, abandoned these tests when the question was one of recovery at law for breach of the promise. As Phillips, J., for the court said (178 Ill. 122, 129):

"To hold the son could not be required to comply with such promise as not being based on a sufficient consideration would be to disregard the fact that the will was merely ambulatory and could be changed by the testator so long as he was of sound and disposing mind, and that he must have known that fact, and would be, in effect. to aid the appellant in the perpetration of a fraud on appellee."

If the Illinois Supreme Court would only carry that fraudulent retention idea over into the trust cases, where it belongs, its decisions in those cases would no doubt become satisfactory. For equity to grant relief a contract does not have to be found, since unconscionable retention of property by the defendant is enough.

It should be noted that the common-law courts have modified their view of the effect of death sufficiently to find a contract between the testator and a legatee or devisee for the benefit of a third person where the will gives a specific legacy or a devise on the condition expressed in the will that the legatee or devisee shall pay a specified sum to the intended beneficiary. If the legatee or devisee accepts the gift provided in the will, he becomes personally liable to the intended beneficiary, who may sue at law and recover the full amount specified, even if it exceeds the value of the legacy or devise. See cases cited in Wald's Pollock on Contracts, 3 ed., p. 252, where Professor Williston points out that "even in England there are cases that have never been overruled in which a beneficiary was allowed to recover in an action of debt against a devisee whose devise was left upon the condition that he should make a payment to the beneficiary." On the personal liability of devisees for charges imposed by the will, see 129 Am. St. Rep. 1056, n.

33 In Heinisch v. Pennington, 73 N. J. Eq. 456, 68 Atl. 233 (1907), where for various reasons equitable relief was not given, Emery, V. C., said (p. 462):

"This equitable remedy is not by way of specific performance of a contract, and a personal decree for performance and relief, based on such grounds, would seem clearly to disregard the express provisions of the statutes, both of frauds and wills. I have not been referred to, nor do I find, any case where relief was granted against the legatee in such cases, except by seizing, either in his hands or of those who held for him, the property devised or bequeathed to him for the purpose of impressing it with a trust." See also Belknap v. Tillotson, 82 N. J. Eq. 271, 88 Atl. 841 (1913).

For the same general reason it was held in Winder v. Scholey, 83 Oh. St. 204, 93 N. E. 1098 (1910), that a suit to enforce a trust against legatees, who obtained a bequest on the promise of one made for all before the will was executed, was not on a contract express or implied and so was not barred by the six-year Statute of Limita