Eggers v. Anderson.

"That is true.' She said, 'We have talked about this among ourselves several times, and I am more than willing to do this thing for these girls.' She said, 'All the happiness I have had for the last few years they have furnished me, and I am very glad to do this thing for them.' I then produced the will and read it to her carefully twice. She took it herself and read it. It was then executed in the usual way. I kept the custody of the will and gave her a сору."

Not long afterwards the will itself was, at her request, given to her and she tore it up; then, in December, 1897, she executed another will, revoking all former wills and bequeathing her property to her relatives in Germany, and appointing Augustus F. Eggers her executor. This will has been admitted to probate. The revocation of the first will was not made known to the complainants, and they continued, until her death, rendering to Mrs. Stager the same charitable assistance as before, she still holding out the appearance of utter destitution. During the eight years of their ministration they estimate that they spent for her about $600, gathered partly by their own contributions, partly by those of their acquaintances, and partly through entertainments managed by them. At Mrs. Stager's death it was found that in the year 1892 she had in a savings bank about $2,500, to which she added in September, 1892, a deposit of $236, and in February, 1895, one of $150, and she had drawn from the account only three items of semi-annual interest accruing in 1897, 1898, and 1899, amounting to $161.60, so that the balance at her death was about $3,800, and when all charges are paid, her estate will exceed $3,000.

On this state of facts the complainants filed their bill in equity against the executor and legatees under the last will, praying that

"the promise and agreement and will of said Minna Stager in favor of said orators be decreed to be a contract, and irrevocable; and that the same be enforced and the rights of your orators thereunder, or in any manner, in the estate of said Minna Stager, be enforced against said defendants and said estate, and that said defendants and each of them do forthwith account to your orators for all property and estate belonging to said Minna Stager coming into the hands of any and all of them and that it may be clearly ascertained what amount, by reason of the foregoing, is due your orators, and that your orators may be paid such

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Eggers v. Anderson.

The answer of the defendants deny in substance that the transactions between their testator and the complainants amounted to a contract, or were such as to entitle the latter to any relief at law or in equity.

Doubtless a person may enter into a legal obligation to make a certain disposition of his property by will. Johnson v. Hubbell, 2 Stock. 332. Such an obligation does not seem to differ in essence from one concerning the disposition of property by other means. But a will is in its very nature ambulatory, subject to revocation during the life of him who signs it. 1 Jarm. Wills ch. 2; Reid v. Shergold, 10 Ves. 370, 379. Irrevocability would destroy its essence as a will. Hobson v. Blackburn, 1 Ad. Eccl. 278. Said Lord Penzance in Goods of Robinson, L. R. 1 P. & D. 383: "An invariable test when a question is raised as to the testamentary character of a paper, is whether the paper is revocable." This inherent quality is declared by our statute of wills, and cannot be impaired by private contract. Pacta privata jure publico derogare non possunt is one of the maxims of the law, as an instance of which Broom cites the revocability of wills. Lex. Max. 309 (note a); Vynior's Case, 8 Rep. 162. If one should, under contract, execute a will and covenant not to change it, and afterwards should revoke it, substituting another, the latter only could be admitted to probate as a will; the other party would obtain redress only by securing, at law or in equity, such remedy for breach of the covenant as the rules of those jurisdictions provide.

From this mutability of wills it follows that if the whole scope of any arrangement is fulfilled by the mere making of a will, then nothing legally binding upon him who signs the instrument is contemplated, the obligatory force of a contract is not intended, and he remains at liberty to change his mind. The claim that a legal obligation is assumed must be supported by something beyond the consent to make a will.

In the arrangement now before us, the words go no further than the making of the will, and we must consider whether the substance fairly imports anything more.

The language in which the lawyer opened the matter to Mrs. Stager seems like a legal formula prepared to introduce a con

Eggers v. Anderson.

tract, but when applied to the facts, its complexion changes. "In consideration of all that these young ladies have done for you, and all that they are doing for you, and all that they expect to do," is the professional phraseology. But what the complainants had done and were doing for Mrs. Stager was purely charitable, without desire for pecuniary compensation or thought of legal obligation, and what they expected to do was not declared to be of different character. The substantial import was: "You see how kindly disposed these young ladies have been and expect to be towards you; will you not show a like disposition towards them? They have incurred no legal obligation, and they express no purpose to incur any legal obligation for the future, and they ask of you, not that you incur a legal obligation for them, but merely that you execute an instrument, which, if it remain unchanged at your death, will give them all your property, but which in its very nature is changeable at your pleasure as long as you live." This is the request to which Mrs. Stager, with apparent gratitude and gladness, assented. If the design had been to present to the mind of Mrs. Stager a proposal that at all events her property should come to the complainants at her death, would not the lawyer have produced a writing not in its nature alterable as she should choose, and if Mrs. Stager had so understood the proposition, knowing that the mere interest upon her funds in bank exceeded the contributions of charity, and cunning as she evidently was, would she not have refused or at least withheld consent?

I think that under the circumstances the consent to make this will should not be deemed a contract. At the best, it is not certain that the parties meant what they did to amount to a legal obligation, and, as was held by Lord Loughborough in Walpole v. Orford, 3 Ves. 402, 419, which also was a case to enforce an alleged agreement to make a will, such uncertainty is sufficient to stay the hand of a court of equity.

But there is another basis on which the bill may rest. The testimony fully supports the allegation of the complainants that their contributions to Mrs. Stager were induced by her fraudulent representations as to her means of living, and the prayer of the bill is sufficient to entitle the complainants to re

Eggers v. Anderson.

lief on that ground, if a court of equity is competent to afford relief. The bill prays (inter alia)

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"that the rights of your orators in any manner, in the estate of said Minna Stager be enforced against said defendants and said estate, and that it may be clearly ascertained what amount, by reason of all the foregoing, is due your orators, and that your orators may be paid such sum or sums so due them."

That the jurisdiction of the English court of chancery extended to such cases is clear. In Colt v. Woollaston, 2 P. Wms. 154 (1723), the complainants had been induced by fraudulent representations to pay the defendants £240 for shares in a patented scheme to extract oil from radishes, and brought their bill to be repaid, and a decree was made that the defendants repay the sum, with interest, the master of the rolls saying: "It is no objection that the parties have their remedy at law, and may bring an action for moneys had and received for the plaintiffs' own use; for, in cases of fraud, the court of equity has a concurrent jurisdiction with the common law, matter of fraud being the great subject of relief here." In Chesterfield v. Jansen, 2 Ves. Sr. 125, 155, Lord Hardwicke said that a court of equity has undoubted jurisdiction to relieve against every species of fraud. In Evans v. Bicknell, 6 Ves. 174, which was a bill to recover from the defendant money paid by the plaintiff to a third person, in reliance on false representations which the defendant had wrongfully enabled the third person to make, Lord Eldon said: "If there is a jurisdiction at law in such cases, there is also a jurisdiction in equity." And speaking of Pasley v. Freeman, 3 T. R. 51, the leading case at law, where, in 1789, the king's bench had maintained an action on the case for fraudulent representations regarding the credit of a third person, the lord chancellor said: "It has occurred to me that that case, upon the principles of many decisions in this court, might have been maintained here, for it is a very old head of equity that if a representation is made to another person, going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good, if he knows it to be false." In Slim v. Croucher, 1 De G., F. & J. 518, where

Eggers v. Anderson,

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the complainant had suffered loss through a misrepresentation made by the defendant, Lord Campbell, sitting in the court of appeal in chancery, said: "The defence set up in this suit is that there was a remedy at law, and that that is the only remedy competent to the plaintiff. Now, that there was a remedy at law, I think, is quite clear. I am of opinion, however, that this belongs to a class of cases over which courts of law and courts of equity have a common jurisdiction, and in which the procedure of both jurisdictions is adopted for doing justice." Lord-Justice Knight Bruce said: "The only point reasonably arguable was, in which of the courts in this country redress should be sought, and it has been said that redress should be sought in a court of law. It is true that (according to modern practice a useful and beneficial practice, I believe) a court of law would afford redress in the case by means of an action, with the assistance of a jury, but the courts of law in this country exercise jurisdiction in these cases by means of a gradual extension of their power, an extension which I believe has been useful to society; and we know that that does not deprive the courts of equity of their ancient and undoubted jurisdiction, which they exercised before courts of law had enlarged their limits. The observation is familiar-and some of us have heard it used by Lord Eldon-that the jurisdiction not only belongs to this court, but belonged to it originally." Likewise, Lord-Justice Turner said: "I think that if we were to grant any relief upon this appeal, we should be very much narrowing an old jurisdiction of this court by confining it to cases in which it has been exercised. We should, I think, be taking the cases as the measure of the jurisdiction, instead of the examples of that jurisdiction." In Blair v. Bromley, 5 Hare 542; S. C., 2 Phil. 354: Ramshire v. Bolton, L. R. 8 Eq. 294, and Hill v. Lane, L. R. 11 Eq. 215, the jurisdiction was reasserted and exercised. These cases and others cited in them demonstrate the right of the English courts of equity to administer relief in cases like the present.

This jurisdiction is fully recognized by writers on equity jurisprudence. Thus 1 Story Eq. 195: