Opinion
January 17, 1935.
March 25, 1935.
Contracts — Promise to convey estate at death — Breach — Anticipatory — Ejectment against heirs — Adequate remedies at law — Jurisdiction of equity — Decree certifying case to law side.
1. A decree certifying the case to the law side of the court is properly entered in a proceeding in equity to enforce an alleged contract entered into by defendant with plaintiff to convey all his estate to her at his death, since plaintiff has adequate remedies at law, and to require present performance by defendant would be to extend his promise beyond that alleged by plaintiff. [138-40]
2. Where a party to a contract agrees to convey at his death all his estate to the other party to the contract, if a breach of such contract occurs, ejectment will lie against heirs of the promisor taking real estate by devise contrary to the agreement. [140]
3. Where the promisor in his lifetime executes a will leaving all his estate to others, the promisee may treat this as an anticipatory breach of the contract, and sue to recover the consideration paid. [140]
Appeals — Practice — Amendments — Nunc pro tunc — Proceedings in equity.
4. The Supreme Court has power to order amendments nunc pro tunc after a final decree has been entered in proceedings in equity. [139]
Argued January 17, 1935.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 154, Jan. T., 1935, by plaintiff, from order and decree of C. P. Delaware Co., Dec. T., 1933, No. 1330, in case of Mary Van Meter v. Isaac Norris. Decree affirmed.
Bill in equity.
The opinion of the Supreme Court states the facts.
Order entered certifying case to law side of court, opinion by BROOMALL, J. Plaintiff appealed.
Error assigned was order, quoting record.
H. E. Potter, with him John R. K. Scott, William T. Connor and Frank A. Mooreshead, for appellant.
A. H. Wintersteen, of Wintersteen, McCoy Wintersteen and George T. Butler, for appellee.
Appellant filed a bill in equity in the court below alleging that defendant, her father, entered into an oral contract with her to convey all his estate to her at his death, and praying for a decree that the alleged contract be declared valid and subsisting, that any will inconsistent therewith be declared void and of no effect, that defendant be restrained from making any gifts or dissipating his estate in violation of the terms of the contract, and for further appropriate relief. Preliminary objections to the bill were filed by defendant, averring that the bill contained impertinent, irrelevant and scandalous matter, setting up a failure of consideration and pleading the statute of frauds, the statute of limitations, and laches as grounds for dismissing the bill. After argument, the court ruled the bill was without present equity and that plaintiff had an adequate remedy at law, and accordingly entered a decree certifying the case to the law side of the court.
Appellant argues that the lower court erred in holding she has an adequate remedy at law, for the reason that this defense was not pleaded in the preliminary objections to the bill. We need not consider whether a court of equity of its own volition may certify a case to the law side of the court, since it was stated at the time of the argument before us that the case would be considered as if properly amended to raise the question in limine. Our right to order such amendments nunc pro tunc is undoubted: Scranton Coal Co. v. Scranton, 314 Pa. 262.
We are satisfied the court below correctly ruled that plaintiff was in the wrong forum. Equity has no present power to compel defendant to execute a will leaving all his estate to plaintiff, since, under the terms of the alleged contract itself, defendant has his entire lifetime in which to do so. Moreover, as pointed out by the learned judge of the court below, "to grant the prayers of the bill would be to hold defendant to a greater promise than that alleged by plaintiff. The allegation is that he promised to leave her his entire estate at his death. To restrain him from making any gifts, etc., would be to fix the value of the estate as of the present instead of at death."
On the other hand, plaintiff has appropriate and adequate remedies at law. Not only may she maintain an action to recover damages for breach of the alleged contract, if a breach does occur, but ejectment will lie against heirs taking real estate by devise contrary to the agreement, provided plaintiff can surmount the statute of frauds: Taylor v. Mitchell, 87 Pa. 518. Moreover, if it can be shown that defendant has actually executed a will leaving all his estate to others, plaintiff may treat this as an anticipatory breach of the contract, and sue to recover the consideration paid: Moorhead v. Fry, 24 Pa. 37. All of these remedies are, of course, predicated upon plaintiff's showing a valid and enforceable contract, but for the reasons given, that question should be tried at law and not in equity.
The decree is affirmed at appellant's costs.