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Townsend v. Perry

Supreme Court of New York, Appellate Division

July 11, 1911

FRANK B. TOWNSEND, Respondent,
EZEKIEL C. PERRY and Others, Appellants.

APPEAL by the defendants, Ezekiel C. Perry and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 19th day of July, 1910, upon the decision of the court rendered after a trial at the Yates Special Term.


M. A. Leary, for the appellants.

James O. Sebring, for the respondent.


This suit is based upon the claim that the property in question belongs to the plaintiff under a contract made by his mother with Cyrenius C. Townsend and Mary J. Townsend, his wife (the former owners thereof, now deceased), the nature and character of which will be stated presently.

In 1861, when the plaintiff was between three and four years of age, he was taken from the Yates county poor house by Cyrenius C. Townsend and Mary J. Townsend, his wife, to their home, brought up by them and lived with them until he

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married. After his marriage he and his wife resided for several years upon one of the farms in controversy here. The Townsends have died, the wife in February, 1905, and the husband in March, 1905. It is now claimed that within a short time after the plaintiff was taken by the Townsends an agreement was made between them and the plaintiff's mother that the Townsends should take and receive the plaintiff as their child, and that the mother should surrender and give up all right to the child to the Townsends, and upon the death of the Townsends the plaintiff should have all their property, provided they had no children of their own, and if they did have children then that he share equally with them.

The learned trial judge finds that the contract was made as has been stated, and that it was performed by the plaintiff's mother, as appears by the fifth, sixth and seventh findings of fact. By the eighth finding of fact he also finds that on the 24th day of January, 1862, an agreement in writing was made between the Townsends and the mother as follows:

'Agreement made this 24 day of January, 1862, between Cyrenius C. Townsend and Mary J. Townsend, of the Town of Jerusalem, Yates Co., N.Y. , partys of the first part, and Harriett Eaves party of the second part in consideration of one dollar, partys of first part agrees to take Charles Eaves son of Harriett Eaves and give him a good education and at our death he is to have all of our property providing we have no children of our own if we do have children then he shall share equal with them. It is further agreed that Harriett Eaves gives up all claims on her son and will not try to get the boy away.




If the decision rested upon the oral contract alone, it could not well be claimed that the plaintiff had any grounds for maintaining the action. Such claims, based upon oral agreements, have of late years rarely been sustained in this court or by the Court of Appeals. The Court of Appeals in Hamlin v. Stevens (177 N.Y. 39) refused to sustain a claim based upon such an alleged contract, and the rule laid down by Judge

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VANN in that case has, I think, been uniformly adhered to. Chief Judge CULLEN in the recent case of Taylor v. Higgs (202 N.Y. 65), after referring with approval to the doctrine of Hamlin v. Stevens, says: 'In Hamlin v. Stevens (177 N.Y. 39) Judge VANN, speaking for the court and referring to agreements of the character here sought to be enforced, said: 'Contracts of the character in question have become so frequent of recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them, and in enforcing them, when established, by specific performance. Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises. * * * Such contracts should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses.' (p. 47.) In Rosseau v. Rouss (180 N.Y. 116) the same judge, again speaking for this court, said: 'Thus, the evidence relied upon to establish the contract is, first, the testimony of the mother, who tried to swear $100,000 into the pocket of her own child, and, second, the testimony of witnesses who swear to the admissions of a dead man. The former is dangerous; the latter is weak, and neither should be acted upon without great caution. We have repeatedly held that such a contract must not only be certain and definite and founded upon an adequate consideration, but also that it must be established by the clearest and most convincing evidence.' (p. 120.) Tested by these rules it seems to me the plaintiffs did not establish their case.'

But it is urged that there was a written contract here, which has been established by the production of the writing and corroborated by declarations made by the Townsends and surrounding circumstances. I am not convinced, however, that the writing has been established. While the learned trial justice saw and heard the witnesses, and undoubtedly was better able to form a correct opinion as to the credibility of their testimony than we are, I think the undisputed circumstances cast such doubt upon the genuineness of the writing as to leave it unproven; and without it the action must fail.

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The question as to whether this writing was ever made by the Townsends depends almost entirely upon the opinion of witnesses as to whether the signatures to the writing are genuine; and the evidence is very strong that they are not. The plaintiff's mother, as well as the Townsends, has died, and no one is produced who ever saw the writing until after the death of the Townsends. Not even the plaintiff knew about it until, as he claims, he found it among some papers after their death, and after he had received legal advice that he would be unable to establish his claim by an oral contract.

He claims that he found the paper in the possession of a granddaughter of his mother; that there were two wooden boxes, holding a bushel apiece of old papers, and that he found this paper in an envelope with a pension voucher. The granddaughter says she herself had found it in a tin box; that she burned the other papers but kept this, because, as she states, 'Frank Townsend [the plaintiff] will want to know who is the heir of that property.'

The plaintiff undertook to show who drew the paper. A witness was called who, according to his testimony, was then about nine years of age. He claims that he was at the Townsends when the plaintiff was there in 1861, and that there were some papers drawn there about six weeks after the plaintiff came there. He names several friends and neighbors of the Townsends who were there. Bert Cowen, the justice of the peace, and his mother, the witness and his mother and the plaintiff's mother. In response to the question as to whether he knew which person drew the papers, he replied, 'I think the woman did it,' but he does not state which one. He further stated that the paper was read in his hearing, but that he did not remember the substance of it; that after it was read he saw names signed; that his mother and the Townsends sat at a table; that the plaintiff's mother was sitting around there. He further testified that he thought she made her mark to this instrument; but her signature to the paper produced is in excellent handwriting and without any mark.

I need not call attention further to his testimony. It is very evident that his recollection is hazy and his testimony of little importance. It ...

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