Hoyt v. Thomas

SHAW, J.

Plaintiff appeals from a judgment entered in favor of defendants upon an order of court sustaining a general demurrer to the second amended complaint for the specific performance of a contract, without leave to amend.

[15]

The ease stated by the complaint, so far as material, is in substance as follows: Hattie Mclntire died in September, 1917, leaving an estate the value of which, as distributed to defendants as the heirs of deceased under an order of court, was $3,469.12. It is alleged that in March, 1903, a contract was entered into between plaintiff and said Hattie Mclntire, “by the terms and conditions whereof this plaintiff promised and agreed to and with the said Hattie Mclntire that he would render to the said Hattie Mclntire from that time during the remainder of the term of her natural life such care and personal services as she might require of him, and particularly that he would attend to the business affairs of the said Hattie Mclntire both in connection with her real property and otherwise and that he would endeavor to so manage and conduct her affairs in such manner if it were possible that the said Hattie Mclntire would, during the remainder of her lifetime, be assured of and provided with a suitable and proper home and sufficient income to provide for her a suitable and proper living and that whatever sickness, misfortune or losses she might suffer he would render to her such comfort, aid and assistance within his power or ability as she might require or request of him and that during the remainder of the term of her natural life he would and in consideration thereof the said Hattie Mclntire then and there promised and agreed to and with this plaintiff that upon her death all of the property and estate of which she died possessed should be and become the property of this plaintiff and that prior to her death she would execute a last will and testament or such other papers as might be necessary to transfer, set over and secure to this plaintiff such property and estate of which she might die possessed.” That plaintiff, during the lifetime of Hattie Mclntire, fully performed his part of the contract so made; notwithstanding which fact the said Hattie Mclntire did not, as she agreed, execute a will in favor of plaintiff, nor execute any papers transferring to plaintiff the property which she possessed at the time of her death, nor any part thereof, the legal title to all of which was, under said order of distribution, acquired by defendants, who are alleged to hold the property in trust for plaintiff under and by virtue of the terms of said