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Problem 11: Family Succession to Property

  • 1 Lauren Aquilana v. Estate of Judith Hill

    Lauren Aquilana lived with her dear friend Judith Hill for fifty-two years in Hill's house in Poughkeepsie, New York. Despite their long cohabitation, the title to the house remained in Hill's name, and despite knowing she should do so, Hill never wrote a will. After Hill suffered a stroke in 2011, she moved to a continuing care retirement community (CCRC) in Asbury Park, New Jersey. Hill was 81 years old at the time. She used her personal savings to pay for her entrance fee to the facility, but neither she nor Aquilana had sufficient personal funds to purchase a unit in the facility for Aquilana. Approximately $50,000 is left in Hill's mutual fund account.

    Aquilana remained in their New York home and put it on the market. She was 79 years old and had retired at age 72 from her position as a creative writing instructor at a community college in Poughkeepsie. The hope of both Aquilana and Hill was that the sale of their New York house would raise sufficient funds to allow Aquilana to purchase a space at the Asbury Park CCRC and join Hill there. Unfortunately, it was difficult to find a buyer for a house that had not been remodeled or updated in years during the aftermath to the subprime crisis when banks were reluctant to grant mortgages. Worse still, Hill died three months after the house went on the market. Because Hill had chosen the cheapest option for purchasing a place at the CCRC, no refund of money was to be forthcoming.

    In the absence of a will, and because Hill had no surviving relatives, the New Jersey Surrogate Court appointed an executor for Hill's estate on the assumption that Hill's move had changed her domicile to New Jersey. The Surrogate Court applied the New Jersey intestacy statute to Hill's estate; because Hill did not leave a will and had no surviving relatives, all her property (including the house in Poughkeepsie) escheated to the State of New Jersey.

    New Jersey does not recognize common law marriage but does recognize express written contracts between domestic partners. Before 2010, New Jersey also recognized oral agreements as well as agreements implied from a course of action to share property between the two persons in a cohabiting couple. If Aquilana and Hill had been romantic partners who had separated, New Jersey law before 2010 would have provided a remedy either through contract law or property law to divide their property equitably between them. However, they were close friends rather than a couple so New Jersey law would have provided no legal basis for dividing their property if they had separated. Moreover, in 2010, the New Jersey legislature passed a statute prohibiting recognition of "palimony" agreements unless they are in writing. Although the Supreme Court of New Jersey  ruled that the statute applies prospectively only to relationships established after 2010, Maeker v. Ross, 99 A.3d 795 (N.J. 2014), New Jersey law had never recognized a claim for property sharing between friends or persons who were not in a marriage-like relationship. Because Hill wrote neither a will nor a contract, because she has no surviving relatives, and because New Jersey law never recognized a common law right to share property between cohabiting friends, New Jersey law provides that Hill's property escheats to the state. Because Hill's property escheated to the state of New Jersey, the New Jersey Surrogate Court ordered the New Jersey executor to go to the New York Surrogate's Court to have an executor appointed for Hill's New York estate who would be empowered to sell the New York home.

    Meanwhile, Aquilana hired a New York attorney and convinced the New York Surrogate's Court to appoint her as executor of Hill's New York estate. Aquilana tried to get the New York court to rule that Hill was domiciled in New York at the time of her death, but the court ruled to the contrary, agreeing with the New Jersey court that Hill had changed her domicile to New Jersey. The New York Surrogate's Court also decided to stay any rulings on property distribution until the New Jersey courts could determine the disposition of Hill's property and that the New York court would abide by those rulings, whatever they were. Although the New Jersey Surrogate Court had ordered the executor to sell the Poughkeepsie home, the New York Surrogate's Court refused to order Aquilana to comply with that ruling pending appeal of the New Jersey Surrogate Court's ruling.

    Aquilana sued the New Jersey estate of Hill in the New Jersey trial court, arguing that the New Jersey courts should engage in a restrained interpretation of New Jersey law and decline to apply it to determine the distribution of Hill's property on her death. She followed the proper procedures to challenge the ruling of the New Jersey Surrogate Court. She argued that New York law should apply to the distribution of Hill's property on the ground that Hill and Aquilana had lived together in New York for more than fifty years and that, unlike New Jersey law, New York would recognize a quasi-partnership between Hill and Aquilana and treat Aquilana as their heir to Hill's estate.

    Hill challenged the ruling of the New Jersey Surrogate Court by bringing an action in the New Jersey Superior Court Chancery Division. The Chancery Judge reversed the ruling of the Surrogate Court and held that New York law should apply to determine the distribution of Hill's estate. Unlike New Jersey law, New York law would impose a constructive trust on the property of one person for the benefit of another if they live together and either comingle their funds or support each other. Under New York law, proof of an interdependent relationship is sufficient to support creation of a constructive trust to ensure fair distribution of property; no evidence of a contract or reciprocal promises is required. Indeed, in this case, there was no evidence of an agreement, oral or written, between Aquilana and Hill by which they explicitly agreed to share their property with each other or to support each other. However, at trial in the New Jersey Superior Court (Chancery Division), Hill's friends and family had testified that Hill would have wanted Aquilana to get the proceeds of the sale of the Poughkeepsie house since those funds were supposed to enable Aquilana to join Hill in New Jersey. That evidence was uncontested and unrebutted; the trial court ruled that the decedent's wishes had been established by clear and convincing evidence and that this was sufficient to establish a constructive trust and constituted an exception both to the statue of frauds and the statute of wills of the state of New York. While New Jersey strictly enforces its statute of wills and its statute of frauds, New York law recognizes unwritten evidence as sufficient to establish a common law partnership between friends even if they are not a couple or in a marriage-like relationship and will honor such mutual understandings even in probate proceedings to distribute property upon death of one of the parties.

    The Estate of Hill appealed to the New Jersey Superior Court Appellate Division. That court split the difference and applied New Jersey law to Hill's personal property on death but New York law to the real property located in the Poughkeepsie, New York. The Appellate Division cited the traditonal situs rule for real property and distinguished the house from the personal property governed by the law of the decedent's domicile at death. The court-appointed executor for the Estate of Hill appealed to the Supreme Court of New Jersey.

    Aquilana argues that New York law should apply to the entire estate and that both the personal and real property of Hill should be distributed according to the law of New York. That law would give all the property to Aquilana because that is the only result that would respect the wishes of the decedent. Allowing the property to escheat to the state in the face of clear and convincing evidence that the decedent wanted her property to go to Aquilana arguably violates the substantive policy of both New York and New Jersey. In the alternative, Aquilana argues that the situs rule should apply to the real property in New York even if New Jersey law applies to Hill's personal property.

    The Estate of Hill argues, in contrast, that New Jersey law should apply to the entire estate with all the property escheating to the state of New Jersey. The New Jersey executor argues that the Asbury Park CCRC is one of the largest in the country and houses more than 700 residents. Given the increasing popularity of CCRC's, only a strict rule applying domicile law to any person who dies while a resident of New Jersey will protect the New Jersey courts from the entanglements that would ensue because of claims based on unwritten evidence involving parties in other states. That is especially so because New Jersey policy requiring a writing to support a property claim by a domestic partner is codified in a statutory provision that was designed to overturn a contrary prior course case. While that statute does not itself contain a choice of law provision, it arguably applies to the estate of any New Jersey domiciliary.


    1. Does the law of New York or the New Jersey govern the distribution of Hill's personal property?

    2. Does the law of New York or the New Jersey govern the distribution of Hill's  house in Poughkeepsie, New York?

    π = Lauren Aquilana

    ∆ = Estate of Judith Hill

  • 2 New Jersey Statue of Frauds

    New Jersey Statute of Frauds

    N.J. Stat. §25:1-5(h)

    25:1-5. Promises or agreements not binding unless in writing.

    25:1-5. Promises or agreements not binding unless in writing. No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:…

           H. A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.

  • 3 New Jersey Statute of Wills

    New Jersey Statute of Wills

    N.J. Stat. §3B:1-3 & 1-4

    3B:1-3. Devolution of property upon death.

     3B:1-3. Upon the death of an individual, his real and personal property devolves to the persons to whom it is devised by his will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to rights of creditors and to administration.

    3B:1-4. Contractual arrangements relating to death

    A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

     

    3B:1-6. Law governing rights, duties and powers of fiduciaries

    The provisions of this title shall govern the rights, duties and powers of successors and fiduciaries relating to the administration of all estates except that the validity and propriety of all acts done by a fiduciary and all rights established in successors prior to September 1, 1978, shall be determined under the law as then in effect.

  • 4 Maeker v. Ross

    Maeker v. Ross

    1

    99 A.3d 795 (2014)
    219 N.J. 565

    2
    Beverly MAEKER, Plaintiff-Appellant,
    v.
    William S. ROSS, Defendant-Respondent.

    A-1 September Term 2013, 072185

    3

    Supreme Court of New Jersey.

    Argued May 5, 2014.
    Decided September 25, 2014.

    4

    [796] Angelo Sarno argued the cause for appellant (Snyder & Sarno, attorneys; Mr. Sarno, Jill D. Turkish, and Ashley R. Vallillo, Roseland, on the briefs).

    5

    Eric S. Solotoff argued the cause for respondent (Fox Rothschild, attorneys; Mr. Solotoff and Sandra C. Fava, Roseland, on the briefs).

    6

    Richard F. Iglar, Morristown, argued the cause for amicus curiae The New Jersey Chapter of the American Academy of Matrimonial Lawyers (Mr. Iglar, John P. Paone, Woodbridge, and Dale E. Console, Kingston, on the brief).

    7

    Brian M. Schwartz, Livingston, argued the cause for amicus curiae New Jersey State Bar Association (Ralph J. Lamparello, President, attorney, Secaucus; Mr. Lamparello, of counsel; Mr. Schwartz, [797] Brian G. Paul, Lawrenceville, and Elizabeth M. Vinhal, Denville, on the brief).

    8
    Justice ALBIN delivered the opinion of the Court.
    9

    In Kozlowski v. Kozlowski, this Court for the first time recognized the enforceability of a palimony agreement against a person who promised to provide future support to a partner with whom he shared a marital-type relationship. 80 N.J. 378, 384-85, 403 A.2d 902 (1979). A palimony agreement is a contract, and as we explained, palimony agreements are usually oral because "`parties entering this type of relationship usually do not record their understanding in specific legalese.'" In re Estate of Roccamonte, 174 N.J. 381, 389, 808 A.2d 838 (2002) (alterations omitted) (quoting Kozlowski, supra, 80 N.J. at 384, 403 A.2d 902). Accordingly, since 1979, the public has had a right to rely on our jurisprudence that oral palimony agreements would be enforced.

    10

    The Statute of Frauds requires that certain agreements must be reduced to writing to be enforceable. N.J.S.A. 25:1-5. Palimony agreements did not fall within the sweep of the Statute of Frauds until 2010 when the Legislature amended that statute to prohibit oral palimony agreements. N.J.S.A. 25:1-5(h).

    11

    In this case, Beverly Maeker and William Ross, although unmarried to each other, lived together and shared a marital-like relationship from 1999 to 2011. In the course of that relationship, Maeker alleges that she gave up a career and devoted herself to Ross, who promised to support her in the future. In short, Maeker claims that the two entered into a palimony agreement. In 2011, their relationship dissolved, and Maeker filed an action to enforce Ross's promise to provide financial support. Ross argued that the alleged agreement was not reduced to writing and could not be enforced under the 2010 Amendment to the Statute of Frauds.

    12

    The trial court rejected Ross's argument, concluding that the Legislature intended the 2010 Amendment to be prospectively applied. The Appellate Division reversed and dismissed Maeker's complaint, holding that the Legislature intended that any palimony agreement as of 2010 had to be in writing and that oral agreements predating the Amendment were no longer enforceable.

    13

    We disagree with the Appellate Division. We find that the Legislature did not intend the 2010 Amendment to apply retroactively to oral agreements that predated the Amendment. In amending the Statute of Frauds, the Legislature was aware that historically the Statute has been construed — absent a legislative expression to the contrary — not to reach back to rescind preexisting, lawfully enforceable oral agreements. The Legislature has given no indication that it intended to depart from the traditional prospective application of a change to the Statute.

    14

    Accordingly, we reverse the Appellate Division and reinstate Maeker's complaint.

    15
    I.
    16
    A.
    17

    This appeal arises from a motion to dismiss a complaint. In reviewing whether Maeker has stated a legally sufficient cause of action, "we accept as true the facts alleged in the complaint." Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 625, 660 A.2d 505 (1995). From this perspective, we review Maeker's claims.

    18

    In 1998, Maeker and Ross met in Brooklyn, New York, where both lived, and the two began a romantic relationship. The next year, Maeker moved into Ross's home while maintaining ownership of her condominium [798] where her son from a former marriage continued to reside. From the time they began living together until their separation in 2011, Ross financially supported Maeker, paying for all her living expenses, for the mortgage and upkeep of her condominium, and for her son's college education. In return, Maeker "performed all of the duties requested of her, including cooking, cleaning, companionship, homemaker and confidant." When Ross was ill, she cared for him. They traveled together, attended family events together, and moved to Bedminster, New Jersey, where they rented a house together. Ross and Maeker "held themselves out to the world as a family unit."

    19

    During the course of their thirteen-year relationship, Ross repeatedly promised that he would financially support Maeker over the course of her lifetime. In the latter part of 2001, based on those promises, Maeker abandoned her twenty-year career in the architectural glass industry. In December 2010, Ross executed a written power of attorney, authorizing Maeker to manage and conduct all of his financial affairs. That same month, Ross executed a written will, naming Maeker the executor and trustee and leaving sufficient funds "for her comfortable support and maintenance to live in the lifestyle that she and [he] have enjoyed during [their] years together."

    20

    On July 1, 2011, Ross ended their relationship, moving out of their joint residence. In addition to cutting off all ties to Maeker, Ross terminated all financial support to her. Maeker claims that she "devoted a substantial amount of her adult life" to sustaining Ross's emotional and physical needs and advancing his pecuniary interests. She further claims that her efforts "were made entirely [on] her reliance of the representations and promises of [Ross]" to provide her with lifetime financial support.

    21
    B.
    22

    Maeker filed a complaint in the Chancery Division, Family Part, Somerset County, seeking enforcement of the oral palimony agreement. She also asserted a number of other legal and equitable theories of relief, including partial performance as a bar to the Statute of Frauds, unjust enrichment, quantum meruit, quasi-contract, equitable estoppel, and fraud.

    23

    Ross moved to dismiss Maeker's complaint on the ground that it did not state a claim on which relief could be granted, pursuant to Rule 4:6-2(e). Ross claimed that the 2010 Amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), bars enforcement of any oral palimony agreements, even those predating the Amendment.

    24

    The family court denied Ross's motion to dismiss. The court observed that, as a rule, the Statute of Frauds is not retroactively applied to invalidate a contract entered into before its enactment. That approach is taken, the court reasoned, to avoid a conflict with "constitutional protections against impairment of contracts," (citing 73 Am. Jur. 2d Statute of Frauds § 429 (2010)), and therefore a substantive statute will not be given retroactive effect unless the Legislature expressly states otherwise. The court found that the 2010 Amendment did not provide a clear indication that the Legislature intended "to eliminate legitimate palimony claims that may have accrued over the last thirty years." In the absence of that clear indication, the court concluded that the 2010 Amendment should not be construed to invalidate a pre-existing palimony agreement and deprive Maeker of a cause of action. The court permitted Maeker to proceed on all her claims and awarded [799] Maeker pendente lite relief and attorney's fees.

    25

    The Appellate Division granted Ross's motions for leave to appeal and to stay the trial court's decision.

    26
    II.
    27

    The Appellate Division reversed, dismissing Maeker's complaint with prejudice. Maeker v. Ross, 430 N.J.Super. 79, 97, 62 A.3d 310 (App.Div.2013). The appellate panel was satisfied that the words of the 2010 Amendment to the Statute of Frauds clearly and unambiguously directed the enforcement of a palimony agreement only when "the agreement has been reduced to writing and the parties have each had the benefit of independent counsel" — and "irrespective of when an agreement to provide lifetime support may have been entered." Id. at 89, 62 A.3d 310. The panel disagreed with the family court's view that "the cause of action for palimony accrues at the time the agreement is entered," which in Maeker's case was before the Amendment went into effect. Ibid. According to the panel, "plaintiff's cause of action accrued at the time defendant is alleged to have breached the agreement, not at the time the promise of lifetime support was purportedly made." Id. at 90, 62 A.3d 310. By that reasoning, Maeker's cause of action accrued when Ross "`abandoned' her and broke his promise of lifetime support" — a year after passage of the Amendment. Ibid. The panel also rejected the family court's presumption that Maeker relied on the palimony jurisprudence existing before the 2010 Amendment. Id. at 92, 62 A.3d 310.

    28

    The panel's position was that Maeker and Ross had the "timely ability, before their relationship ended, to have come into compliance with the Amendment" by putting the palimony agreement in writing and by securing counsel for that purpose. Id. at 91, 62 A.3d 310. The panel rejected Maeker's argument that Ross's execution of a power of attorney and a will memorialized a written palimony agreement, finding that the documents did not evidence a promise of lifetime support. Id. at 91-92, 62 A.3d 310. The panel also rejected Maeker's equitable claims, considering them "merely different versions of her underlying palimony claim." Id. at 97, 62 A.3d 310. The panel declined to address Maeker's argument, raised for the first time on appeal, that the retroactive application of the Amendment is unconstitutional. Id. at 92, 62 A.3d 310.

    29

    We granted Maeker's petition for certification. Maeker v. Ross, 215 N.J. 485, 73 A.3d 511 (2013). We also granted the motions of the New Jersey Chapter of the American Academy of Matrimonial Lawyers and the New Jersey State Bar Association to participate as amici curiae in the case.

    30
    III.
    31
    A.
    32

    Maeker presented a number of issues in her petition: whether the Appellate Division erred (1) in applying the 2010 Amendment to the Statute of Frauds retroactively; (2) in concluding that the will, standing alone, did not constitute a written palimony agreement consonant with the Statute of Frauds; (3) in not addressing the Amendment's constitutionality; and (4) in barring her equitable claims, including her claim of partial performance. On issues one, two, and four, Maeker essentially urges the Court to reverse for the reasons expressed by the family court. Additionally, Maeker urges the Court to find that the retroactive application of the 2010 Amendment would unconstitutionally impair her preexisting contractual rights under her palimony agreement and, alternatively, would violate notions of fundamental fairness articulated in our case law. Neither [800] of those issues was raised before the family court.

    33
    B.
    34

    Ross advances mostly the points made by the Appellate Division as reasons for rejecting Maeker's arguments. Ross, however, buttresses the Appellate Division's conclusion that the will did not constitute an enforceable written palimony agreement. Ross submits that a will, by its very nature, is not a contract requiring consideration but rather is a revocable instrument and, therefore, it is not legally binding by a testator who changes his mind. Ross also asks this Court to decline to address the constitutional impairment-of-contract argument, because it was not raised before the family court, and to bar Maeker's equitable claims because they are based on the same facts as her palimony claim. More particularly, he argues that the partial-performance claim must be denied because it would nullify the Statute of Frauds.

    35
    C.
    36

    Amicus New Jersey Chapter of the American Academy of Matrimonial Lawyers urges this Court to reverse the Appellate Division. The Academy states that courts generally follow the rule that "favor[s] prospective application of statutes" unless there is a clear legislative expression to the contrary, (quoting Gibbons v. Gibbons, 86 N.J. 515, 522, 432 A.2d 80 (1981)). From that perspective, the Academy contends that the Legislature has given no indication that the 2010 Amendment should be retroactively applied to the palimony agreements of unmarried cohabitants whose relationships predate the new law. To apply the law retroactively, the Academy suggests, would deny support to a party who is abandoned after decades of living with a partner, raising children together, and intertwining their finances and other affairs. The Academy also submits that the Statute of Frauds should not be construed to invalidate equitable claims, including partial performance.

    37
    D.
    38

    Amicus New Jersey State Bar Association also argues that the 2010 Amendment should be applied prospectively because the Legislature did not express an intent for the law to operate retrospectively and because to do otherwise would trench on vested rights or result in manifest injustice. Specifically, the State Bar contends that the retroactive application of the statute would violate the express language of Article IV, Section 7, Paragraph 3 of the New Jersey Constitution, which provides: "The Legislature shall not pass any ... law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made." Additionally, assuming application of the Statute of Frauds, the State Bar maintains that equitable doctrines, such as partial performance and promissory estoppel, should be available as exceptions to prevent inequitable results or injustice.

    39
    IV.
    40
    A.
    41

    The primary issue on appeal is whether the Legislature, in passing the 2010 Amendment to the Statute of Frauds, L. 2009, c. 311 (codified at N.J.S.A. 25:1-5(h)), intended to render unenforceable oral palimony agreements that predated the Amendment.

    42

    Our charge here is to interpret a statute. In performing that task, "[w]e review the law de novo and owe no deference to the interpretative conclusions [801] reached by the trial court and Appellate Division." Aronberg v. Tolbert, 207 N.J. 587, 597, 25 A.3d 1121 (2011) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13, 984 A.2d 872 (2009)). The question is whether the Legislature intended N.J.S.A. 25:1-5(h) to apply to contracts formed before its enactment.

    43

    The goal of all statutory interpretation "is to give effect to the intent of the Legislature." Aronberg, supra, 207 N.J. at 597, 25 A.3d 1121. We first look to the statutory language, which generally is the "best indicator" of the Legislature's intent. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). Only if the language of the statute is shrouded in ambiguity or silence, and yields more than one plausible interpretation, do we turn to extrinsic sources, such as legislative history. Id. at 492-93, 874 A.2d 1039.

    44

    Important to our analysis are two other interpretative guides. The first is that "`the Legislature is presumed to be aware of judicial construction of its enactments.'" Id. at 494, 874 A.2d 1039 (quoting N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n. 6, 814 A.2d 1028 (2002)). The second is that when the Legislature adopts or copies a law from another jurisdiction, we presume that it was aware of the construction given to that law by the courts of the other jurisdiction. See Todd Shipyards Corp. v. Twp. of Weehawken, 45 N.J. 336, 343, 212 A.2d 364 (1965); see also Bollinger v. Wagaraw Bldg. Supply Co., 122 N.J.L. 512, 519, 6 A.2d 396 (E. & A.1939) ("The English Workmen's Compensation act is identical with our own.... The construction given by the court of last resort of that jurisdiction to this statute is helpful, and our legislature, we may assume, had such construction in mind....").

    45

    In light of those principles, we now turn to the statute at issue.

    46
    B.
    47

    In 2010, the Legislature amended the Statute of Frauds, rendering oral palimony agreements unenforceable. N.J.S.A. 25:1-5 provides that

    48

    [n]o action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:

    . . . .

    h. A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.

    49

    The Amendment states that "[t]his act shall take effect immediately." L. 2009, c. 311, § 2. The bill was signed into law on January 18, 2010, and took effect that same day. See L. 2009, c. 311. The Amendment made two significant alterations to the law. It requires that a palimony agreement be in writing and signed and that the parties have "the independent advice of counsel" before making the agreement. N.J.S.A. 25:1-5(h).

    50

    The Amendment represents a sea change in the law. To understand the extent of that change, we next give an overview of the law predating the Amendment.

    51
    C.
    52

    Thirty-five years ago, in Kozlowski, supra, we observed that many couples [802] choose to cohabit and live in marital-type relationships without marrying. 80 N.J. at 386-88, 403 A.2d 902. We recognized that partners in those relationships are entitled to enter into lawful agreements with one another. Id. at 387, 403 A.2d 902. We held that if one party induces the other to enter or remain in the relationship by a promise of support, made either orally or in writing, the agreement — commonly referred to as a palimony agreement — will be enforceable in court. Ibid.; see also Devaney v. L'Esperance, 195 N.J. 247, 258, 949 A.2d 743 (2008) (holding that, even in absence of cohabitation, "promise to support, expressed or implied, coupled with a marital-type relationship" is sufficient for palimony agreement).

    53

    We acknowledged that "[p]arties entering this type of relationship usually do not record their understanding in specific legalese," and therefore a palimony agreement may be express or implied. Kozlowski, supra, 80 N.J. at 384, 403 A.2d 902; see also Roccamonte, supra, 174 N.J. at 389, 808 A.2d 838. As was made clear in Kozlowski, "the right to support ... does not derive from the relationship itself but rather is a right created by contract." Roccamonte, supra, 174 N.J. at 389, 808 A.2d 838. A palimony agreement could be established "not merely by what was said but primarily by the parties' `acts and conduct in the light of ... the surrounding circumstances.'" Ibid. (quoting Kozlowski, supra, 80 N.J. at 384, 403 A.2d 902). Additionally, "a general promise of support for life, broadly expressed, made by one party to the other with some form of consideration given by the other will suffice to form a contract." Id. at 389-90, 808 A.2d 838 (citing Kozlowski, supra, 80 N.J. at 384, 403 A.2d 902).

    54

    Kozlowski and its progeny were the law until January 18, 2010. An indeterminable number of unmarried couples may have entered palimony agreements before that date, having the right to rely on the law that recognized their personal contracts. Whether the Legislature intended to render nugatory those oral palimony agreements formed before January 18, 2010, in large part, depends on the meaning of the words: "This act shall take effect immediately." L. 2009, c. 311, § 2. We must determine whether those words mean that only newly formed palimony agreements will have to comply with the Amendment or that all palimony agreements, whenever formed, must be in writing and the parties to the agreement counseled by attorneys.

    55

    The plain language of the statute does not resolve the issue. Nor does the legislative history to the Amendment, specifically the statements appended to the bill by the Senate and Assembly Judiciary Committees. Those statements make clear that the purpose of the Amendment is to "overturn recent `palimony' decisions by New Jersey courts by requiring that any such contract must be in writing and signed by the person making the promise," Assem. Judiciary Comm. Statement to S. No. 2091, 213th Leg., 2d Sess. 1 (Dec. 3, 2009); S. Judiciary Comm. Statement to S. No. 2091, 213th Leg., 2d Sess. 1 (Feb. 9, 2009), but the statements do not suggest that the Legislature intended to render existing contracts, previously enforceable, null and void.

    56

    The reason for the Legislature's silence may be inferred from its knowledge that courts generally will enforce newly enacted substantive statutes prospectively, unless it clearly expresses a contrary intent. See Gibbons, supra, 86 N.J. at 521-22, 432 A.2d 80. One rationale for the prospective application of substantive statutes is that, although everyone is presumed to know the law, no one is expected to anticipate a law that has yet to be enacted. Ibid. [803] (citing 2 Sutherland on Statutory Construction § 41.02, at 247 (4th ed. 1973)).

    57

    Historically, the Statute of Frauds has been applied prospectively to avoid interfering with vested rights. A review of the development and treatment of the Statute of Frauds will give insight into the Legislature's intent concerning the 2010 Amendment.

    58
    V.
    59

    The Statute of Frauds recognizes that certain agreements may be "susceptible to fraudulent and unreliable methods of proof" and therefore insists that those agreements be reduced to writing and signed. Lahue v. Pio Costa, 263 N.J.Super. 575, 599, 623 A.2d 775 (App.Div.), certif. denied, 134 N.J. 477, 634 A.2d 524 (1993); see Moses v. Moses, 140 N.J. Eq. 575, 584, 53 A.2d 805 (E. & A.1947) (Heher, J.) ("The primary design of ... the Statute of Frauds is to avoid the hazards attending the use of uncertain, unreliable and perjured oral testimony...."). The New Jersey Statute of Frauds is modeled after the English Act for Prevention of Frauds and Perjuryes, 29 Car. 2, c. 3, reprinted in 5 The Statutes of the Realm 839 (1819), which was enacted by Parliament in 1677. N.J. Law Revision Comm'n, Report and Recommendations Relating to Writing Requirements for Real Estate Transactions, Brokerage Agreements, and Suretyship Agreements 1 (1991).

    60

    The original English statute provided, "That from and after [June 24, 1677] noe action shall be brought" to enforce certain agreements unless they are in writing. 29 Car. 2, c. 3, § 4. The King's Bench in Helmore v. Shuter, (1678) 89 Eng. Rep. 764 (K.B.) 765; 2 Show. 16, ruled that the statute should be applied prospectively. The Helmore case involved an attempt to enforce an oral promise in consideration of marriage made prior to enactment of the statute. Ibid. The King's Bench concluded that "the intention of the makers of that statute was only to prevent for the future." Ibid. That court stated that "it would be a great mischief to explain it otherwise, to annul all promises made by parol before that time, upon which men had trusted and depended, reckoning them good and valid in law." Ibid.

    61

    Like its English prototype, the original New Jersey Statute of Frauds provided that "no action shall be brought" on certain types of promises and agreements unless they are in some form of writing. An Act for the Prevention of Frauds and Perjuries § 14 (Nov. 26, 1794), reprinted in Laws of the State of New-Jersey 133, 136 (William Paterson ed., 1800). Shortly after the passage of the original New Jersey Statute of Frauds, the then New Jersey Supreme Court,[1] like the Helmore court, stated that "[a] parol promise, made before the statute of frauds, to be performed afterwards, is not within it, though the statute says, no suit shall be brought, after a certain day, on a parol promise, and the suit was brought after that day." Ford v. Potts, 6 N.J.L. 388, 394 (Sup.Ct. 1797). We are unaware of any New Jersey case that contradicts that interpretation of the Statute of Frauds, and indeed the nationwide approach is consistent with the Helmore decision.

    62

    One well-respected treatise notes that most courts have held that if an oral contract is lawful when made, it is not rendered unenforceable by a later-passed statute requiring the contract to be in writing. 4 Corbin on Contracts § 12. 20 [804] (rev. ed. 1997); see, e.g., Zapuchlak v. Hucal, 82 Wis.2d 184, 262 N.W.2d 514, 517 (1978) ("When a statute of frauds question arises, as here, several years after the agreement in question was made, the statute in effect at the time of the agreement controls."); Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487, 490 (1943) (approving earlier holding that "Statute of Frauds ... had no application to contracts made before its passage"); Ralph v. Cronk, 150 Misc. 69, 268 N.Y.S. 429, 430 (Sup.Ct.) ("It is plain that if the statute is to be construed literally, it, by making the contract void from the time of the enactment of the statute, impairs the obligation of the contract, and it is, therefore, unconstitutional...."), aff'd, 241 A.D. 907, 271 N.Y.S. 1042, aff'd, 266 N.Y. 428, 195 N.E. 139 (1934); Staples v. Hawthorne, 208 Cal. 578, 283 P. 67, 70 (1929) (stating that "[t]he agreement involved in the present action was claimed to have been made ... long prior to the amendments [requiring such agreements to be in writing], and, therefore, its validity is not affected by them"); see also Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 552, 18 L.Ed. 403, 409 (1867) (stating that "[a] Statute of Frauds embracing a pre-existing parol contract not before required to be in writing.... would impair the obligation of the contract," and would therefore be "forbidden").

    63

    According to Corbin, various reasons have been given for not retroactively applying the Statute of Frauds to nullify an earlier-made oral contract, but one clear reason is that rendering a previous valid contract unenforceable "would `impair the obligation' of a contract and run counter to the constitutional provision." 4 Corbin on Contracts, supra, § 12.20 (citing U.S. Const. art. I, § 10).

    64

    We now apply those principles to the case before us.

    65
    VI.
    66
    A.
    67

    N.J.S.A. 25:1-5(h) provides that, effective January 18, 2010, "[n]o action shall be brought" to enforce a palimony agreement unless the agreement is in writing and unless the parties "made" the agreement "with the independent advice of counsel." Nowhere in the text or legislative history of N.J.S.A. 25:1-5(h) has the Legislature given any signal, express or implied, that it intended the new statute to extinguish previously formed lawful oral palimony agreements. The Legislature knows how to write a statute that applies retroactively, as when it amended the New Jersey estate-tax law in July 2002 and explicitly made it retroactive to "`every resident decedent dying after December 31, 2001.'" Oberhand v. Dir., Div. of Taxation, 193 N.J. 558, 565, 940 A.2d 1202 (2008) (quoting N.J.S.A. 54:38-1(a)(2)).

    68

    The long jurisprudential history of the Statute of Frauds evidences the strong inclination of courts not to give retrospective application to enactments that would annul prior legally authorized oral agreements, unless the Legislature expresses a contrary intent. That interpretative approach is partly based on the view that the Legislature, presumably, would not intend to pass a statute that might conflict with the constitutional guarantee that forbids the passing of any "law impairing the obligation of contracts," U.S. Const. art. I, § 10; N.J. Const. art. IV, § 7, ¶ 3. See State v. Johnson, 166 N.J. 523, 540, 766 A.2d 1126 (2001) ("`Unless compelled to do otherwise, courts seek to avoid a statutory interpretation that might give rise to serious constitutional questions.'" (quoting Silverman v. Berkson, 141 N.J. 412, 416, 661 A.2d 1266 (1995))); State v. Profaci, 56 N.J. 346, 349, 266 A.2d 579 (1970) ("[T]he [805] presumption is that the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner.").

    69

    Here, the Legislature did not clearly, or otherwise, express an intent for N.J.S.A. 25:1-5(h) to be applied retroactively. The Legislature, we presume, is aware that our courts will not retroactively apply a new provision of the Statute of Frauds to void a previously formed lawful oral contract in the absence of a clear legislative expression to the contrary. Accordingly, we determine that the Legislature, in passing N.J.S.A. 25:1-5(h), did not intend to retroactively void the indeterminate number of oral palimony agreements that predated its enactment. Couples entering into oral palimony agreements in reliance on Kozlowski did not have to anticipate that the Legislature might, in the indefinite future, impose writing and counsel requirements that would invalidate their agreements.

    70

    Accepting the allegations in Maeker's complaint as true, as we must on a motion to dismiss for failure to state a claim, she has pled a lawful cause of action: that she and Ross were in a marital-type relationship and cohabitating for a number of years, that Ross induced her to remain in that relationship and make sacrifices on a promise of support, and that he breached that agreement.

    71

    The Appellate Division erred in focusing on the date the cause of action accrued, Maeker, supra, 430 N.J.Super. at 90, 62 A.3d 310 instead of the date the oral contract was formed, for retroactivity purposes. The Appellate Division suggested that Maeker and Ross were able to memorialize their oral agreement in accordance with N.J.S.A. 25:1-5(h) between the date of its enactment and the breakup of their relationship. Id. at 91, 62 A.3d 310. That, of course, presupposes that Maeker had the burden to bring her long-existing agreement with Ross into compliance with the new law and that Ross would have cooperated to put the agreement in writing and retained independent lawyers for both of them to accomplish that goal. That reasoning is simply inconsistent with the traditional retroactivity analysis that applies to the Statute of Frauds.

    72
    B.
    73

    In light of our holding that oral palimony agreements predating the 2010 Amendment to the Statute of Frauds are not extinguished by the new law, we choose not to decide whether equitable forms of relief would be available in the absence of such an agreement. We return the parties to the status quo before the Appellate Division reversed the family court's denial of Ross's motion to dismiss, with one exception. We agree with the Appellate Division that Ross's will, as a stand-alone written document, cannot serve as the basis to prove a palimony agreement. This point does not merit much attention. A will, by its very nature, is a revocable instrument, and therefore, without more, cannot be the basis for a binding palimony agreement. See Bendit v. Intarante, 70 N.J.Super. 116, 126, 175 A.2d 222 (App.Div.1961) ("A contract operates immediately to create a property interest[,]... while a will is revocable.... A contract creates a present, enforceable and binding right over which the promisor has no control without the consent of the promisee, while a testamentary disposition operates prospectively." (citations and internal quotation marks omitted)); 79 Am. Jur. 2d Wills § 35 (2002) (distinguishing contracts from wills).

    74

    Last, to be clear, we decide only the issue before us. We do not address any issue concerning the applicability of [806] N.J.S.A. 25:1-5(h) to palimony agreements formed after its enactment.

    75
    VII.
    76

    For the reasons expressed, we reverse the judgment of the Appellate Division and reinstate Maeker's complaint, with the one exception noted. We remand to the family court for proceedings consistent with this opinion.

    77

    For

    78

    reversal/reinstatement/remandment

    79

    Chief Justice RABNER and Justices LaVECCHIA, ALBIN, PATTERSON and FERNANDEZ-VINA and Judges RODRÍGUEZ (temporarily assigned) and CUFF (temporarily assigned) — 7.

    80

    Opposed — None.

    81

    [1] Under the 1776 Constitution, the Supreme Court was an intermediate appellate court. See N.J. Const. of 1776 arts. IX, XII.

  • 5 In re Estate of Flood

    In re Estate of Flood

    1

    9 A.3d 1086 (2010)
    417 N.J. Super. 378

    2
    In the Matter of the Trusts to be Established in the Matter of the ESTATE OF Margaret A. FLOOD, Deceased.

    Docket No. A-1643-09T1.

    3

    Superior Court of New Jersey, Appellate Division.

    Submitted December 8, 2010.
    Decided December 29, 2010.

    4

    [1087] Paula T. Dow, Attorney General, attorney for appellant New Jersey Department of Human Services, Division of Medical Assistance and Health Services and Division of Developmental Disabilities (Melissa H. Raksa, Assistant Attorney General, of counsel; Dianna Rosenheim, Deputy Attorney General, on the brief).

    5

    Law Office of Donald D. Vanarelli, attorneys for respondent John Flood, Administrator of the Estate of Margaret A. Flood (Donald D. Vanarelli, of counsel; Mr. Vanarelli and Whitney W. Bremer, Westfield, on the brief).

    6

    Before Judges CUFF, FISHER and FASCIALE.

    7

    The opinion of the court was delivered by

    8
    FISHER, J.A.D.
    9

    The record in this probate matter demonstrates the decedent had engaged in estate planning but never executed a will by the time of her death. Notwithstanding, the judge utilized the doctrine of probable intent in permitting the establishment and funding of supplemental benefit trusts for decedent's two disabled daughters. Because the doctrine of probable intent—a rule of will construction—cannot be used to create a testamentary disposition when a decedent dies intestate, we reverse.

    10

    The facts are relatively simple and undisputed. Margaret A. Flood was survived by four children. Two of her children are disabled and the beneficiaries of supplemental security income and Medicaid programs; one of those two receives special residential services and other benefits from the Division of Developmental Disabilities (DDD). When judgment was entered, DDD's statutory lien exceeded $1,000,000; the lien has since grown at a rate in excess of $300 per day.

    11

    Margaret first considered estate planning following her husband's death in 2004. Margaret's daughter-in-law, who is an attorney, certified that Margaret was concerned about protecting the inheritances of her disabled daughters from any obligations to reimburse the governmental entities that had provided benefits and services. Although in late 2004 Margaret expressed these concerns and her desire to retain an attorney, it appears she did not consult an attorney until March and April 2008. Thereafter, Margaret's plans were interrupted first by the illness of one of her daughters and then by an injury she sustained in April 2008. Margaret died on May 24, 2008, with an estate valued at $480,000. She never executed a will or testamentary trust.

    12

    The estate's administrator filed this action, seeking the court's authorization to establish and fund the trusts he claims would have been created had Margaret's death not intervened. The matter came before the trial court on the return date of the initial order to show cause; DDD opposed the relief sought.

    13

    The facts, as briefly outlined above, were not disputed. The parties proceeded on the assumption that the decedent possessed the unfulfilled intent to create supplemental benefits trusts for her two disabled daughters. The bone of contention instead turned on whether a court may animate such an intention in the complete absence of a will or testamentary trust. [1088] The trial judge rejected DDD's arguments and held that the doctrine of probable intent could reach that far.

    14

    We conclude that the trial judge's well-intended decision was based on a mistaken understanding of the applicable law. In the absence of a testamentary disposition, Margaret's estate passed by way of the laws of intestacy, and her children's interests vested immediately upon her death. N.J.S.A. 3B:1-3. The doctrine of probable intent—utilized here to do what Margaret failed to do in life—has no application in the absence of a will. Certainly, as the administrator argues, the doctrine of probable intent has evolved; it now represents, as our Supreme Court has held, a "broader and more liberal approach to will construction" than the prior insistence on formalistic results. In re Estate of Burke, 48 N.J. 50, 63, 222 A.2d 273 (1966).

    15

    The doctrine permits the reformation of a will in light of a testator's probable intent by "searching out the probable meaning intended by the words and phrases in the will." Engle v. Siegel, 74 N.J. 287, 291, 377 A.2d 892 (1977). Moreover, extrinsic evidence may be offered not only to show an ambiguity in a will but also, if an ambiguity exists, "to shed light on the testator's actual intent." Wilson v. Flowers, 58 N.J. 250, 263, 277 A.2d 199 (1971). The outer reach of the doctrine's evolution is likely the Court's decision in In re Estate of Branigan, 129 N.J. 324, 330-31, 335, 609 A.2d 431 (1992), where the doctrine was used to reform a will to take advantage of changes in federal estate tax laws that had occurred after execution of the will and after the death of the testator.[1]

    16

    Although there has been a progression from an era that exalted and enforced more formalistic limits, the doctrine of probable intent has never been applied to create a testamentary disposition when the decedent failed to execute a will. It "cannot be used to write a will that the testator did not write." In re Estate of Gabrellian, 372 N.J.Super. 432, 441, 859 A.2d 700 (App.Div.2004), certif. denied, 182 N.J. 430, 866 A.2d 986 (2005); accord Burke, supra, 48 N.J. at 64, 222 A.2d 273 (holding that even when a decedent has executed a will, "a court may not .. . conjure up an interpretation or derive a missing testamentary provision out of the whole cloth"); In re Cook, 44 N.J. 1, 12, 206 A.2d 865 (1965) (Hall, J., dissenting) (recognizing that "[a] wider outlook and reliance on probable intention should never be permitted... to work out a will which a testator did not make")[2]; Chrisman v. Cornell Univ., 1 N.J.Super. 486, 489, 62 A.2d 157 (Ch.Div.1948) (holding that "[t]he function of a court is to construe a will so as to give effect to the intention of the testator, but the court can not make a new will for him").

    17

    [1089] In essence, the doctrine of probable intent is a rule of construction or interpretation and, therefore, presupposes an existing testamentary disposition. See, e.g., In re Estate of Payne, 186 N.J. 324, 335, 895 A.2d 428 (2006) (holding, "[i]n interpreting a will, our aim is to ascertain the intent of the testator"); In re Estate of Dawson, 136 N.J. 1, 9, 641 A.2d 1026 (1994) (instructing that, in considering application of the testator's probable intent, a court must "look first to the testator's will"); Branigan, supra, 129 N.J. at 331, 609 A.2d 431 (viewing the doctrine of probable intent as "[a] leading principle governing will construction"); Cook, supra, 44 N.J. at 6, 206 A.2d 865 (recognizing that the doctrine of probable intent is a principle to be applied "in the interpretation of wills"); Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564-65, 178 A.2d 185 (1962) (defining the doctrine of probable intent as the device by which a court will "ascertain[] the subjective intent of the testator ... [by giving] primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in light of the surrounding facts and circumstances ..."). Where there is no will there can be no will construction.[3]

    18

    The judgment under review—issued to protect the inheritances of two of Margaret's daughters from the immediate reach of reimbursement liens—cannot stand because it is anchored to a rationale at odds with our existing jurisprudence, which precludes application of the doctrine of probable intent to create a testamentary disposition where none existed.[4]

    19

    Reversed.

    20

    [1] In 2004, the Legislature enacted N.J.S.A. 3B:3-33.1, thereby adding weight to the established common law tradition of reforming instruments to conform to the probable intention of testators. Like the jurisprudence developed by our courts, this statute and other related provisions expressly require the existence of a will or other testamentary instrument before permitting utilization of rules of interpretation. See, e.g., N.J.S.A. 3B:3-33.1(a) (declaring that "[t]he intention of a testator as expressed in his will controls the legal effect of his dispositions ..."); N.J.S.A. 3B:3-33.1(b) (declaring that "[t]he intention of a settlor as expressed in a trust, or of an individual as expressed in a governing instrument, controls the legal effect of the dispositions therein ...").

    21

    [2] The Court later recognized that its majority opinion and Justice Hall's dissenting opinion in Cook differed on "the nature and quality of the evidence relied upon to establish the intent found," not on the descriptions of the doctrine of probable intent or its reach. Burke, supra, 48 N.J. at 64 n. 3, 222 A.2d 273.

    22

    [3] Kimley v. Whittaker, 63 N.J. 235, 306 A.2d 443 (1973), upon which the administrator relies, is inapposite. There, the Court interpreted a will in which the testator devised all her property to her husband, made no alternative disposition if he predeceased her—as he did— and "for reasons [she] care[d] not to disclose," made no provision for her daughter or her daughter's children. Id. at 237, 306 A.2d 443. In considering the will's language, the Court concluded that the testator did not intend to incorporate the laws of intestacy if her devise to her husband lapsed. Id. at 240, 306 A.2d 443. The matter at hand does not involve a will disposition that lapsed and created a potential for the application of the intestacy laws but rather the utter absence of a will—a markedly different circumstance.

    23

    [4] We lastly observe that the administrator has relied on an order of another probate judge that purportedly supports his position, and DDD has referred us to another order of another judge that appears to have reached a contrary conclusion. The decisions of trial judges are, of course, not binding on us. We recognize, however, that probate judges develop an expertise in the area that might have been illuminating had either party provided us with copies of those judges' decisions. In the absence of any understanding of the underlying reasoning, the parties' references to these trial court rulings have no value to us.

  • 6 Bernkrant v. Fowler

    Bernkrant v. Fowler

    1

    55 Cal.2d 588 (1961)

    2
    LOUIS BERNKRANT et al., Appellants,
    v.
    DOROTHY BLACK FOWLER, as Executrix, etc., Respondent.

    L. A. No. 25689.

    3

    Supreme Court of California. In Bank.

    Apr. 13, 1961.

    4

    Betty Aronow and George Rudiak for Appellants.

    5

    Egley & Wiener and Paul Egley for Respondent.

    6
    TRAYNOR, J.
    7

    Plaintiffs appeal on the clerk's transcript from a judgment for defendant as executrix of the estate of John Granrud. They contend that the findings of fact do not support the judgment.

    8

    Some time before 1954 plaintiffs purchased the Granrud Garden Apartments in Las Vegas, Nevada. In 1954 the property was encumbered by a first deed of trust given to secure an installment note payable to third parties and a second deed of trust given to secure an installment note payable to Granrud at $200 per month plus interest. Granrud's note and deed of trust provided for subordination to a deed of trust plaintiffs might execute to secure a construction loan. In July 1954, there remained unpaid approximately $11,000 on the note secured by the first deed of trust and approximately $24,000 on the note payable to Granrud. At that time Granrud wished to buy a trailer park and asked plaintiffs [591] to refinance their obligations and pay a substantial part of their indebtedness to him. At a meeting in Las Vegas he stated that if plaintiffs would do so, he would provide by will that any debt that remained on the purchase price at the time of his death would be cancelled and forgiven.plaintiffs then arranged for a new loan of $25,000, the most they could obtain on the property, secured by a new first deed of trust. They used the proceeds to pay the balance of the loan secured by the existing first deed of trust and $13,114.20 of their indebtedness to Granrud. They executed a new note for the balance of $9,227 owing Granrud, payable in installments of $175 per month secured by a new second deed of trust. This deed of trust contained no subordination provision. The $13,114.20 was deposited in Granrud's bank account in Covina, California and subsequently used by him to buy a trailer park.plaintiffs incurred expenses of $800.90 in refinancing their obligations.

    9

    Granrud died testate on March 4, 1956, a resident of Los Angeles County. His will, dated January 23, 1956, was admitted to probate, and defendant was appointed executrix of his estate. His will made no provision for cancelling the balance of $6,425 due on the note at the time of his death.plaintiffs have continued to make regular payments of principal and interest to defendant under protest.

    10

    Plaintiffs brought this action to have the note cancelled and discharged and the property reconveyed to them and to recover the amounts paid defendant after Granrud's death. The trial court concluded that the action was barred by both the Nevada and the California statute of frauds; that to remove the bar of the statutes, the action must be one for quasi-specific performance in which an heir or beneficiary under the will would be an indispensable party; and that defendant was not estopped to rely on the statutes of frauds.

    11

    Probate Code, section 573, provides that "Actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to enforce a lien thereon, or to determine any adverse claim thereon, and all actions founded upon contracts ... may be maintained by and against executors and administrators in all cases in which the cause of action whether arising before or after death is one which would not abate upon the death of their respective testators or intestates. ..." Since the present action is founded on contract and involves an adverse claim to an interest in real property, it was properly brought against [592] the executrix pursuant to this section. Moreover, since plaintiffs do not seek to enforce a trust against any of the beneficiaries of the estate, none of the beneficiaries is an indispensable party. (Cf. Bank of California v. Superior Court, 16 Cal.2d 516, 524 [106 P.2d 879].) Apart from seeking the recovery of sums paid directly to defendant to protect their interests pending the action, plaintiffs seek only a determination that pursuant to their contract with Granrud their liability on the note has been discharged and the security interest in the property thereby released. Under these circumstances defendant represents all those interested in the estate just as she would had she brought an action to enforce the note and been met with the defense that it had been discharged. (McCaughey v. Lyall, 152 Cal. 615, 616-618 [93 P. 681]; Patchett v. Webber, 198 Cal. 440, 448 [245 P. 422]; Estate of Kessler, 32 Cal.2d 367, 369 [196 P.2d 559]; Schroeder v. Wilson, 89 Cal.App.2d 63, 68-69 [200 P.2d 173]; Bank of America v. O'Shields, 128 Cal.App.2d 212, 217 [275 P.2d 153]; Cadigan v. American Trust Co., 131 Cal.App.2d 780, 781 [281 P.2d 332]; Beyl v. Robinson, 179 Cal.App.2d 444, 456 [4 Cal.Rptr. 18].)

    12

    Moreover, since plaintiffs do not seek a money judgment payable out of the assets of the estate but only a determination that their obligations have been discharged, they were not required to file a claim against the estate (see Prob. Code, 707) and were not precluded by subdivision 3 of section 1880 of the Code of Civil Procedure [1] from testifying to events occurring before Granrud's death. (Porter v. Van Denburgh, 15 Cal.2d 173, 176-177 [99 P.2d 265]; Savings Union Bank etc. Co. v. Crowley, 176 Cal. 543, 547 [169 P. 67]; Calmon v. Sarraille, 142 Cal. 638, 642 [76 P. 486]; Alvarez v. Ritter, 67 Cal.App.2d 574, 579- 580 [155 P.2d 83]; Streeter v. Martinelli, 65 Cal.App.2d 65, 71-73 [149 P.2d 725]; Beyl v. Robinson, 179 Cal.App.2d 444, 455-456 [4 Cal. Rptr. 18]; Sperry v. Tammany, 106 Cal.App.2d 694, 698 [235 P.2d 847]; Miller & Lux, Inc. v. Katz, 10 Cal.App. 576, 578 [102 P. 946]; see People v. Olvera, 43 Cal. 492, 494.) To the extent that it indicates that subdivision 3 of section 1880 [593] is applicable in an action such as this one, Norgard v. Estate of Norgard, 54 Cal.App.2d 82 [128 P.2d 566], is inconsistent with the foregoing authorities and is disapproved.

    13

    Subdivision 6 of section 1624 of the Civil Code provides that "An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any provision for any person by will" is "invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent." (See also Code Civ. Proc., 1973, subd. 6.)plaintiffs concede that in the absence of an estoppel, the contract in this case would be invalid under this provision if it is subject thereto. They contend, however, that only the Nevada statute of frauds is applicable and point out that the Nevada statute has no counterpart to subdivision 6. Defendant contends that the California statute of frauds is applicable, and that if it is not, the Nevada statute of frauds covering real property transactions invalidates the contract. [2]

    14

    We have found no Nevada case in point. We believe, however, that Nevada would follow the general rule in other jurisdictions, that an oral agreement providing for the discharge of an obligation to pay money secured by an interest in real property is not within the real property provision of the statute of frauds, on the ground that the termination of the security interest is merely incidental to and follows by operation of law from the discharge of the principal obligation. (Schweider v. Lang, 29 Minn. 254 [13 N.W. 33, 34, 43 Am.Rep. 202]; Givens v. Featherstone, (Tex.Civ.App.) 12 S.W.2d 613, 614]; Riley v. Atherton, 185 Ark. 425 [47 S.W.2d 568]; Brown v. Ruffin, 189 N.C. 262 [126 S.E. 613, 616]; First Nat. Bank v. Gallagher, 119 Minn. 463 [138 N.W. 681, 682, Ann.Cas. 1914B 120]; Runyan v. Mersereau, 11 Johns. [594] (N.Y.) 534, 538; Ackla v. Ackla, 6 Pa. 228, 230; McKenzie v. Stewart, 196 Ala. 241 [72 So. 109, 110]; Mutual Mill Ins. Co. v. Gordon, 12 Ill. 366 [12 N.E. 747, 750]; Benavides v. White, 94 Cal.App.2d 849, 850 [211 P.2d 597]; see also Wright v. Donaubauer, 137 Tex. 473 [154 S.W.2d 637, 639]; Rigney v. Lovejoy, 13 N.H. 247, 253; Dougherty v. Randall, 3 Mich. 581, 586; Flyer v. Sullivan, 284 App.Div. 697 [134 N.Y.S.2d 521, 523]; 2 Corbin on Contracts, pp. 394-397; contra, Parker v. Barker, 43 Mass. (2 Metc.) 423, 431-432; Duff v. United States Trust Co., 327 Mass. 17 [97 N.E.2d 189, 191]; Brooks v. Benham, 70 Conn. 92 [38 A. 908, 910, 39 A. 1112, 66 Am.St.Rep. 87]; Phillips v. Leavitt, 54 Me. 405, 407.)

    15

    We are therefore confronted with a contract that is valid under the law of Nevada but invalid under the California statute of frauds if that statute is applicable. We have no doubt that California's interest in protecting estates being probated here from false claims based on alleged oral contracts to make wills is constitutionally sufficient to justify the Legislature's making our statute of frauds applicable to all such contracts sought to be enforced against such estates. (See Rubin v. Irving Trust Co., 305 N.Y. 288, 298 [113 N.E.2d 424]; Emery v. Burbank, 163 Mass. 326-329 [39 N.E. 1026, 47 Am.St.Rep. 456, 28 L.R.A. 57].) The Legislature, however, is ordinarily concerned with enacting laws to govern purely local transactions, and it has not spelled out the extent to which the statute of frauds is to apply to a contract having substantial contacts with another state. Accordingly, we must determine its scope in the light of applicable principles of the law of conflict of laws. (See People v. One 1953 Ford Victoria, 48 Cal.2d 595, 598-599 [311 P.2d 480]; 2 Corbin on Contracts, p. 67; Currie, Married Women's Contracts, 25 U. Chi. L. Rev. 227, 230-231; Cheatham and Reese, Choice of the Applicable Law, 52 Columb. L. Rev. 959, 961.)

    16

    In the present case plaintiffs were residents of Nevada, the contract was made in Nevada, and plaintiffs performed it there. If Granrud was a resident of Nevada at the time the contract was made, the California statute of frauds, in the absence of a plain legislative direction to the contrary, could not reasonably be interpreted as applying to the contract even though Granrud subsequently moved to California and died here. (See McCabe v. Bagby, 186 F.2d 546, 550.) The basic policy of upholding the expectations of the parties by enforcing contracts valid under the only law apparently applicable would preclude an interpretation of our statute [595] of frauds that would make it apply to and thus invalidate the contract because Granrud moved to California and died here. Such a case would be analogous to People v. One 1953 Ford Victoria, 48 Cal.2d 595 [311 P.2d 480], where we held that a Texas mortgagee of an automobile mortgaged in Texas did not forfeit his interest when the automobile was subsequently used to transport narcotics in California although he had failed to make the character investigation of the mortgagor required by California law. A mortgagee entering into a purely local transaction in another state could not reasonably be expected to take cognizance of the law of all other jurisdictions where the property might possibly be taken, and accordingly, the California statute requiring an investigation to protect his interest could not reasonably be interpreted to apply to such out-of-state mortgagees. Another analogy is found in the holding that the statute of frauds did not apply to contracts to make wills entered into before the statute was enacted (Rogers v. Schlotterback, 167 Cal. 35, 45 [138 P. 728]). Just as parties to local transactions cannot be expected to take cognizance of the law of other jurisdictions, they cannot be expected to anticipate a change in the local statute of frauds. Protection of rights growing out of valid contracts precludes interpreting the general language of the statute of frauds to destroy such rights whether the possible applicability of the statute arises from the movement of one or more of the parties across state lines or subsequent enactment of the statute. (See Currie and Schreter, Unconstitutional Discrimination in the Conflict of Laws:privileges and Immunities, 69 Yale L.J. 1323, 1334.)

    17

    In the present case, however, there is no finding as to where Granrud was domiciled at the time the contract was made. Since he had a bank account in California at that time and died a resident here less than two years later it may be that he was domiciled here when the contract was made. Even if he was, the result should be the same. The contract was made in Nevada and performed by plaintiffs there, and it involved the refinancing of obligations arising from the sale of Nevada land and secured by interests therein. Nevada has a substantial interest in the contract and in protecting the rights of its residents who are parties thereto, and its policy is that the contract is valid and enforcible. California's policy is also to enforce lawful contracts. That policy, however, must be subordinated in the case of any contract that does not meet the requirements of an applicable statute of [596] frauds. In determining whether the contract herein is subject to the California statute of frauds, we must consider both the policy to protect the reasonable expectations of the parties and the policy of the statute of frauds. (See Cheatham and Reese, Choice of the Applicable Law, 52 Columb. L. Rev. 959, 978- 980.) It is true that if Granrud was domiciled here at the time the contract was made, plaintiffs may have been alerted to the possibility that the California statute of frauds might apply. Since California, however, would have no interest in applying its own statute of frauds unless Granrud remained here until his death, plaintiffs were not bound to know that California's statute might ultimately be invoked against them. Unless they could rely on their own law, they would have to look to the laws of all of the jurisdictions to which Granrud might move regardless of where he was domiciled when the contract was made. We conclude, therefore, that the contract herein does not fall within our statute of frauds. (See 2 Corbin on Contracts, p. 76; Lorenzen, The Statute of Frauds and the Conflict of Laws, 32 Yale L.J. 311, 338; Ehrenzweig, The Statute of Frauds in the Conflict of Laws, 59 Columb. L. Rev. 874; Currie and Schreter, Unconstitutional Discrimination in the Conflict of Laws: Equal Protection, 28 U. Chi. L. Rev. 1, 51.) Since there is thus no conflict between the law of California and the law of Nevada, we can give effect to the common policy of both states to enforce lawful contracts and sustain Nevada's interest in protecting its residents and their reasonable expectations growing out of a transaction substantially related to that state without subordinating any legitimate interest of this state.

    18

    The judgment is reversed.

    19

    Gibson, C. J., Schauer, J., McComb, J., Peters, J., White, J., and Dooling, J., concurred.

    20

    [1] Section 1880 provides: "The following persons cannot be witnesses: ...

    21

    "3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person."

    22

    [2] Nevada Revised Statutes, section 111.205, subdivision 1, provides: "No estate or interest in lands, other than for leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared after December 2, 1861, unless by act or operation of law, or by deed or conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized in writing."

    23

    Section 111.210, subdivision 1, provides: "Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made."

  • 7 Rudow v. Fogel

    1
    12 Mass. App. Ct. 430 (1981)
    2
    426 N.E.2d 155
    3
    WILLIAM RUDOW[1]
    vs.
    ALBERT FOGEL.
    4

    Appeals Court of Massachusetts, Essex.

    5
    May 20, 1981.
    6
    September 17, 1981.
    7

    Present: ARMSTRONG, ROSE, & DREBEN, JJ.

    8

    James T. Ronan (Mary P. Harrington with him) for the plaintiff.

    9

    Bertram Glovsky (Jane Kilduff with him) for the defendant.

    10
    DREBEN, J.
    11

    This dispute is the sequel to Rudow v. Fogel, 376 Mass. 587 (1978), and involves a parcel of real estate located in Rockport, Massachusetts, which has been the subject of litigation since the death of the plaintiff's mother in 1963.[2] The principal issue in this appeal is what law should Massachusetts apply in determining whether the defendant, the plaintiff's uncle, holds the property in constructive [431] trust for the plaintiff. The trial judge found that the property was transferred to the defendant in New York on an oral trust at a time when the plaintiff, his mother, and the defendant were all domiciled in New York. We hold that, in the circumstances of this case, Massachusetts should look to New York law.

    12

    We state the relevant facts found by the trial judge. Marvin and Florence Rudow, the parents of the plaintiff William Rudow, purchased the Rockport property in 1958, taking title as tenants by the entirety. They operated a jewelry store in Rockport during the summer but lived in New York City during the rest of the year, where Florence taught school. In 1961, William's parents separated, Florence brought divorce proceedings in New York, and Marvin moved to Rockport. The plaintiff and Florence lived in New York with Florence's mother and with the defendant Albert Fogel, who was Florence's brother.

    13

    Great animosity developed between Marvin and Florence. Nevertheless, in 1962, while Florence was hospitalized for cancer, Marvin conveyed his interest in the Rockport property to Florence. The judge found this was done "out of a sense of remorse over the failure of the marriage and also because he felt sorry for his wife." The conveyance was a gift to Florence without any promise on her part of any kind.

    14

    In May, 1962, Florence made a will which, after several small gifts, left the residue of her property in trust for the plaintiff to be distributed to him at age twenty-five.[3] Thereafter, on July 27, 1962, "anxious to keep the property away from her husband, then and in the future," Florence conveyed the Rockport property to the defendant in New York. The transfer was without consideration. The judge found, and his finding is not clearly erroneous, that at the time of transfer the defendant orally agreed that he would hold the property for the benefit of the plaintiff and "would turn it [432] over to the plaintiff when [he] reached maturity." The judge also found that there was no fraud on the part of the defendant.

    15

    It appears that there is a difference between Massachusetts local law[4] and New York law as to when a confidential (fiduciary) relationship may be found between close family members so as to impose a constructive trust. While recognizing that "respectable authority," including the State of New York,[5] imposes a constructive trust on the principle "that a confidential relationship arises where the conveyance is made between members of a family," Ranicar v. Goodwin, 326 Mass. 710, 713 (1951), the Supreme Judicial Court has ruled, as a matter of Massachusetts local law, that "a confidential relationship does not arise merely because the conveyance was made between members of the family, even if the transferee promised to hold the land in trust." Meskell v. Meskell, 355 Mass. 148, 152 (1969). The court explicitly rejected Restatement (Second) of Trusts § 44, Comment c (1959).[6] Id. This holding was reaffirmed in [433] Kelly v. Kelly, 358 Mass. 154, 156-157 (1970). See also Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412, 443-444 (1980). Compare Samia v. Central Oil Co., 339 Mass. 101, 112 (1959), where additional factors resulted in a fiduciary relationship.

    16

    New York law permits a confidential relationship to be found "in the bond of kinship," and "unjust enrichment under cover of the relation of confidence ... puts the court in motion." Sinclair v. Purdy, 235 N.Y. 245, 253 (1923). See also Farano v. Stephanelli, 7 App. Div.2d 420, 424 (N.Y. 1959); Janke v. Janke, 47 App. Div.2d 445, 448-449 (1975), affirmed, 39 N.Y.2d 780 (1976). See also 1 Scott, Trusts §§ 44.2, 45.2 (3d ed. 1967) and cases cited, and 4 Palmer, Restitution § 19.3(b) (1978), which criticizes the Massachusetts rule.

    17

    The trial judge, applying Massachusetts local law, ruled that there was no constructive trust. Although he refused specific performance, he held that the plaintiff was not without remedy, and entered judgment for the plaintiff in the amount of the fair value of the property less expenses incurred by the defendant. The award to the plaintiff in the amount of the value of the property, less reasonable expenses, is in accord with Massachusetts law. See Cromwell v. Norton, 193 Mass. 291, 292-293 (1906); Kemp v. Kemp, 248 Mass. 354, 357-358 (1924); Collins v. Hillis, 7 Mass. App. Ct. 883 (1979) (action by beneficiary of promise).

    18

    In determining that there was no constructive trust, the judge followed the traditional conflicts rule which looks to the law of the situs for determining all material questions involving legal or beneficial interests in land. See, e.g., Herman v. Edington, 331 Mass. 310, 314 (1954) (whether sufficient declaration of an express trust); Hill v. Peterson, 323 Mass. 384, 386 (1948) (resulting trust).[7] See also 5 Scott, Trusts § 652, at 4123 (3d ed. 1967).

    19

    [434] The Supreme Judicial Court has, however, in a series of cases, rejected the notion that a single test is appropriate for determining which law governs all questions relating to a transaction. The court can be said to have adopted a "more functional approach." See Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. 535, 541 (1979). See also Restatement (Second) of Conflict of Laws § 6(2) (1971).[8]

    20

    Thus, although the traditional tort conflicts rule provides for reference to the law of the place where the tort occurred, in Pevoski v. Pevoski, 371 Mass. 358, 360 (1976), the court recognized that "another jurisdiction may sometimes be more concerned and more involved with certain issues than the State in which the conduct occurred." In that case, which involved a three-car collision in New York State, the Pevoski automobile was registered in Massachusetts (as apparently were the other two) and all three vehicles were driven by Massachusetts residents. The plaintiff, a passenger in the car driven by her husband, brought an action against him for damages, and he defended on the ground of interspousal tort immunity. The court held that Massachusetts law governed that question. After pointing out that "the economic and social impact of this litigation will fall on Massachusetts domiciliaries and a Massachusetts insurer," the court concluded, "New York has an undoubted interest in enforcing its traffic laws and in making its highways safe for travel but it has no legitimate interest in regulating the interspousal relationships of Massachusetts domiciliaries who chance to be injured within its borders." Id.

    21

    [435] Although the court in Choate, Hall & Stewart v. SCA Servs., Inc., had no occasion to look to foreign law, id. at 541, it rejected reference to the law of the place of making of a contract as determinative of all issues involved in the transaction. Id. The court noted, "[T]here is nothing unusual about the laws of different States applying respectively to various phases of a single transaction or incident." Id. at 542.

    22

    While the court has not recently ruled on choice-of-law questions concerning trusts involving land, it has rejected the law of the situs as the only criterion for resolving all questions pertaining to an inter vivos trust. This is true even if the trust expressly directs that the trust shall be governed by and construed in accordance with internal Massachusetts law. In First Natl. Bank v. Shawmut Bank, 378 Mass. 137, 147-148 (1979), a Connecticut settlor created a revocable inter vivos trust in Massachusetts and directed her trustees to pay from the trust all estate and inheritance taxes imposed by reason of her death. Her will, executed while she was a resident of Connecticut but probated in Florida, her domicil at the time of her death, provided that such taxes were to be paid from the residue of her estate. In sending the matter back for more findings, the court found a significant choice of law question despite earlier Massachusetts cases[9] which appeared to have rejected a reference to any law, other than Massachusetts local law, to determine tax apportionment questions for Massachusetts trusts. The court found it unnecessary to decide "at this time whether the suggestion of the Isaacson and Warfield opinions on choice of law would be accepted today." Id. at 145. While recognizing that the law of the situs would often be given recognition in construing the trust instrument and rights and obligations under it, particularly when the trust expressly so directs, the court pointed out, "In particular circumstances, there may be reason to look to the law of [436] that jurisdiction with which the testator-settlor had the greatest contact at significant times (such as her domicil at the time of execution of the trust and will), or perhaps one would look to the law of that jurisdiction which the testatorsettlor had reason to believe would be applicable." Id. at 147.

    23

    We think these recent Massachusetts cases suggest that a trial court should examine the interests of both concerned jurisdictions, here Massachusetts and New York, and the interest of our interstate system before deciding what law is appropriate for Massachusetts to apply. See Restatement (Second) of Conflict of Laws § 6(2) (1971), set forth in note 8, supra. See generally Von Mehren & Trautman, Multistate Problems 193-200, 59-65, 76-79 (1965); Hancock, Conceptual Devices for Avoiding the Land Taboo in Conflict of Laws: The Disadvantages of Disingenuousness, 20 Stan. L. Rev. 1, especially 39 (1967).

    24

    The most important interest of the situs in land transactions is the protection of bona fide purchasers or other persons who rely on the record title. Additionally, it is desirable for purposes of convenience that a purchaser and his title searchers need consult only the law of one jurisdiction. See Restatement (Second) of Conflict of Laws § 223, Comment b (1971); Von Mehren & Trautman, supra at 197; Hancock, supra at 22. Here there are no such persons involved as these proceedings are solely between the defendant, the record holder of the real estate, and the plaintiff. See Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 44 (1980) (registered land). Massachusetts also has an interest in upholding its Statute of Frauds; however, the policy underlying the Statute of Frauds is not here involved to any greater degree than in any other situation involving a constructive trust.

    25

    The concern at stake is not related to the situs of property but is analogous to the one recognized in Pevoski v. Pevoski, 371 Mass. at 360-361. Massachusetts is interested in establishing for its domiciliaries the obligations of family members to one another. New York has a similar interest for its [437] domiciliaries. Here, New York "has the dominant contacts and the superior claim for application of its law." Id. at 360.

    26

    The defendant, his sister and the plaintiff were domiciled in New York at the time the property was transferred to the defendant in that State. It appears that Florence Rudow had an attorney for the transaction. She knew that she was not yet divorced. Both her will and the judge's findings indicate that a primary reason for the transfer was to prevent Marvin from having any interest in the form of marital rights or otherwise in the property. Florence's legitimate expectation, enforceable under New York local law, was that her brother would hold the property for her son.

    27

    In estate or commercial planning areas, the intentions of the settlor-testator or the contracting parties are significant both for local law and choice-of-law decisions. See Restatement (Second) of Conflict of Laws § 6(2) (1971), note 8, supra, which lists as a factor "the protection of justified expectations." See generally Ehrenzweig, The Statute of Frauds in the Conflict of Laws: The Basic Rule of Validation, 59 Colum. L. Rev. 874 (1959). See also Trautman, A Comment on Twerski and Mayer: A Pragmatic Step Towards Consensus as a Basis for Choice-of-law Solutions, 7 Hofstra L. Rev. 830, 838 (1979). Cf. National Shawmut Bank v. Cumming, 325 Mass. 457, 463 (1950). The intention of the testatorsettlor was in the forefront of the choice-of-law discussion in First Natl. Bank v. Shawmut Bank, 378 Mass. at 147, where the court referred to the possibilities of looking to the law of the testator-settlor's domicil at the time of the execution of her will and trust, or "to the law of that jurisdiction which the testator-settlor had reason to believe would be applicable." See also Polson v. Stewart, 167 Mass. 211 (1897), where, speaking through Holmes, J., the court applied North Carolina law to validate a covenant between husband and wife whereby the husband agreed to surrender all of his marital rights in land located in Massachusetts. "If valid by the law of North Carolina there is no reason why the contract should not be enforced here. The general principle is familiar.... [W]e see no ground of policy for an exception." Id. at 215. See also Bernkrant v. Fowler, 55 Cal.2d 588, 595-596 (1961).

    28

    [438] Moreover, the interests of our interstate system as well as the interests of New York and Massachusetts are furthered by applying a single law in determining whether a given situation creates a fiduciary relationship. It is desirable that the same law apply to all property involved in the same transaction wherever situated. "[A]wkward or arbitrary results" can be produced, see Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. at 541, if different laws are applied to different portions of a settlor-testator's property based solely on the fortuitous physical location of his or her assets. In Keith v. Eaton, 58 Kan. 732, 738 (1897), a testator had owned parcels of land located in four different states. The possibility of applying four different rules of construction in determining whether an illegitimate son was included as an heir "furnish[ed] the reason for giving over to the law of [the] testator's domicile the interpretation of his will, unless to do so contravenes the law of the place where the will is probated." See also In re Estate of Clark, 21 N.Y.2d 478, 485 (1968), where the court held that the law of Virginia, the testatorsettlor's domicil, governed the widow's right of election including assets held by a New York trustee. Compare National Shawmut Bank v. Cumming, 325 Mass. at 462-463. See generally 5 Scott, Trusts § 648, at 4097 (3d ed. 1967). See also Restatement (Second) of Conflict of Laws § 223, Comment i (1971), which, as set forth in the margin, suggests that New York law be applied in this case.[10]

    29

    There are no policy considerations against applying that law here. Massachusetts is not opposed to constructive trusts. To the contrary, in Kelly v. Kelly, 358 Mass. at 156, [439] which held Massachusetts does not find a fiduciary relationship merely because the parties are family members, the court recognized the need for imposing constructive trusts to avoid unjust enrichment where legal title is obtained "in violation of a fiduciary relation." Massachusetts would impose no legal impediment even if the defendant were a Massachusetts domiciliary, had he wished to honor his promise, Twomey v. Crowley, 137 Mass. 184, 185 (1884), and, indeed, as the court below correctly ruled, Massachusetts law does impose an obligation on the promisor to return the value of the property. Kemp v. Kemp, 248 Mass. at 357-358.

    30

    Our conclusion that New York law applies was, of course, not anticipated by the trial judge and, as a result, he made no findings as to whether there was an abuse of a confidential relationship under New York law. Our previous discussion has indicated that there are differences between Massachusetts and New York law and that a confidential (fiduciary) relationship will be much more readily found between family members in New York. However, the question is still one for determination by the trier of fact. Sinclair v. Purdy, 235 N.Y. at 252; Farano v. Stephanelli, 7 App. Div.2d at 427; Sharp v. Kosmalski, 40 N.Y.2d 119, 122-123 (1976).

    31

    The other issues raised by the parties are either without merit (especially their claims of inadequate pleading) or not argued within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

    32

    The matter is remanded to the Superior Court for further proceedings consistent with this opinion, including a determination whether there was, in fact, a confidential relationship between Florence Rudow and the defendant. The trial judge may in his discretion decide that question without hearing additional evidence. If he determines that there was a confidential relationship, the judgment is to be vacated and a new judgment is to be entered which shall include an order for the transfer of the property to the plaintiff. If it is determined that there was no confidential relationship,[11] [440] the judgment of May 12, 1980, is to stand, subject to such modification as the trial judge deems appropriate to reflect the reasonable expenses of or charges to the defendant since that date.

    33

    So ordered.

    34

    [1] By Marvin Rudow, his father and next friend.

    35

    [2] A brief explanation of the prior litigation involving the defendant and the plaintiff's father appears in Rudow v. Fogel, 6 Mass. App. Ct. 822 (1978), and in Rudow v. Fogel, 376 Mass. at 588-589. The Supreme Judicial Court agreed with the ruling of this court that the present action was not barred by the principles of former adjudication. Id. at 588.

    36

    [3] The plaintiff was born on March 11, 1956. We note that he has now reached the age of twenty-five.

    37

    [4] As used in this opinion, the terms "local law" or "internal law" refer to the laws of a given jurisdiction exclusive of its rules as to choice of law (conflicts rules). See Restatement (Second) of Conflict of Laws § 4(1) (1971).

    38

    [5] The authority cited by the court in Ranicar v. Goodwin included Sinclair v. Purdy, 235 N.Y. 245, 253 (1923).

    39

    [6] "Comment c. Where transferee is in a confidential relation to transferor. Where the owner of land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, the transferee will be compelled to hold the land upon a constructive trust for the transferor, if the transferee at the time of the transfer was in a confidential relation to the transferor.... Such a confidential relation exists not only where there is a fiduciary relation such as exists between attorney and client, ... and the like, but also where, because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transferor.... It would seem, indeed, that wherever the transferee orally agrees to hold the property transferred to him in trust for the transferor there is a sufficient relation of confidence thereby created to justify imposing a constructive trust upon him if he breaks his promise; but some courts require additional evidence of confidence in the relation between them before they will impose a constructive trust." (Emphasis supplied.)

    40

    [7] We note that in both Herman v. Edington and Hill v. Peterson there was no apparent difference between the internal law of the situs and the law of the other concerned jurisdiction. Hence, there was no serious choice-of-law question before the court.

    41

    [8]Section 6(2) sets forth the choice of law factors which are relevant where there is no statutory directive as to choice of law. These factors include:

    42

    "(a) the needs of the interstate and international systems,

    "(b) the relevant policies of the forum,

    "(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

    "(d) the protection of justified expectations,

    "(e) the basic policies underlying the particular field of law,

    "(f) certainty, predictability and uniformity of result, and

    "(g) ease in the determination and application of the law to be applied."

    43

    [9] Isaacson v. Boston Safe Deposit & Trust Co., 325 Mass. 469 (1950), and Warfield v. Merchants Natl. Bank. 337 Mass. 14 (1958).

    44

    [10] "i. Collateral questions.... [T]he courts of the situs would usually apply their local law to determine whether a conveyance transfers an interest in land and the nature of the interest so transferred. On the other hand, these courts might apply the local law of some other state to determine questions that are incidental or collateral to the conveyance. So ..., for example ... if the basis of A's claim is that B obtained delivery of the deed in breach of a fiduciary obligation owed A, the X court would probably apply the local law of the state having the most significant relationship to the parties with respect to the particular issue in determining whether B did owe A a fiduciary obligation and, if so, whether this obligation was breached."

    45

    [11] Since both New York (see In re Buehler's Estate, 186 Misc. 306 [Sur. Ct. N.Y. County 1945], affirmed, 272 App. Div. 757 [N.Y. 1947]; Sutton v. Sandler, 18 App. Div.2d 362, affirmed, 13 N.Y.2d 1007 [1963]) and Massachusetts appear to give the plaintiff a remedy even in the absence of a constructive trust, we need not consider which law should be applied.

  • 8 Blumenthal v. Brewer

    1

    24 N.E.3d 168 (2014)

    JANE E. BLUMENTHAL, Plaintiff-Appellee,
    v.
    EILEEN M. BREWER, Defendant-Appellant.

    No. 1-13-2250.

    2

    Appellate Court of Illinois, First District, Fifth Division.

    Filed December 19, 2014.

    3

    Angelika Kuehn, of Angelika Kuehn Law Offices, of Oak Park, and Shannon Minter, pro hac vice, Amy Whelan, pro hac vice, and Cathy Sakimura, pro hac vice, all of National Center for Lesbian Rights, of San Francisco, California, for appellant.

    4

    Reuben A. Bernick, of Chicago, for appellee.

    5

    John A. Knight, of Robert Baldwin Foundation of ACLU, Inc., and Camilla B. Taylor, of Lambda Legal Defense & Education Fund, Inc., both of Chicago, and Nancy D. Polikoff, of American University Washington College of Law, of Washington, D.C., for amici curiae.

    6

    JUSTICE McBRIDE delivered the judgment of the court, with opinion

    7

    Justices Gordon and Reyes concurred in the judgment and opinion.

    8
    OPINION
    9
    JUSTICE McBRIDE delivered the judgment of the court, with opinion
    10

    ¶ 1 In 2010, Jane E. Blumenthal filed suit to partition a Chicago home she owned with Eileen M. Brewer, her former domestic partner of 26 years. Brewer counterclaimed for various remedies, including to receive sole title to the property so that the couple's overall assets would be equalized after she stayed at home with the couple's three children while Blumenthal was the family's breadwinner. The trial court dismissed Brewer's counterclaims as factually deficient, relying upon a 1979 decision, Hewitt v. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204 (1979). In Hewitt, the court rejected on public policy grounds a woman's suit to divide assets she accumulated with a man during a 15-year relationship in which they lived together, had three children together, but never married. Brewer appeals, primarily contending that Hewitt has been implicitly overruled by subsequent legislation favorable to same-sex domestic partnerships. American Civil Liberties Union of Illinois and Lambda Legal Defense & Education Fund, Inc., have filed an amici curiae brief in support of Brewer.

    11

    ¶ 2 When a party presents a motion to dismiss a pleading or count as factually deficient, the court determines whether there are actually sufficient allegations that, if proven, could entitle the complainant to relief. In re Marriage of Centioli, 335 Ill. App. 3d 650, 781 N.E.2d 611 (2002); 735 ILCS 5/2-615 (West 2010). A motion to dismiss for factual insufficiency is governed by section 2-615 of the Code of Civil Procedure. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 172 Ill. App. 3d 718, 720, 527 N.E.2d 97, 100 (1988); 735 ILCS 5/2-615 (West 2010). The court must accept all well-pled facts in the complaint as true and draw reasonable inferences from those facts that are favorable to the complainant. HPI Health Care Services, 172 Ill. App. 3d at 720-21, 527 N.E.2d at 100; Centioli, 335 Ill. App. 3d 650, 781 N.E.2d 611. Because the issue presented is a question of law, a reviewing court applies the de novo standard when addressing a dismissal pursuant to section 2-615. Centioli, 335 Ill. App. 3d 650, 781 N.E.2d 611; 735 ILCS 5/2-615 (West 2010).

    12

    ¶ 3 The pleading at issue here relates the following. Brewer and Blumenthal became domestic partners in 1981 or 1982, while they were pursuing graduate studies at the University of Chicago. At no point during their ensuing relationship were same-sex couples legally entitled to marry in Illinois. The pair, however, exchanged rings as symbols of their lifelong commitment to each other and presented themselves to their families and friends as a committed couple.

    13

    ¶ 4 Brewer subsequently attained a law degree from Harvard Law School and Blumenthal attained a medical degree from an undisclosed school.

    14

    ¶ 5 After law school, Brewer gave birth to a child in 1990 and a second child in 1992. Blumenthal gave birth to a child in 1993. The couple gave all three children the same last name.

    15

    ¶ 6 To best care for their children, the couple deliberately allocated their work and family responsibilities. Brewer stayed home for a while as the children's primary caregiver and then pursued employment in the public sector where she had regular work hours and no travel requirements. And, as the stay-at-home parent, Brewer spent the greater amount of time in other domestic tasks, such as supervising home repairs, grocery shopping, and paying the household bills. This arrangement enabled Blumenthal to devote time to her medical career and become the family's primary breadwinner. "As a consequence of the allocation of their respective responsibilities in the family following the birth of their children, Blumenthal came to earn two to three times as much annually as Brewer"; however, the couple comingled their assets throughout their 26-year relationship. One such asset was the real estate that was central to Blumenthal's partition claim and Brewer's counterclaim. The women had jointly purchased a home on Kimbark Avenue in Chicago's Kenwood-Hyde Park neighborhood in 1999, when their children were ages six, seven, and nine. They chose to reside in this area due to the proximity of good schooling that was supportive of the children of same-sex domestic partners. They also jointly purchased investment properties outside of Illinois. In addition, between 2000 and 2008, physician Blumenthal purchased an ownership interest in a six-doctor medical practice. On information and belief, the funds for this investment came from the couple's joint account. Blumenthal continues to practice medicine with that group of physicians. In 2002, attorney Brewer was first elected as a judge in the circuit court of Cook County and she continues in that position. "It was [the couple's] understanding that Brewer would not suffer any financial disadvantage from the way in which [they] allocated their parenting and career responsibilities" and "it was [always] their practice to share equally the same home, food, automobiles, vacations, vacation property, and to the extent they could, savings and investments."

    16

    ¶ 7 The couple also took legal steps because of their lifelong commitment. In 2002, they went through the procedures to cross-adopt their three children, including undergoing a home study. Later that same year, the circuit court of Cook County granted their jointly filed cross-adoption petition. In 2002, the Cook County board of commissioners created the "Domestic Partner Registry" so that same-sex couples in Chicago and suburban Cook County could formally document their partnerships. The local ordinance which created the registry stated in relevant part: "Our society has created diverse living arrangements and an expanded concept of the family unit"; "Many persons today live as families in enduring, committed relationships other than legal marriages"; "The County of Cook has an interest in supporting all caring, committed and responsible family units"; "The County also recognizes that it is in the public interest for persons in committed relationships and who share common households to be able to register those relationships formally"; "Over 5,000 companies, foundations, unions, and nonprofit organizations have domestic partnership benefit programs"; "Cook County would be providing a service to those companies, foundations, unions and non-profits in Cook County by creating an official depository of information with a government agency"; and "A government-issued certificate of registered domestic partnership makes it easier for small businesses to provide benefits to all types of families." Cook County Ordinance No. 03-O-18 (approved July 1, 2003). Blumenthal and Brewer added their names to the county roll in 2003. In registering, they signed an affidavit stating in part,

    17

    "`We, the undersigned, being duly sworn, do declare that on or before January in the year 1981 we agreed to live as domestic partners, and that we have so lived since that time. We further state that we have since that time held ourselves out to be each other's sole domestic partner and that neither of us is married. To fulfill the requirements established by Cook County for benefits coverage we further attest that: *** We are each other's sole domestic partner, responsible for each other's common welfare ***. [Also, we jointly own a residence, and have a joint credit card and joint checking account, and Blumenthal is the primary beneficiary of the will executed by Cook County employee Brewer.]'"[1]

    18

    ¶ 8 In 2005, when Illinois neither provided for same-sex marriage nor recognized out-of-state same-sex marriages, Blumenthal and Brewer took out a marriage license in Massachusetts. They did not, however, marry in that state.

    19

    ¶ 9 In January 2008, when the children were teenagers, Blumenthal unilaterally ended her domestic partnership with Brewer by vacating the family home. The records of this court indicate that in a separate action, the former partners resolved issues of custody, child support, and responsibility for expenses such as the children's college costs. In re Custody of J.M.B., 2013 IL App (1st) 122142-U. By 2011, all three children were emancipated adults.

    20

    ¶ 10 Blumenthal contributed some of the costs of maintaining the residence in 2008, but as of January 2009, Brewer became solely responsible for the property's upkeep and its mortgage payments, real estate taxes, and insurance. Between 2008 and 2013, Brewer spent in excess of $215,000 on the property. She also contributed at least 15 hours per week of her personal time to the property's care. Brewer contributed more money than Blumenthal despite the fact that Blumenthal's net worth, without including inheritances, exceeded and exceeds Brewer's net worth by more than $500,000. Furthermore, due to the disproportionate time and attention that Blumenthal was able to give to her career during the relationship, Blumenthal has not only a valuable medical practice, but also more income and savings than Brewer.

    21

    ¶ 11 Based on these allegations, Brewer seeks the imposition of a constructive trust over the Kimbark Avenue residence to prevent unjust enrichment arising from Blumenthal's greater net worth at the end of the relationship (count I) or, in the alternative, a partition which adjusts for Brewer's sole financial liability for the property since 2009 (count II, count IV) and which adjusts for the value of Brewer's personal hours improving the property since 2008 based on the theory of quantum meruit (count V). Brewer also seeks the imposition of a constructive trust over the annual net earnings or the sale of Blumenthal's share of her medical practice to prevent unjust enrichment or, in the alternative, restitution of the funds that, on information and belief, Blumenthal took from the couple's joint account between 2000 and 2008 to buy into the six-doctor practice (count III).

    22

    ¶ 12 Generally speaking, the legal doctrine of unjust enrichment describes a recovery for the value of a benefit retained to the loss of another when there is no contractual relationship between them but when "on the grounds of fairness and justice, the law compels the performance of a legal and moral duty to pay" for that benefit. 66 Am. Jur. 2d Restitution and Implied Contracts § 3 (2013). Put another way, the doctrine does not require that there be any express promise between the parties. 66 Am. Jur. 2d Restitution and Implied Contracts § 3 (2013). Instead, unjust enrichment implies a contract between the parties so that one party is not allowed to unfairly enrich herself at the expense of the other party. 66 Am. Jur. 2d Restitution and Implied Contracts § 3 (2013). Terminology such as "fairness and justice" may suggest that the doctrine provides an equitable remedy; however, an unjust enrichment claim is an action at law and 2is sometimes known as a contract implied at law, a quasi-contract, restitution, or assumpsit. HPI Health Care Services, 172 Ill. App. 3d at 734, 527 N.E.2d at 109 ("Although there has been considerable confusion on the matter, unjust enrichment is not an equitable action."). In the Illinois courts, in order to state a cause of action for unjust enrichment, one need allege only "that there was an unjust retention of a benefit, including money, by one party to the detriment of another party, against the fundamental principles of justice, equity, and good conscience." HPI Health Care Services, 172 Ill. App. 3d at 735, 527 N.E.2d at 107; Kenneke v. First National Bank of Chicago, 65 Ill. App. 3d 10, 12, 382 N.E.2d 309, 311 (1978). (An alternative branch of unjust enrichment not at issue here requires allegations of unlawful or improper conduct such as fraud, duress, or undue influence. See Gagnon v. Schickel, 2012 IL App (1st) 120645, ¶ 25, 983 N.E.2d 1044.)

    23

    ¶ 13 Also relevant is that restitution is an equitable remedy and the basis of liability is unjust enrichment. Independent Voters of Illinois v. Illinois Commerce Comm'n, 117 Ill. 2d 90, 98, 510 N.E.2d 850, 854 (1987).

    24

    ¶ 14 To recover under the theory of quantum meruit, the plaintiff must prove that: (1) she performed a service to benefit the defendant, (2) she did not perform this service gratuitously, (3) defendant accepted this service, and (4) no contract existed to prescribe payment for this service. Canel & Hale, Ltd. v. Tobin, 304 Ill. App. 3d 906, 710 N.E.2d 861 (1999).

    25

    ¶ 15 When Brewer prepared to file a counterclaim containing these allegations and claims, Blumenthal filed a legal memorandum indicating that Illinois public policy, as stated in Hewitt, does not allow for implied contract claims based on nonmarital cohabitation. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204. Blumenthal further argued that even if Illinois recognized claims between unmarried domestic partners, Brewer's allegations were factually deficient. After further briefing and oral arguments, the trial judge granted Brewer leave to file her proposed amended counterclaim, treated Blumenthal's memo as a section 2-615 motion to dismiss Brewer's pleading (735 ILCS 5/2-615 (West 2010)), and entered the dismissal ruling now on appeal. The judge's written order states, "this Court considers itself compelled to enter this [dismissal] order because of [Hewitt]." There is no indication in the order or the parties' appellate briefs that the trial judge considered Blumenthal's arguments that the pleading was factually deficient. The order, however, includes language allowing for immediate appeal pursuant to Supreme Court Rule 304(a), and after the judge denied Brewer's amended motion for reconsideration of the dismissal, Brewer filed this appeal. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).

    26

    ¶ 16 Brewer now argues that the trial court's reliance on the 35-year-old Hewitt opinion was misplaced because the legislative policies underlying that decision either no longer exist or have been modified substantially. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204. She contends it was public policy to treat unmarried relationships as illicit, but in the decades since Hewitt was decided, the Illinois legislature has repealed the criminal prohibition on nonmarital cohabitation, prohibited differential treatment of marital and nonmarital children, adopted no-fault divorce, established civil unions for both opposite-sex and same-sex partners, and extended other significant protections to nonmarital families. Brewer contends that in light of these profound changes, Hewitt's categorical restriction on claims by unmarried partners has been implicitly overruled. She concludes that Hewitt's holding has no basis in the current law and that its continued application would directly contravene the current policy of this state.

    27

    ¶ 17 Blumenthal responds that Hewitt was not based on a legislative policy to stigmatize or penalize cohabitants for their relationship, but was instead based on a statute that abolished common law marriage in this jurisdiction and is now known as section 214 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/214 (West 2010) ("Common law marriages contracted in this State after June 30, 1905 are invalid.")). Blumenthal contends that regardless of the many legislative changes that Brewer has highlighted and discussed so thoroughly in her appellate brief, the Illinois legislature has never changed its categorical abolition of common law marriage. Blumenthal contends that Hewitt is still good law because it gives effect to Illinois's ongoing public policy that individuals acting privately by themselves cannot create a marriage relationship and that the government must be involved in the creation of that bond. Blumenthal concludes that conferring the benefits of a legal marriage on her relationship with Brewer would essentially be resurrecting common law marriage in Illinois and overruling Hewitt and subsequent cases that note that change, if any, must come from the legislature.

    28

    ¶ 18 We find some merit in both parties' arguments. We agree with Brewer that Hewitt is based on public policy considerations and we agree with Blumenthal that Hewitt gives effect to the legislature's ban on common law marriage. Nevertheless, for the following reasons, we find that the public policy to treat unmarried partnerships as illicit no longer exists, that Brewer's suit is not an attempt to retroactively create a marriage, and that allowing her to proceed with her claims against her former domestic partner does not conflict with this jurisdiction's abolishment of common law marriage.

    29

    ¶ 19 In Hewitt, Victoria Hewitt initially filed a complaint to divorce Robert Hewitt, but then acknowledged that the parties never took out a marriage license or took part in a marriage ceremony. Hewitt, 77 Ill. 2d at 52, 394 N.E.2d at 1205. Her amended complaint or the parties' testimony indicated that after Robert and Victoria conceived a baby while they were college students in 1960, Robert told Victoria they would share their assets and were husband and wife without need of a formal ceremony, they immediately announced to their parents they were married, and for the next 15 years they held themselves out as a married couple. Hewitt, 77 Ill. 2d at 53, 394 N.E.2d at 1205. During those years, they had two more children and coordinated their efforts and assets as if they were married, including investing in the success of the "husband's" dental schooling and practice. Hewitt, 77 Ill. 2d at 53, 394 N.E.2d at 1205. After her complaint for divorce was dismissed, Victoria refiled. Hewitt, 77 Ill. 2d at 52-53, 394 N.E.2d at 1205. She claimed an equal share of the property and profits she accumulated with Robert, based on breach of his express promise that they would share their assets without need of a formal ceremony, implied contract, fraud on his part, and detrimental reliance on her part. Hewitt, 77 Ill. 2d at 53, 394 N.E.2d at 1205. The trial court dismissed Victoria's suit because there was no marriage, but the appellate court reversed, holding that because the relationship was outwardly a conventional marriage, Victoria should be allowed to recover from Robert. Hewitt, 77 Ill. 2d at 54, 394 N.E.2d at 1206. In reinstating the trial judge's dismissal, the Supreme Court of Illinois wrote, "We do not intend to suggest that plaintiff's claims are totally devoid of merit" (Hewitt, 77 Ill. 2d at 66, 394 N.E.2d at 1211), but the court questioned whether allowing recovery to a woman who chose "to enter into what have heretofore been commonly referred to as `illicit' or `meretricious' relationships" would "encourage formation of such relationships and weaken marriage as the foundation of our family-based society" (Hewitt, 77 Ill. 2d at 58, 394 N.E.2d at 1207). The court left the parties where they were because the issues implicated this jurisdiction's public policy:

    30

    "We are aware, of course, of the increasing judicial attention given the individual claims of unmarried cohabitants to jointly accumulated property, and the fact that the majority of courts considering the question have recognized an equitable or contractual basis for implementing the reasonable expectations of the parties unless sexual services were the explicit consideration. [Citation.] *** Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage. ***

    * * *

    *** The issue, realistically, is whether it is appropriate for this court to grant a legal status to a private arrangement substituting for the institution of marriage sanctioned by the State. The question whether change is needed in the law governing the rights of parties in this delicate area of marriage-like relationships involves evaluations of sociological data and alternatives we believe best suited to the superior investigative and fact-finding facilities of the legislative branch in the exercise of its traditional authority to declare public policy in the domestic relations field. [Citations.] That belief is reinforced by the fact that judicial recognition of mutual property rights between unmarried cohabitants would, in our opinion, clearly violate the [statutory ban on common law marriage]." Hewitt, 77 Ill. 2d at 57-61, 394 N.E.2d at 1207-09.

    31

    ¶ 20 Thus, Brewer is correct when she argues that the court believed that allowing Victoria to recover from Robert would have contravened public policy and Blumenthal is correct that the court wanted to steer clear of sanctioning a common law marriage.

    32

    ¶ 21 Hewitt's reasoning was subsequently applied in Ayala, in which the court rejected a woman's claim for an equitable interest in a home in Warrenville, Illinois, which she and her boyfriend had constructed and resided in for 10 years. Ayala v. Fox, 206 Ill. App. 3d 538, 564 N.E.2d 920 (1990). The woman alleged the couple "`lived together as husband and wife'" (Ayala, 206 Ill. App. 3d at 539, 564 N.E.2d at 921), but, citing Hewitt, the court declined to award her an interest in the "`marital' residence" because doing so was contrary to the public policy expressed by the Illinois legislature to strengthen and preserve marriage. Ayala, 206 Ill. App. 3d at 542, 564 N.E.2d at 922 (citing Hewitt, 77 Ill. 2d at 65-66, 394 N.E.2d at 1211). Hewitt's rationale was also pivotal in Costa—a case in which the typical roles were reversed—with a man suing a woman with whom he had lived for 24 years in a "`quasi-marital' relationship, with `all the indicia of a marital type relationship, including love, trust, mutual responsibilities and intimacy.'" Costa v. Oliven, 365 Ill. App. 3d 244, 245, 849 N.E.2d 122, 123 (2006). The woman built a successful business while the man stayed home to raise and home-school their child. Costa, 365 Ill. App. 3d at 245, 849 N.E.2d at 123. He alleged that during their years together, she took sole title to almost every asset and possession that was acquired through the couple's joint efforts and labor. Costa, 365 Ill. App. 3d at 245, 849 N.E.2d at 123. He argued that dismissing his complaint for failure to state a cause led to harsh and unjust results, but the appellate court affirmed the dismissal, stressing that until the legislature made changes, this type of complaint would continue to fail. Costa, 365 Ill. App. 3d at 247-48, 849 N.E.2d at 125.

    33

    ¶ 22 Brewer, however, has identified numerous changes in Illinois law which indicate that public policy has shifted dramatically in the ensuing 35 years and that ongoing application of Hewitt is no longer justified.

    34

    ¶ 23 Hewitt relied on Illinois's former policy of discouraging cohabitation between unmarried parties and disfavoring nonmarital children. The court referred to the "traditional" rule in effect in "all jurisdictions" that enforcing property rights between former cohabitants amounts to enforcing a bargain in which all or part of the consideration has been illicit sexual intercourse. Hewitt, 77 Ill. 2d at 59, 394 N.E.2d at 1208. Since Hewitt was decided, however, Illinois's public policies toward nonmarital relationships and nonmarital children have significantly changed.

    35

    ¶ 24 When Hewitt was decided in 1979, Illinois criminalized cohabitation and the Illinois Supreme Court affirmed a trial judge's decision to transfer custody of three children to their father because their mother was openly living with her boyfriend. See Ill. Rev. Stat. 1961, ch. 38, ¶ 11-8 (a "person who cohabits *** commits fornication if the behavior is open and notorious") (now 720 ILCS 5/11-40 (West 2010)); Jarrett v. Jarrett, 78 Ill. 2d 337, 345, 400 N.E.2d 421, 423 (1979) (holding that a mother's cohabitation with her boyfriend with no plans to marry was an affront to morality, injurious to the moral well-being and development of her children, and sufficient grounds for changing custody). The change in custody was granted despite the fact that Illinois places great emphasis on stability and continuity in custody arrangements. In re Marriage of Wycoff, 266 Ill. App. 3d 408, 410, 639 N.E.2d 897, 900 (1994) (indicating there is a presumption in favor of the existing custodial parent and that a custody arrangement should not be "lightly overturned"). A year prior, a mother who committed the same "moral indiscretion" of living with her boyfriend was allowed to retain custody of her children because she and the boyfriend said they intended to marry as soon as her second divorce became final. Rippon v. Rippon, 64 Ill. App. 3d 465, 381 N.E.2d 70 (1978). This was "a normal life" for the children. Rippon, 64 Ill. App. 3d at 468, 381 N.E.2d at 73.

    36

    ¶ 25 By 1983, however, the Illinois Supreme Court acknowledged that a parent's cohabitation was not inherently harmful to a child and should not be used to deny custody. In re Marriage of Thompson, 96 Ill. 2d 67, 78, 449 N.E.2d 88, 93 (1983) (stating there was no conclusive presumption in Illinois that when a custodial parent cohabitates, the child is harmed). And, in 1990, the Illinois legislature repealed the language that criminalized cohabitation. See Pub. Act 86-490 (eff. Jan. 1, 1990) (deleting "cohabits" from criminal code). After the statute was changed, the primary basis for the result in Hewitt—that agreements between unmarried parties are not enforceable because their relationship is illicit—ceased to exist.

    37

    ¶ 26 Shortly after that, the courts addressed a custody challenge based on same-sex cohabitation. A father disapproved of the mother's openness to their two children about her same-sex relationship and argued that she should have concealed it from them, instead of answering her daughter's questions while her son was present. In re Marriage of R.S., 286 Ill. App. 3d 1046, 1049, 677 N.E.2d 1297, 1299 (1996). The father could not, however, point to any negative consequences (In re Marriage of R.S., 286 Ill. App. 3d at 1053, 677 N.E.2d at 1301) and the evidence showed that the children were thriving in their mother's care (In re Marriage of R.S., 286 Ill. App. 3d at 1055, 677 N.E.2d at 1303). The appellate court found that it was error to change custody on the basis of a parent's conduct which had no impact on her children. In re Marriage of R.S., 286 Ill. App. 3d at 1055, 677 N.E.2d at 1303. The appellate court returned sole custody to her. In re Marriage of R.S., 286 Ill. App. 3d at 1055, 677 N.E.2d at 1303.

    38

    ¶ 27 Hewitt also relied on policies that disfavored nonmarital children, due to concerns about inheritance rights, custody questions, and the "sociological and psychological effects" of children being in "that type of environment." Hewitt, 77 Ill. 2d at 58, 394 N.E.2d at 1208. Illinois has since repealed its policies denying recognition and protection to children born to unmarried parents. For instance, Hewitt's statement that contracts between unmarried couples are presumptively unenforceable and illegal was based in part on, Wallace, an 1882 case in which an agreement between an unmarried father and mother to make their daughter his heir was held void as a verbal agreement in consideration of future illicit cohabitation. Wallace v. Rappleye, 103 Ill. 229, 249 (1882). Today, however, the Illinois Parentage Act of 1984 specifically provides that "[t]he parent and child relationship, including support obligations, extends equally to every child and to every parent, regardless of the marital status of the parents." 750 ILCS 45/3 (West 2012) (created in 1984 by Public Act 83-1372 (eff. July 1, 1985)). There has also been an amendment to the Illinois Probate Act of 1975 extending intestate inheritance rights to children of unmarried parents (see 755 ILCS 5/2-2 (West 2012) (amended in 1978 by Public Act 80-1429, § 1 (eff. Sept. 12, 1978))) and a similar amendment to the Illinois Pension Code indicates that children born to unmarried parents are entitled to the same survivor's benefits as other children (see 40 ILCS 5/1-104.2 (West 2012) (created in 1985 by Public Act 84-1028, § 1 (eff. Nov. 18, 1985))).

    39

    ¶ 28 Hewitt's discussion of the "traditional" rule that courts do not recognize property claims between unmarried couples was based in part on section 589 of the first version of the Restatement of Contracts. Hewitt, 77 Ill. 2d at 58-59, 394 N.E.2d at 1207-08 (quoting Restatement of Contracts § 589 (1932)). In 1981, the Restatement of Contracts was updated for the first time in 50 years. The current version of the legal treatise deleted section 589 and in doing so ceased to define all bargains between people in intimate relationships as illegal contracts. Restatement (Second) of Contracts (1981).

    40

    ¶ 29 Hewitt was also premised on a section of Corbin on Contracts which has been abandoned. Hewitt, 77 Ill. 2d at 59, 394 N.E.2d at 1208 (citing 6A Arthur L. Corbin, Contracts § 1476 (1962)). That section, entitled "Bargains in Furtherance of Immorality," gave the example of lending money or supplying goods to a brothel, which is hardly the type of conduct that Brewer alleged in her claims against Blumenthal. 6A Arthur L. Corbin, Contracts § 1476, 623 (1962).

    41

    ¶ 30 Furthermore, the current version of Corbin on Contracts recognizes that a cohabitating couple is a family and remarks, "The courts' treatment of contracts entered into by cohabitating parties evolved in the last part of the twentieth century and is clear evidence of how the courts' view of what might be against public policy varies with changes in society's views." 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 205 (Joseph M. Perillo ed., rev. ed. 2003). The author of the treatise explains: "It is no coincidence that courts have become more receptive to enforcing contracts between cohabitating parties in an age in which a significant number of male and female couples as well as same gender couples cohabit. The shift in judicial treatment, while significant in effect, is subtle in terms of analytical differences." 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 205 (Joseph M. Perillo ed., rev. ed. 2003). Courts reasoned that they were furthering the public policies of (1) protecting and encouraging marriage and (2) discouraging any exchange of sexual activity for value. 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 207 (Joseph M. Perillo ed., rev. ed. 2003). Those public policies are still in effect, but United States courts no longer perceive a conflict between furthering those policies and enforcing agreements between former cohabitants. United States courts are increasingly inclined to enforce agreements between former cohabitants. 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 207-08 (Joseph M. Perillo ed., rev. ed. 2003). Corbin on Contracts identifies the California Supreme Court's opinion in Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), as the "case that seems to have turned the tide of judicial treatment." 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 213 (Joseph M. Perillo ed., rev. ed. 2003).

    42

    ¶ 31 In Marvin, the parties cohabited for seven years and she sought, by way of a contract action, to enforce his oral promise that they would share earnings and property for life. The court stated that this type of agreement "even if expressly made in contemplation of a common living arrangement, is invalid only if sexual acts form an inseparable part of the consideration for the agreement." Marvin, 557 P.2d at 114. Instead, "any [s]everable portion of the contract supported by independent consideration will still be enforced." Marvin, 557 P.2d at 114. In other words, in reversing a judgment on the pleadings in his favor, the court concluded that nonmarital cohabitants should be treated "as any other persons," and that contracts between them are valid and enforceable so long as they are not solely and exclusively based on sexual services, i.e., prostitution. Marvin, 557 P.2d at 116. The court emphasized that the institution of marriage is important and worthy of protection, but, nonetheless, Marvin "disconnected the link prior courts had perceived between cohabitation agreements and a public policy against sexual relations for value, stating that to `equate the nonmarital relationship of today to [prostitution] ... is to do violence to an accepted and totally different practice.'" 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 213-14 (Joseph M. Perillo ed., rev. ed. 2003) (quoting Marvin, 557 P.2d at 122). Thus, Marvin established the limited principle that cohabitation in itself is not illicit or meretricious and that the "judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed." Marvin, 557 P.2d at 122. Therefore, according to Corbin on Contracts, the majority of "modern" courts now enforce claims between former cohabitants. 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 217 (Joseph M. Perillo ed., rev. ed. 2003).

    43

    "Whereas cases decided [prior to] Marvin may have presumed that the sexual relationship was the substance of the agreement, cases after Marvin seem to presume that the relationship is not the substance of the agreement. These cases are not concerned that the agreement exists in the context of a sexual relationship, but rather are concerned only if the contract's `primary' reason is sexual relations for value." 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 219 (Joseph M. Perillo ed., rev. ed. 2003).

    44

    ¶ 32 It is also worth noting that Hewitt may have had unintended consequences. The court acknowledged its intention to enforce legislative policies that intentionally penalized unmarried couples and their children as a means of discouraging cohabitation and encouraging marriage. Hewitt, 77 Ill. 2d at 58, 394 N.E.2d at 1207 (expressing concern that allowing unmarried partners to adjudicate mutual property disputes would "encourage formation of such relationships and weaken marriage as the foundation of our family-based society," and stating that "[o]f substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage"). The ruling, however, may have the contrary effect—refusing to hear claims between unmarried cohabitants creates an incentive for some to not marry. A cohabitant who by happenstance or design takes possession or title to jointly acquired assets is able to retain them without consequence when their "financially vulnerable" counterpart is turned away by the courts. Candace Saari Kovacic-Fleischer, Cohabitation and the Restatement (Third) of Restitution and Unjust Enrichment, 68 Wash. & Lee L. Rev. 1407, 1424 (2011) (pointing out that denying remedies because there has been unmarried cohabitation punishes only one of the two cohabitants and enriches the other). "Such an unequal outcome itself might weaken rather than strengthen the institution of marriage because it creates an incentive for the more financially savvy partner to opt out of marriage." Candace Saari Kovacic-Fleischer, Cohabitation and the Restatement (Third) of Restitution and Unjust Enrichment, 68 Wash. & Lee L. Rev. 1407, 1424 (2011).

    45

    "[T]his court and the courts of other jurisdictions have, in effect, sometimes said, `We will wash our hands of such disputes. The parties should and must be left to their own devices, just where they find themselves.' *** [S]uch pronouncements seem overly fastidious and a bit fatuous. They are unrealistic and, among other things, ignore the fact that an unannounced (but nevertheless effective and binding) rule of law is inherent in any such terminal statements by a court of law. The unannounced but inherent rule is simply that the party who has title, or in some instances who is in possession, will enjoy the rights of ownership of the property concerned. The rule often operates to the great advantage of the cunning and the shrewd, who wind up with possession of the property, or title to it in their names, at the end of a so[-]called meretricious relationship. So, although the courts proclaim that they will have nothing to do with such matters, the proclamation in itself establishes, as to the parties involved, an effective and binding rule of law which tends to operate purely by accident or perhaps by reason of the cunning, anticipatory designs of just one of the parties." West v. Knowles, 311 P.2d 689, 692-93 (Wash. 1957) (Finley, J., specially concurring).

    46

    ¶ 33 Also essential to Hewitt's holding was the court's conclusion that the legislature's then-recent decision to "retain[] fault grounds for dissolution of marriage" reflected a public policy to "prevent[] the marriage relation from becoming in effect a private contract terminable at will." Hewitt, 77 Ill. 2d at 63-64, 394 N.E.2d at 1210. The court construed this as "another indication that public policy disfavors private contractual alternatives to marriage." Hewitt, 77 Ill. 2d at 64, 394 N.E.2d at 1210. The court remarked that California's ruling in Marvin was "facilitated" in part by California's no-fault divorce law. Hewitt, 77 Ill. 2d at 61, 394 N.E.2d at 1209. At the time, Illinois was one of only three states retaining fault grounds for the dissolution of marriage. Hewitt, 77 Ill. 2d at 63, 394 N.E.2d at 1210. Five years later, however, the Illinois legislature adopted no-fault divorce, allowing either spouse to terminate a marriage due to "irreconcilable differences." 750 ILCS 5/401(a)(2) (West 2010) (created by Public Act 83-954 (eff. July 1, 1984)). As the court recognized in Karbin, the legislature's adoption of no-fault divorce was a significant change in Illinois public policy and gave individuals the freedom and dignity to choose whether to end their marriages, instead of restricting divorce only to situations where "the court would assign blame or fault to a specific spouse." Karbin v. Karbin, 2012 IL 112815, ¶ 38, 977 N.E.2d 154 (holding that common law preventing plenary guardian from bringing divorce action on behalf of mentally disabled ward had been abrogated by subsequent legislation and rulings). Furthermore, although Illinois has a long history of enforcing premarital agreements (see, e.g., Seuss v. Schukat, 358 Ill. 27, 33-34 (1934) (enforcing premarital agreement executed in 1912 providing for wife to retain her real estate despite her impending marriage)), the legislature's codification of the Uniform Premarital Agreement Act in 1990 is a contemporary indication that the Illinois legislature sees no conflict between recognizing private contractual agreements and furthering the state's interest in supporting and strengthening marriage. See 750 ILCS 10/1 et seq. (West 2010); In re Marriage of Barnes, 324 Ill. App. 3d 514, 517, 755 N.E.2d 522, 525 (2001) (indicating that historically, premarital agreements that limited spousal maintenance or distributed property upon divorce were invalidated on public policy grounds because they were said to be conducive to divorce, but it is now "clear that there is no longer any general public policy opposed to agreements contemplating divorce"). In short, the enactment of statutes providing for no-fault divorce and the enforcement of prenuptial agreements have resolved Hewitt's concern that recognizing property rights between unmarried cohabitants would somehow contravene the public policy of strengthening and preserving the institution of marriage.

    47

    ¶ 34 We have also considered that the Illinois legislature enacted the Illinois Religious Freedom Protection and Civil Union Act, which provides for unmarried couples to enter into Illinois civil unions and receive all the rights and burdens available to married couples in this jurisdiction. 750 ILCS 75/1 et seq. (West 2010). In addition, same-sex couples are now able to marry in Illinois as of June 1, 2014. Pub. Act 98-597, § 1 (eff. June 1, 2014) (adding 750 ILCS 80/1 et seq.). The express purpose of the new Religious Freedom and Marriage Fairness Act is "to provide same-sex and different-sex couples and their children equal access to the status, benefits, protections, rights, and responsibilities of civil marriage." Pub. Act 98-597, § 1 (eff. June 1, 2014) (adding 750 ILCS 80/10). Illinois also now recognizes the rights of unmarried couples (and individuals) to adopt children. 750 ILCS 50/2 (West 2010). And, many of Illinois's public and private employers are treating cohabitating domestic partners as family members and extend insurance benefits to both partners. See Proposed Resolution Amendment to the Cook County Employee Domestic Partnership Benefits Resolution, Report of the Committee on Human Relations, Board of Commissioners of Cook County, June 24, 2008 (stating "many private companies, including approximately 500 Fortune 1000 companies, and many units of local government, as well as numerous colleges and universities, provide health insurance and other benefits to [their] Employees for their domestic partners"). Also, since Hewitt was decided, the courts have held that unmarried private sexual relationships, whether they be opposite-sex or same-sex relationships, are a form of intimate conduct that are protected by the federal constitution. Lawrence v. Texas, 539 U.S. 558 (2003) (holding that regardless of whether the participants are married, a private homosexual relationship is a form of intimate human conduct that is protected as a liberty interest against unreasonable public interference); Christensen v. County of Boone, Illinois, 483 F.3d 454 (7th Cir. 2007) (holding that an unmarried heterosexual couple in a long-term relationship was entitled to the same constitutional protection as the homosexual couple in Lawrence); Roberts v. United States Jaycees, 468 U.S. 609 (1984) (analyzing the right of individuals to engage in intimate associations, the first type of association being for the purpose of engaging in expression protected by the first amendment, and the second type being certain intimate human relationships which enable persons to independently define their identity, an ability that is central to liberty); Lehr v. Robertson, 463 U.S. 248, 258 (1983) ("the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection"). In other words, Illinois now respects and supports the relationships that Hewitt labeled as illicit or immoral.

    48

    ¶ 35 We acknowledge Hewitt's statement that it is the legislature's role to declare public policy in the domestic relations field. Hewitt, 77 Ill. 2d at 61, 394 N.E.2d at 1209. After having reviewed the legislation that was enacted during the years that Brewer and Blumenthal were together, buying a house, having children, dividing up their domestic responsibilities and pursuing their legal and medical careers, we conclude that although Brewer and Blumenthal were not legally entitled to marry in this jurisdiction, the legislature no longer disfavors their 26-year cohabitation or Brewer's claims against Blumenthal. Furthermore, Brewer did not allege an agreement with Blumenthal based on illicit consideration of sex, which was the primary historical rationale for rejecting cohabitation agreements. Instead, Brewer, who never had the option of marrying Blumenthal in Illinois, alleged that the couple intentionally comingled and shared their assets based on a mutual commitment and expectation of a lifelong relationship, that they divided their domestic and work responsibilities to best provide for the three children they had together, and that neither partner intended for their decisions and family roles to leave Brewer at a financial disadvantage later in life.

    49

    ¶ 36 The important changes in Illinois law are consistent with changes in other jurisdictions. Based on its survey of modern authority, in 2011, the Restatement (Third) of Restitution and Unjust Enrichment added a new section that specifically allows former cohabitants to bring claims against each other to "prevent unjust enrichment upon the dissolution of the relationship." Restatement (Third) of Restitution and Unjust Enrichment § 28 (2011). That new section provides:

    50

    "If two persons have formerly lived together in a relationship resembling marriage, and if one of them owns a specific asset to which the other has made substantial, uncompensated contributions in the form of property or services, the person making such contributions has a claim in restitution against the owner as necessary to prevent unjust enrichment upon the dissolution of the relationship." Restatement (Third) of Restitution and Unjust Enrichment § 28 (2011).

    51

    ¶ 37 Brewer points out that today, nearly every state permits unmarried partners to bring common law claims to resolve their property disputes, even though these same jurisdictions do not permit common law marriage. See, e.g., Wood v. Collins, 812 P.2d 951 (Alaska 1991); Cook v. Cook, 691 P.2d 664 (Ariz. 1984); Bramlett v. Selman, 597 S.W.2d 80 (Ark. 1980); Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Boland v. Catalano, 521 A.2d 142 (Conn. 1987); Mason v. Rostad, 476 A.2d 662 (D.C. 1984); Poe v. Estate of Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Simmons v. Samulewicz, 304 P.3d 648 (Haw. Ct. App. 2013); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980); Akers v. Stamper, 410 S.W.2d 710 (Ky. Ct. App. 1967); Donovan v. Scuderi, 443 A.2d 121 (Md. Ct. Spec. App. 1982).[2] Accordingly, we see no conflict between our conclusions about Brewer's claims against her former domestic partner and Illinois's ban on common law marriage.

    52

    ¶ 38 Blumenthal has contended that Brewer is attempting to retroactively redefine what the parties' relationship was in order to claim the benefits of a legal marriage, much like the petitioner did in In re Estate of Hall, 302 Ill. App. 3d 829, 707 N.E.2d 201 (1998). We disagree. In that probate case, the petitioner, who was never married to her same-sex life partner, sought to be recognized as the "surviving spouse" within the meaning of a section of the Probate Act that entitles surviving spouses to a share of the decedent's estate. Estate of Hall, 302 Ill. App. 3d at 832, 707 N.E.2d at 203 (quoting 755 ILCS 5/2-1(a) (West 1996)). Brewer, however, is not bringing a statutory claim or asking the court to give her a new legal status or descriptive title. Brewer wants only to bring common law claims that are available to other people. We find that Brewer has the right to do so and that the trial court's dismissal of her claims was in error.

    53

    ¶ 39 In light of this conclusion, we do not need to reach appellant Brewer's alternative contentions that preventing unmarried domestic partners from pursuing common law claims available to all other persons, solely because they had or have an intimate relationship, violates the Illinois and federal constitutional guarantees of due process and equal protection of the laws. See U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, §§ 2, 12.

    54

    ¶ 40 Finally, Blumenthal contends that even absent Hewitt, Brewer's counterclaims do not factually state the elements necessary for any claims of implied contractual relief. Blumenthal made this argument in the trial court, but the judge did not resolve it. This was error. Accordingly, we vacate the dismissal that was based on Hewitt and remand with directions to consider the parties' remaining arguments. We have not considered those arguments and have no opinion about them.

    55

    ¶ 41 Vacated and remanded with directions.

    56

    [1] After the Illinois legislature provided for civil unions, the county's domestic partners registry was phased out. The local ordinance accomplishing that change states:

    57

    "Phasing out of domestic partnerships.

    (a) In light of the enactment of Public Act 96-1513, the Illinois Religious Freedom Protection and Civil Union Act, effective June 1, 2011, notwithstanding any other provision of this Ordinance, or other law, no new domestic partnerships shall be registered after May 31, 2011.

    (b) The issuance of a Civil Union license to joint applicants who are registered as domestic partners to one another shall terminate their domestic partnership when the certificate of Civil Union is returned to the County Clerk pursuant to section 40 of the Illinois Religious Freedom Protection and Civil Union Act. No additional filing pursuant to section 42-75 of this Ordinance shall be required to effect the termination of the domestic partnership between them." Cook County Ordinance No. 11-O-34, § 42-79 (approved Mar. 15, 2011).

    58

    [2] Common law marriage in the United States still occurs only in the District of Columbia and 10 states: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, and Texas. See National Conference of State Legislatures, Common Law Marriage by State, http://www.ncsl.org/research/human-services/common-law-marriage.aspx (last visited Dec. 16, 2014).

  • 9 Collins v. Guggenheim

    1

    417 Mass. 615 (1994)
    631 N.E.2d 1016

    2
    CHARLES D. COLLINS
    vs.
    BETHANY GUGGENHEIM.
    3

    Supreme Judicial Court of Massachusetts, Middlesex.

    March 10, 1994.
    April 28, 1994.

    4

    Present: LIACOS, C.J., ABRAMS, NOLAN, O'CONNOR, & GREANEY, JJ.

    5

    Alan S. Geismer, Jr., for the plaintiff.

    6

    Stephen M.A. Woodworth (Peter E. Heppner with him) for the defendant.

    7
    NOLAN, J.
    8

    From findings of fact (derived largely from a stipulation of facts) made by the trial judge, we learn that the plaintiff (Collins) and defendant (Guggenheim) began to cohabit in 1977 in Belmont, though they never were married to each other. Guggenheim had been married earlier and divorced and had two daughters from that marriage.

    9

    In 1979, they decided to move to a farm in Templeton, which Guggenheim had received in 1976 as part of her divorce settlement. They planned to restore and develop this [616] sixty-eight acre farm which at that time had a fair market value of $10,670. The Eighteenth Century house (c. 1740) was quite primitive with no indoor plumbing, no central heating and no insulation.

    10

    In 1979, Collins and Guggenheim received a bank mortgage loan of $68,000 and an unsecured loan of $4,000 for renovation of the farm. Collins and Guggenheim became jointly liable for the loans and jointly paid principal and interest as well as real estate taxes and insurance. They moved to the farm permanently in August of 1979 with Guggenheim's children. They maintained a joint checking account from which they paid all the expenses of the farm. Each maintained a separate and individual checking account from which funds were transferred to the joint account.

    11

    With the proceeds from the loans, the parties also built a second house connected to the farm house and a barn. Just prior to opening the joint account, the parties purchased a tractor and accessories for $3,000, of which Guggenheim contributed $900 and Collins contributed $2100. Collins also paid from his own funds for certain improvements and equipment to the extent of $8000 which are still at the farm in Guggenheim's possession. They jointly developed part of the farm (approximately four acres) into a "pick-your-own" raspberry patch, which they operated at no profit for several years.

    12

    Their decisions concerning the farm, its financing and operation were jointly made "in an atmosphere of mutual trust." However, at no time was there any agreement, promise, or contract to transfer title to the farm to their joint names.

    13

    In 1985, tensions between the parties began to arise. As a result, Collins left the farm in 1985 and did not return to live there until the spring of 1986. While away from the farm, Collins continued to make his monthly contributions to the joint account. An attempt to reconcile their personal difficulties failed and they mutually agreed to separate when Collins left the farm in December, 1986. Thereafter, he made no further contributions to the joint account. Guggenheim has [617] since that time paid all the expenses of the farm. Total contributions to the farm between June, 1979, and December, 1986, by Collins were $55,100, and by Guggenheim $44,570.

    14

    Collins brought a complaint against Guggenheim in September, 1989, seeking, among things, a declaration that Guggenheim was a constructive trustee of the farm, and an order compelling Guggenheim to convey title to him and to her as tenants in common. In the alternative, Collins seeks an amount equal to his equitable interest in the farm and an accounting of all monies received by Guggenheim from the farm since 1986.[1]

    15

    The trial judge dismissed the complaint, ruling that there was no constructive trust, no fiduciary relationship between the parties and that Collins' payments "were not conditioned upon any agreement to give him an interest in the real estate or to share with him any increase in the value of the property." Collins appealed. We took the case from the Appeals Court on our own motion. See G.L.c. 211A, § 10(A). We affirm the order of dismissal.

    16

    Collins' argument is two-pronged. First, he argues that we should adopt the rule in Oregon, though he concedes that his equitable claim is not recognized in Massachusetts. Collins proposes that we treat his relationship with Guggenheim as if they had been married. In Shuraleff v. Donnelly, 108 Or. App. 707 (1991), the Oregon Court of Appeals held that an equitable distribution of property was in order after a fourteen-year period of cohabitation which included a business relationship in the development of a farm.

    17

    Cohabitation in Massachusetts does not create the relationship of husband and wife in the absence of a formal solemnization of marriage. Davis v. Misiano, 373 Mass. 261, 262 (1977). We have not permitted the incidents of the marital relationship to attach to an arrangement of cohabitation [618] without marriage. See Feliciano v. Rosemar Silver Co., 401 Mass. 141, 142-143 (1987). We have never recognized common law marriage. However, quite apart from this longstanding rule of nonrecognition of marital rights in cohabitation, Collins fails to make out a case for equitable relief.

    18

    Collins' second prong is a constructive trust. Absent fraud, breach of a fiduciary duty or other misconduct, we shall not impose a constructive trust. Barry v. Covich, 332 Mass. 338, 342 (1955). The judge found that there was no fraud, breach of fiduciary duty, or other misconduct.

    19

    In short, there is no claim cognizable under equity which supports Collins' position. Accordingly, the order of dismissal is affirmed.

    20

    So ordered.

    21

    [1] It appears that the plaintiff might continue to be liable under the joint mortgage note though the note was a ten-year note dated 1979 and hence it may be paid. He did not seek relief from this obligation in his complaint, nor does he argue for such relief on appeal. Therefore, we do not address the question.

  • 10 Williams v. Mason

    1

    556 So.2d 1045 (1990)

    2
    Joe Ann WILLIAMS, Administratrix of Estate of Roosevelt Adams, Deceased
    v.
    Frances MASON.

    No. 07-58847.

    3

    Supreme Court of Mississippi.

    February 7, 1990.

    4

    [1047] Tyree Irving, Walls & Irving, Greenwood, for appellant.

    5

    Kinney M. Swain, Greenville, for appellee.

    6

    Before HAWKINS, P.J., and ROBERTSON and PITTMAN, JJ.

    7
    ROBERTSON, Justice, for the Court:
    8
    I.
    9

    In 1962, Roosevelt Adams promised Frances Mason that, if she would live in his home and do his bidding, at his death she would take all of his property. Not a word of this was in writing. In fact, Mason moved into Adams' home and did for well over twenty years as she had agreed. Adams died intestate, and our question is whether, by reason of the agreement or otherwise, Mason holds any enforceable rights against his estate, the principal asset of which is some twenty acres of farm land in Washington County, all of which were acquired during the period of the parties cohabitation.

    10

    The Chancery Court held the agreement enforceable and ordered Adams' administratrix to deliver the property to Mason. In this the Court erred and we must reverse. Because Mason holds rights under other law, we remand for further proceedings.

    11
    II.
    12

    Roosevelt Adams was born on November 24, 1912. He married Della Adams and of that union a son, Roosevelt Adams, Jr., was born in December, 1931. Della Adams is long since deceased.

    13

    Adams married Audrey Mae Adams in 1942, but of that union no children were born. At some time thereafter, Adams and Audrey Mae separated and she has lived in Chicago since that time, although the parties have never obtained a divorce.

    14

    In 1949, Roosevelt, Jr., then eighteen years of age, left home and never saw his father again.

    15

    Frances Mason was born on September 19, 1940. In 1962, under the circumstances described above, Mason moved onto the Adams farm in Washington County, Mississippi, and into Adams' home. At the time Mason was twenty-one years old, while Adams was fifty-two. Mason continues to live on "the place".

    16

    Roosevelt Adams never promised to marry Frances Mason, a fact not explained, nor is any reason given why Adams failed to obtain a divorce from his estranged wife in Chicago.

    17

    The record is less than clear how much land Adams owned in 1962. It does appear that in 1966 Adams acquired certain interests in the west half of the southwest quarter of the northeast quarter of Section 19, Township 18, North, Range 6 West, Washington County, Mississippi, from Jasper Adams. Also, in 1966, Audrey Mae Adams transferred all of her rights in Adams' property to him.

    18

    On February 4, 1986, Roosevelt Adams died. On September 5, 1986, Joe Ann Williams[1] filed in the Chancery Court of Washington County, Mississippi, a petition for letters of administration upon the Estate of Roosevelt Adams, deceased. Williams alleged that Adams had died intestate and was survived by Roosevelt Adams, Jr. and Audrey Mae Adams as his sole heirs-at-law. Letters of administration were granted to Williams and notice to creditors was published first on September 11, 1986.

    19

    On November 20, 1986, Frances Mason answered the petition and by counter-claim set up her agreement with Adams and claimed his estate. The case went to trial as a contest between Mason and Adams' heirs-at-law. On October 7, 1987, the [1048] Court made the following express findings of fact:

    20

    That Frances Mason and Roosevelt Adams entered into an oral agreement wherein Frances Mason agreed to take care of Roosevelt Adams until his death, and in consideration for said Agreement, Roosevelt Adams would leave Frances Mason all of his property at his death, and thereafter, Frances Mason lived with him until his death and that during his lifetime, Roosevelt Adams never made a will, and no proof was shown to the contrary in this proceeding and no specific mention of the word "will" was made.

    That on March 30, 1981, Roosevelt Adams conveyed the store and residence house where the parties, Roosevelt Adams and Frances Mason, lived to Roosevelt Adams and Frances Mason, as joint tenants with survivorship rights and not as tenants in common, and, prior to his death, established a bank account with the Bank of Hollandale in Greenville, Mississippi, as joint tenants with the right of survivorship corroborating that it was Roosevelt Adams' intention to place all property in Frances Mason at his death.

    That a clear, definite and certain agreement existed between Roosevelt Adams and Frances Mason that at his death, Frances Mason would have all of his property. The services that Frances Mason provided Roosevelt Adams during his life, were unique, necessary services and, as a result of that agreement, Frances Mason made substantial changes in her lifestyle.

    That Frances Mason rendered good and valuable services in connection with the agreement between Frances Mason and Roosevelt Adams, and that she cannot be restored to her original status, that Roosevelt Adams accepted these services and these services were rendered to Roosevelt Adams in good faith; that Frances Mason lost over 25 years of her life while providing for Roosevelt Adams and that Frances Mason was the only person present and able to take care of Roosevelt Adams, and therefore, that Frances Mason executed performance of the agreement between Frances Mason and Roosevelt Adams as to Roosevelt Adams' estate and that said contract is enforceable as to Roosevelt Adams' estate.

    21

    Following these findings, the Court ordered Joe Ann Williams, Administratrix, to deliver all property of the Estate of Roosevelt Adams to Frances Mason, less and except all properly registered and probated claims and expenses of administration, fees and costs.

    22

    From this judgment, the heirs-at-law appeal.

    23
    III.
    24

    A contract to devise or bequeath property by will is enforceable in this state. Trotter v. Trotter, 490 So.2d 827, 830 (Miss. 1986); Estate of McKellar v. Brown, 404 So.2d 550, 552 (Miss. 1981). As with other facilities our law affords persons for achieving their wishes, the contract to devise is attended by certain formalities which, if not observed, may result in the contract being legally unenforceable. One of the most important of these formalities is that the contract must be in writing, a function of our statute of frauds. Miss. Code Ann. § 15-3-1 (1972); Estate of McKellar v. Brown, 404 So.2d at 553; Collins' Estate v. Dunn, 233 Miss. 636, 644-45, 103 So.2d 425, 430 (1958); Stephens v. Duckworth, 188 Miss. 626, 634, 196 So. 219, 221 (1940). Though a party may satisfy the court of the existence of an unwritten agreement to devise, the statute precludes specific performance as a remedy our courts may decree. Liddell v. Jones, 482 So.2d 1131, 1132 (Miss. 1986); Collins' Estate v. Dunn, 233 Miss. at 644-45, 103 So.2d at 430; Ellis v. Berry, 145 Miss. 652, 110 So. 211, 213 (1926). This is so even though the promisee has done all he was expected to do under the agreement. Wells v. Brooks, 199 Miss. 327, 332, 24 So.2d 533, 534 (1946). Holmes put the point well a century ago in Bourke v. Callahan, 160 Mass. 195, 35 N.E. 460 (1893):

    25

    We are aware that by our construction of Pub.Sts. C. 141, § 1, the statute of frauds may be made an instrument of [1049] fraud. But this is always true, whenever the law prescribes a form for an obligation. The very meaning of such a requirement is that a man relies at his peril on what purports to be such an obligation without that form.

    26

    Bourke, 160 Mass. at 197, 35 N.E. at 461.

    27

    The oft discussed case of Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946) is not to the contrary, for in Johnston the testator had executed a will conforming to his oral agreement and the only question was whether he had the power to revoke that will. In this circumstance, the will was a writing signed by the party to be charged, thus satisfying the statute's evidentiary policy.

    28

    When these principles are applied to the facts before us, but one result may follow. Mason's agreement with Adams is formally deficient and is without power to confer upon her an enforceable right to Adams' property. The Chancery Court erred when it held to the contrary. We reverse.

    29
    IV.
    30
    A.
    31

    Notwithstanding these well settled principles, experience has taught that gross unfairness may result where one acts in good faith and lives up to an oral agreement to provide services for another under circumstances such as today's. Our law has seen in such situations a potential for unjust enrichment, if not fraud. See Estate of McKellar v. Brown, 404 So.2d at 553. In recognition of these practical realities, the positive law of this state directs that a person, who provides services to another in good faith and in consequence of an oral agreement to devise property in exchange for the services, is not without enforceable rights. Trotter v. Trotter, 490 So.2d at 830; Voss v. Stewart, 420 So.2d 761, 764-65 (Miss. 1982). These rights arise not out of the agreement but the conduct of the parties. Johnston v. Tomme, 199 Miss. at 345; 24 So.2d at 731. The promisee activates the rights the law affords by performing the services in good faith reliance on the promise. Voss v. Stewart, 420 So.2d at 764-65.

    32

    When the parties have so acted with respect one to the other, that is, when one has provided services for the other in reasonable reliance upon a promise to give consideration therefor, our cases are legion that, upon the death of the promisor, the promisee may recover of and from the estate on a quantum meruit basis. Trotter v. Trotter, 490 So.2d at 830-31; Liddell v. Jones, 482 So.2d at 1132; Collins' Estate v. Dunn, 233 Miss. at 645, 103 So.2d at 430; In re Estate of Whittington, 217 Miss. 457, 463, 64 So.2d 580, 582 (1953); Wells v. Brooks, 199 Miss. at 335-36, 24 So.2d at 536; Stephens v. Duckworth, 188 Miss. at 634, 196 So. at 221; Hickman v. Slough, 187 Miss. 525, 530, 193 So. 443, 444-45 (1940); First National Bank v. Owen, 177 Miss. 339, 347, 171 So. 4, 6 (1936); Ellis v. Berry, 145 Miss. 652, 110 So. 211, 215 (1926). In such cases the amount of recovery is limited to the monetary equivalent of the reasonable value of the services rendered to the decedent for which payment has not been received. Liddell v. Jones, 482 So.2d at 1133; Collins' Estate v. Dunn, 233 Miss. at 644-45, 103 So.2d at 430. Said sum becomes a charge against the assets of the estate.

    33

    Our law recognizes an additional basis upon which — assuming proper proof — a person such as Mason may recover. Where parties live together without benefit of marriage and where, through their joint efforts, accumulate real property or personal property, or both, a party having no legal title nevertheless acquires rights to an equitable share enforceable at law. Pickens v. Pickens, 490 So.2d 872, 875-76 (Miss. 1986); Taylor v. Taylor, 317 So.2d 422, 423 (Miss. 1975); Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624, 629 (1951).

    34
    B.
    35

    The Chancery Court held itself precluded from considering anything beyond Mason's claim for specific performance of the oral contract to devise. The Court expressly [1050] declined to consider a quantum meruit remedy for Mason. The Court recited that it took this view because Mason had not presented her claim for services in the form of a probated claim. This wooden reading of our probate procedure ignores the substantive realities of Mason's procedural course and is plainly erroneous. See Rule 28(a)(3), Miss.Sup.Ct. Rules.

    36

    On November 20, 1986, well within the ninety day period allowed for creditors to present claims, see Miss. Code Ann. § 91-7-151 (Supp. 1989), Mason filed her counterclaim. That counterclaim is given by Mason under oath and sets forth in full and in detail the basis of Mason's claims. True, the counterclaim was not in the magic form we once thought required by statute. Miss. Code Ann. § 91-7-149 (1972). No matter. We have long accepted that substantial compliance with our statute on the probate of claims is all that is required. Estate of Wilson v. National Bank of Commerce, 364 So.2d 1117, 1121 (Miss. 1978); Ethridge v. Estate of Paul, 196 So.2d 530, 532 (Miss. 1967); Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 72, 160 So.2d 673, 678 (1964).

    37

    The principle is elaborated in Central Optical where the Court recognized that

    38

    presentation of a claim against an estate is in many respects similar to the filing of a suit against a defendant.

    39

    249 Miss. at 72, 160 So.2d at 678. The Court there suggested adequate a claim which

    40

    gave notice that it existed against the estate, for payment of which the creditor looked to the estate .. . and gave such information concerning its nature and amount as would enable the representative of the estate to act intelligently either in providing for its payment or in rejecting it, ... .

    41

    249 Miss. at 72, 160 So.2d at 678. Central Optical continued that the claim would be held procedurally adequate where it has been presented "in substantial compliance with the foregoing requirements." 249 Miss. at 72, 160 So.2d at 678. Estate of Wilson is to like effect. 364 So.2d at 1120-21; see also Weems, Wills and Administrations of Estates in Mississippi, 48 (1988).

    42

    In analogous cases we have provided similarly sensible construction of other once thought rigorous formalities of estate matters. See, e.g., Perkins v. Thompson, 551 So.2d 204 (Miss. 1989) (eschewing the formality of requiring filing a formal adversarial claim of heirship because the party asserting the claim was the administratrix herself and in her petition for administration had claimed to be the sole and only heir at law); Leflore By Primer v. Coleman, 521 So.2d 863 (Miss. 1988) (illegitimate children of decedent not barred for failure to give notice within ninety days of publication of notice to creditors where petition specifically named the same children as the natural children of the deceased).

    43

    With the limited exception of the label on her pleading, Mason did all that our probate claim statute requires. She set forth the nature of her claim and summarized its factual basis. She complied with the important verification requirement of Section 91-7-149 and filed her counterclaim on the seventieth day following first publication of notice to creditors — well within the ninety day limitations period of Section 91-7-151. We are confident that, had Mason's counterclaim been labeled probate claim and otherwise been verbatim identical, no one would question that Mason had done all that was expected of her under our statutes respecting the registry and probate of claims. See Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 72, 160 So.2d 673, 678 (1964); Estate of Wilson v. National Bank of Commerce, 364 So.2d 1117, 1121 (Miss. 1978). We hold Mason's pleadings adequate that she may pursue the remedies of quantum meruit or equitable division.[2]

    44
    [1051] C.
    45

    The Chancery Court held the contract enforceable but granted a remedy of specific performance. We hold, instead, that Mason's remedies, if any, were quantum meruit recovery or equitable division. The case thus approaches the principle that, where the court below has reached the right result for the wrong reason, we will not intervene on appeal. Accredited Surety & Casualty Co., Inc. v. Atkinson, 535 So.2d 56 (Miss. 1988); Morco Industries, Inc. v. City of Long Beach, Mississippi, 530 So.2d 141 (Miss. 1988); Board of Trustees of Monroe County Board of Education v. Rye, 521 So.2d 900 (Miss. 1988). The parties have litigated, and the Chancery Court has decided, matters requisite to the remedies legally available to Mason, and there is no reason those matters ought be retried.

    46

    The course of proceedings below, coupled with the findings of fact made by the Chancery Court, are such that we hold that Frances Mason has established her agreement with Adams and that she has indeed performed valuable services in good faith and in reliance on Adams' promise. Mason is entitled to recover of and from Adams' estate the reasonable value of the services so rendered.

    47

    In so holding, we well realize that we hold enforceable rights predicated upon the conduct of the parties but unattended by any writing. Although neither the statute of frauds nor the statute of wills per se preclude quantum meruit recovery in such circumstances, we are not unaware that the policy considerations supporting the existence and enforcement of those statutes may be present nevertheless. Because the decedent is not available to provide his version of the matter, courts must view with a touch of skepticism claims for services rendered asserted only at death. We have in the past suggested that the party alleging such an agreement must prove its existence by something more than the ordinary preponderance of the evidence. In Kalavros v. Deposit Guaranty Bank & Trust Co., 248 Miss. 107, 114, 158 So.2d 740, 743 (1963), we said such an agreement must be proved by "clear, definite and certain evidence." See also Trotter v. Trotter, 490 So.2d at 830; Voss v. Stewart, 420 So.2d at 764. In Wells v. Brooks, 199 Miss. 327, 335, 24 So.2d 533, 536 (1946), we employed a more familiar criteria: "clear and convincing evidence." In First National Bank v. Owen, 177 Miss. 339, 344, 171 So. 4, 5 (1936), we said the proof must be "clear and reasonably positive." The Chancery Court no doubt had these views in mind when it

    48

    found from the evidence by clear and convincing proof to this Court that a clear, definite, certain and adequate agreement existed, that Mr. Adams intended having all of his property transferred to Frances Mason in consideration of the services which she was performing.

    49

    We find that the Chancery Court was mindful of the heightened proof requirements as it proceeded to evaluate the evidence before it.

    50

    Our scope of review of findings on the matter of whether an agreement for services exists is subject to the familiar manifest error/substantial evidence principles. Matter of Estate of Ford, 552 So.2d 1065, 1067-68 (Miss. 1989); Lowrey v. Will of Smith, 543 So.2d 1155, 1163 (Miss. 1989); Walters v. Patterson, 531 So.2d 581, 583-84 (Miss. 1988); Blissard v. White, 515 So.2d 1196, 1199-1200 (Miss. 1987). In this view we have affirmed findings that such an agreement exists, First National Bank v. Owen, 177 Miss. at 344-47, 171 So. at 5-6, and, as well, findings that there was no such agreement for services, Liddell v. Jones, 482 So.2d at 1133-34; but see Hickman v. Slough, 187 Miss. 525, 528-32, 193 So. 443, 444-46 (1940) (reversing a chancery court's finding of no contract and holding that the evidence did establish a contract).

    51

    On these familiar principles, we decline to disturb the Chancery Court's findings of fact. We remand for such proceedings, including amendment of pleadings, as may be necessary and appropriate that Frances Mason may establish the amount in which her claim against the Estate of Roosevelt [1052] Adams must be allowed, and/or assert a claim for equitable division of jointly acquired assets.

    52

    REVERSED AND REMANDED.

    53

    ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, SULLIVAN, ANDERSON, PITTMAN and BLASS, JJ., concur.

    54

    [1] Joe Ann Williams is the niece of Roosevelt Adams and appears to have no personal interest in his estate.

    55

    [2] Stephens v. Duckworth, 188 Miss. 626, 635, 196 So. 219, 221 (1940) suggests that a quantum meruit claim is "a liability in the strictest sense ... and not a claim within the meaning of our statutes upon probated claims." We regard it the better view, however, that such claims be probated in substantial compliance with the statutory procedure therefor.

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