Winpield v. Bowen

Full title: WINPIELD v. BOWEN et al.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Dec 18, 1903

65 N.J. Eq. 626 (Ch. Div. 1903)

65 N.J. Eq. 626

Opinion

12-18-1903

WINPIELD v. BOWEN et al.

Chauncey G. Parker, for complainant. Adrian Riker and L. M. Southworth, for defendants.

STEVENSON, V. C.

Suit by Minnie Winfield against Bridget M. Bowen, individually and as administratrix of Simon Cosgrove, deceased, and others. Decree for complainant.

Chauncey G. Parker, for complainant.

Adrian Riker and L. M. Southworth, for defendants.

STEVENSON, V. C. The complainant files her bill against the administratrix and heirs of Simon Cosgrove, deceased, to recover compensation for services rendered and board furnished to him during his lifetime, by the specific performance of an agreement to devise a house and lot in Newark, or, in case compensation cannot be so secured, then by a decree for the value of the services and board in money. The defendants deny that deceased made any contract, and deny that the complainant furnished anything of value to the deceased for which she is entitled to compensation.

Simon Cosgrove died in January, 1899. His exact age was not proved, but was stated to be about 57 years, although there are indications that he was somewhat older. He was a friend, and probably nearly a contemporary, of the complainant's father, one Sofield, who was a pilot in New York Harbor, living at Elizabethport, N. J. Cosgrove was the captain of a tugboat, and appears to have been a frequent visitor in the Sofield family, at Elizabethport, which included the complainant. The complainant, then a young woman, was a school-teacher. She is evidently a woman of intelligence and fair education. Capt. Cosgrove, although probably efficient as a tugboat captain, was an illiterate man, as is shown by the numerous specimens of his handwriting. He was manifestly incapable of keeping an even fairly legible and correct set of books. His business required that he should do this thing to a very considerable extent. During the whole period with which we have to deal he had no interest in the tugboat which he commanded, but was in the employ of the person or persons who owned the boat. During the greater part of the time he was in the employ of a contractor, the late E. G. Brown, of Elizabethport, who owned dredges and similar appliances for construction work in our harbors. It was a part of Cosgrove's duty, as captain of the tugboat, and manager of the more or less extensive businessdone therewith, and necessarily for the most part done under his eye alone, to keep an account of all the work that his vessel did upon the various jobs in which from time to time it was employed, such as towing dredges, vessels, rafts, etc., and often also to fix the value of the different items of work accomplished by his boat. Mr. Rogers, the clerk and bookkeeper for years of Mr. E. G. Brown, was produced as a witness for the defendants. Mr. Rogers described the work which Capt. Cosgrove did, and showed that "he could not get along without keeping some books"; that he was obliged about once in two weeks to submit a written statement to the bookkeepers of his employers, exhibiting and classifying the work which his tug had done. This witness also showed that there was considerable business connected with the tug which involved the keeping an account by Capt. Cosgrove "of his labor items and board items, and coal, and things of that kind." It was natural that Capt. Cosgrove should seek the aid of some competent person to keep his books and make his reports. It was natural that he should go to the complainant for this work, as she was the daughter of his old friend. He knew her intimately, always addressing her by her first name. She was sufficiently well educated to be a teacher, and she testifies that she had taught bookkeeping. The necessity for this assistance appears to have arisen in the early 70's, when Capt. Cosgrove assumed the charge of Mr. Brown's boat. At that time (1872) the complainant, who had been married the year before to her present husband, was residing in small, but in apparently comfortable, quarters in Jersey City. Her husband was a fruit broker in New York. They kept no servant. Capt Cosgrove adopted the practice of coming to the Winfield home, in Jersey City, about once a week. He generally came Saturday night, and returned to his boat on Sunday night or Monday morning. According to the testimony of Mr. Winfield, he paid nothing for his board. There is no indication that either then, or at any time thereafter, while the relations of these people to each other lasted. Capt. Cosgrove ever paid anything, directly or indirectly, for his board and lodging. He maintained this habit of coming to the Winfield home about once a week, where a room was always kept for him, for 14 or 15 years, while the family lived part of the time in Jersey City, and part of the time in Newark. In the year 1887 or 1888, when the Winfields were established in Newark, and Capt. Cosgrove was obliged, from physical incapacity, to give up his employment, he established himself permanently with the Winfields, and resided with them continuously for about 5 years, until 1893. During this period he was supplied with board, lodging, washing, and mending, and during several illnesses was nursed by Mrs. Winfield Under the circum stances proved in this case, it would be very surprising if Capt. Cosgrove ever paid for these services and ministrations without leaving some evidence of the fact. There is no evidence of any such payment, and Mr. Winfield, who was the man of the house, and, in the absence of a special arrangement, would be entitled to receive the board money if the same was paid, swears positively that Capt. Cosgrove paid no board. Under the proofs in this case, the finding is inevitable that Capt. Cosgrove paid nothing for this large measure of support which he received from the Winfield family during a period of about 20 years. His position in the family undoubtedly was largely that of an intimate friend. He was a bachelor, having apparently no relatives residing near him. He was not only attached to Mrs. Winfield and her husband, but bore a tender affection for their only child. This child, a boy —Francis S.—was born in 1881, and received Capt. Cosgrove's name, Simon.

The evidence satisfies me that from 1872 until 1886 or 1887, when Capt. Cosgrove quit his active employment, the complainant, Mrs. Winfield, attended to his bookkeeping. When Capt. Cosgrove made his weekly visit to the Winfield home, he carried his illiterate scrawls in diaries and on slips of paper, some of which have been offered in evidence, and from these materials Mrs. Winfield made the proper entries in the necessary books. At regular intervals, also, Mrs. Winfield wrote out the reports which Capt. Cosgrove was obliged to hand in to the bookkeeper of his employer. Mrs. Winfield testifies that she wrote these reports on foolscap paper. Mr. Rogers, the bookkeeper of Mr. E. G. Brown, testified that, during the whole period of about 15 years during which this course of business was continued, Capt. Cosgrove banded in his reports on foolscap paper, written out, not by his own hand, but in handwriting which apparently was that of a woman, and was uniformly the same handwriting.

The evidence in this case, to my mind, compels the conclusion that Capt. Cosgrove not only received from this Winfield family, who were by no means in affluent circumstances, what amounted to eight or nine years of board, lodging, and personal care, but also received directly from Mrs. Winfield important and valuable assistance as a bookkeeper for a period of 14 years—services which he had to render as a part of his employment, for which he was paid, and which he was incapable of rendering personally in a satisfactory manner. The evidence also establishes to my satisfaction that Mrs. Winfield was never paid by Capt. Cosgrove, directly or indirectly, for any part of these services. No books of account, such as the testimony shows Capt. Cosgrove was obliged to keep, and in fact did keep, were produced in evidence. Young Mr. Winfield testifies that in 1893, five or six years after Capt. Cosgrove had given up active employment,and consequently ceased keeping books, when he was about to remove from the home of the Winfields and establish himself in Elizabethport again, he burned these books in the back yard of the Winfield premises, together with other things which were no longer of any value, and with which, naturally, he would not wish to be incumbered.

The first question which presents itself for solution is whether all this labor was performed by Mrs. Winfield, and board and lodging for these many years were supplied by her or her husband, as a mere gratuity to Capt. Cosgrove, this old family friend, this bachelor, without expectation of compensation, or, if with the expectation of compensation, merely with the expectation that such compensation would be voluntarily made by Capt. Cosgrove, in the form of a gift by will or otherwise. Capt. Cosgrove apparently was not in the habit of making gifts, and supplied little or nothing of value in that form to the Winfield family. If the services were gratuitously rendered, they must have been, it seems to me, either purely out of good will, or under the inspiration of the hope of a substantial legacy in Capt. Cosgrove's will. Practically, the question in the case is whether the services were rendered under circumstances which gave the complainant a legal right to compensation, or whether the complainant was beguiled into rendering them in reliance on a legacy which might or might not be made.

In my opinion, the evidence in this case leads to the conclusion that what Capt. Cosgrove received from Mrs. Winfield was furnished under circumstances which entitled her, in law, to compensation, and not under circumstances which merely left her to the enjoyment of expectations from the testamentary action of Capt. Cosgrove, in respect of which it turned out she was bitterly disappointed.

The direct testimony in regard to the basis upon which the business relations of these people were established in 1872 or 1873 comes from the husband of Mrs. Winfield alone. Counsel for the defendant, pursuing his legal rights, sharply excluded the testimony of Mrs. Winfield wherever it dealt with any "statement by or transaction with" the deceased Capt. Cosgrove. Some testimony of this character inadvertently appears in the case, but not, as I recall it, through any waiver or consent of counsel for the defendant. Any such testimony must, of course, be excluded from consideration.

Mr. Winfield is a conspicuous example of what lawyers technically call a "bad witness." In any matter requiring accuracy of observation, accurate regard to the questions of counsel, or accuracy of statement in response thereto, his testimony would be of little probative value. He is easily flustered, talks heedlessly, often answers one question when he thinks he is answering another, and the result is that his testimony is full of inconsistencies and even contradictions. But it is noticeable that these characteristics of his testimony are exhibited equally in all parts of his story—those which are important to his wife's case, in which he is deeply interested, and those which plainly have little bearing upon that case. It is easy to reach the conclusion that it would be unsafe to rely upon Mr. Winfield's accuracy in regard to matters in which the truth depended upon correct details, without imputing to him the intention, even in a cause so deeply affecting his own interests, of manufacturing a story out of whole cloth, and boldly supporting it by perjury.

Mr. Winfield, in his direct examination, testifies, in substance, that in 1872 or 1873, while he and his wife were living in Jersey City, about a year after their marriage, Capt. Cosgrove came to their residence, and proposed to Mrs. Winfield, whom he called "Minnie," that she should take charge of his books, and perhaps some other business, and that he stated that he did not expect her to work without compensation: and, when asked by Mrs. Winfield what her compensation would be, he said that he would get her a house and lot wherever she saw fit to select a place of residence, when he was able. Taking the whole testimony of the witness on direct and upon cross examination, I think that he means to testify that the proposition included the board and lodging of Capt. Cosgrove, which at that time would not amount to more than about a day in the week, or a day and two nights on the average, and that while the parties contemplated that the house and lot, when procured, should at once become the residence of Mrs. Winfield, the conveyance of it would be effected by Capt. Cosgrove's will. It may be conceded that the contract, as originally made, lacked several of the characteristics necessary in a contract which can be specifically enforced by this court. If, in pursuance of this arrangement, Mrs. Winfield had rendered services as bookkeeper and furnished board to Capt. Cosgrove for a number of years, and then he had died or undertaken to disaffirm the contract, Mrs. Winfield's sole remedy might have been by an action at law on a quantum meruit. If the parties had never done anything to make the contract definite in its terms, it may be conceded that no court of equity would enforce it specifically, and no action at law could be maintained upon it. But the situation was radically changed as time went by. In 1881 Capt. Cosgrove and the Winflelds proceeded to select a lot in the city of Newark—101 Congress street—which Capt. Cosgrove bought in his own name, and upon which he erected a dwelling house to meet the requirements of the Winfield family. Prom 1881 until about 1888 all the parties appear to have continued their relations in precisely the same way as while the Winflelds were living In Jersey City. Mrs. Winfield kept the books and made the reports, and Capt. Cosgrove had his room ever ready for him, and occupied the same, and took his meals with the Winflelds, usually from Satur day until Monday of every week. In 1885

Capt. Cosgrove made his will. This will was drawn by Mr. Charles A. Feick, a practicing lawyer of Newark. Some time between 1896 or 1808 and Capt. Cosgrove's death, in 1893, the will appears to have been destroyed by Capt. Cosgrove himself. At any rate, the will has not been found, although due search has been made therefor. Mr. Feick testified to its contents. He recollects distinctly that the will left the Congress street house to Mrs. Winfield, and he thinks that there was some conversation at the time of the execution of the will in regard to the reason for this devise, and that Capt. Cosgrove gave as a reason that he had boarded with the Winfields a long time, and had not paid any board, and that he was making the devise "for compensation of that kind." The witness cannot swear positively in regard to this matter, but he seems to have confidence in the general accuracy of his recollection. It is evident that Capt. Cosgrove might have included in his statement a reference to the services of Mrs. Winfield, and yet Mr. Feick, not being aware of the special services which Mrs. Winfield was rendering and had rendered, would not appreciate the full force of the words which the captain employed. The indebtedness for board he would readily understand, and be apt to remember. If the phrase was "board and services," Mr. Feick would be very apt to refer the word "services" to such services as are usually rendered by the boarding house keeper. If Capt. Cosgrove's statement left it uncertain whether he was seeking to discharge a legal obligation, or a moral obligation only, the fact remains that be admitted that he had boarded with the Winfields for a long time, and paid no board; and he declared, not that he was making a gift, but that he was rendering compensation. There was no reason why he should disclose to the lawyer any bargain which he had made with the Winfields years before, and there are indications in this case that Capt. Cosgrove, possibly from a motive of pride, was inclined to conceal the fact that he was unable to properly discharge an important part of the duties of his position, and therefore was obliged to call in the aid of a woman. The testimony of Mr. and Mrs. Winfield?and then son, I think, as well—is positive in regard to the contents of this will. They say that it not only devised the house and lot No. 101 Congress street, but also gave Mrs. Winfield a legacy of $2,000.

A writing without date is also produced, which is proved to be in the handwriting of Capt, Cosgrove. The possibility of forgery is practically excluded, and no attempt was made to question the genuineness of the writing. It is a rude attempt at a will, or instructions for a will, such as an illiterate man would be liable to write down. It undertakes to give to Mrs. Winfield the house and lot known as 101 Congress street, Newark. N. J., and $2,000. Five hundred dollars is given to a sister, Bridget Bowen, in trust for another sister, and the residue of the property is then given to the sister Bridget Bowen. There is no signature. At the top of the paper, as an afterthought, or to correct an omission, are the words, "My gold wach and Chaine to Frank S. winfield." I shall not undertake to discuss the conflicting testimony in regard to the history of this paper. The testimony of Mr. Winfield in regard to it strikingly illustrates the difficulty which this gentleman experiences' when he undertakes to confine his mind to any subject-matter, to listen to questions in regard to such subject-matter, and answer them thoughtfully and intelligently. I cannot find from the testimony support for the theory that Mrs. Winfield, often at the expense of the performance of her household duties, rendered these important and valuable services to Capt. Cosgrove for 10 or 12 years in order merely to curry favor with the old bachelor, and win from him a reward in the shape of a legacy. I do not think that the perusal of this whole testimony would justify the conclusion that Capt. Cosgrove would have gone to Mrs. Winfield, this young married woman, the daughter of his old friend, who, however, was under no obligations to him, and would have asked her, year after year, to render these efficient and valuable services, to receive him into her house from week to week, and keep a room there always ready for him, without offering her any pecuniary compensation. To ask for and receive such services gratuitously would be discreditable to a man in Capt. Cosgrove's position. While it may be that the testimony of Mr. Winfield, discredited by his great interest, and by the qualities of mind which affect his accuracy as a witness, to which I have referred, might be a totally insufficient basis upon which to establish the first proposition of the complainant's case, viz., that the services were rendered not gratuitously, and not in reliance merely upon the good will of Capt. Cosgrove, to be manifested in a testamentary gift, I still think that this testimony is strongly corroborated by all the probabilities in the case, and by the conduct of the parties, abundantly proved by impartial witnesses.

When the lot in Congress street was selected by Mrs. Winfield and Capt. Cosgrove, in 1881, and the house was built upon it, and the Winfields moved into it, and maintained, as before, a room and home for Capt. Cosgrove whenever he desired to come, then, for the first time, the compensation which Mrs. Winfield was to receive was definitely fixed between the parties; and Mrs. Winfield went on performing the contract on her part in reliance upon the promises of Capt. Cosgrove to leave this house and lot to hr by his last will. This promise was repeated frequently, according to the testimony of some of the witnesses; and Mrs. Winfield herself was allowed to retain the possession of the will from a time shortly after its exerationuntil 1806 or 1898, a period of 12 or 13 years. In 1887 or 1888—I think it was in the fall of 1887—Capt. Cosgrove was obliged to abandon his position as captain of the tugboat, on account of his infirmities; and he does not appear to have been actively engaged in business at any time thereafter until his death, in January, 1899. He took up his permanent residence with the Winfields, in the Congress street house. He then proposed, according to Mr. winfield's testimony, that, inasmuch as the Congress street house was too large, and the character of the neighborhood had changed, it would be well for Mrs. Winfield to select a location elsewhere in the city of Newark, upon which he (Capt. Cosgrove) would build another house. This plan was carried out. Mrs. Winfield selected a plot in Milford avenue. Mr. Winfield negotiated a sale of the Congress street house and lot for $4,775. The family moved into a house in Bladwin street, which Mr. Winfield rented, where they remained about six months, while the new house in Milford avenue was building. Mr. Winfield testifies to conversations between himself, his wife, and Capt. Cosgrove. In which Capt. Cosgrove stated most positively that the Milford avenue house should be substituted in his will for the Congress street house. The lot in Milford avenue was conveyed to Capt. Cosgrove precisely as the Congress street lot had been conveyed, and in like manner Capt. Cosgrove contracted for the erection of the dwelling house upon it, and paid the cost thereof. The house and lot appear to have been less valuable than the Congress street property; the total cost being $3,000, or, at most, $4,000. The proofs establish beyond all doubt that, while the Milford avenue house was building and subsequently, Capt. Cosgrove stated most positively to a number of disinterested witnesses, who were not in any way impeached, that the house belonged to Mrs. Winfield, or to "Minnie," as he called her; that he had built it, or provided the money for its erection, but that it belonged to her. These statements appear to have led some persons to believe that the title to the property was actually vested in Mrs. Winfield, and they seem to me more natural and apt, as the expression of the idea in Capt. Cosgrove's mind that Mrs. Winfield had a right to the property which his money had paid for, rather than of the idea that he intended upon his death, or at some time, to make a gift of the property to her as a recognition of kindness which he had received from her. Mr. Hobby, one of the corpenters who built the Milford avenue house, whose impartiality and entire credibility are not questioned, testified positively that Capt. Cosgrove told him that he was to do whatever Mrs. Winfield wanted to have done. He said: "I am building the house for her." Mr. Searing, a bookkeeper—an intelligent and impartial witness—testified that, at a little entertainment at the Milford avenue house after the family had moved in, the subject of the house and its dimensions, etc., was under discussion, and that Capt. Cosgrove said: "This house belongs to Minnie, but my money built it, or paid for it." The witness received the impression that Mrs. Winfield was then the owner of the house. Mrs. May Sweeney, a friend of the Winfield family, but not related or apparently under any obligations to them, testified that before her marriage, when she was a young girl, she was visiting the Winfield family at their home, in Milford avenue, when Capt. Cosgrove also was a visitor. This was after Capt. Cosgrove had left the Winfields, and established his permanent home in Elizabethport. The incident took place some time in the year 1894. or possibly 1895. The witness at the time was about 15 years old, and admits that she was inquisitive in regard to the ownership of the Milford avenue house, having heard that the property belonged to Mrs. Winfield. Accordingly she put the question directly to Capt. Cosgrove whether the house was his. He said: "No; it was Mrs. Winfield's house." The witness, with youthful inquisitiveness and impertinence, repeated her question until Capt. Cosgrove showed some temper, and got up and walked away.

The conduct of Capt. Cosgrove is all consistent with the claim of the complainant to the effect that she began rendering services to Cosgrove in reliance upon his promise to compensate her, although the promise may have been too indefinite for enforcement in any court; that when a house and lot had been largely, if not entirely, earned by many years of service, the same was provided for Mrs. Winfield's use; that, soon after, Capt. Cosgrove made his will, not only devising this house and lot to Mrs. Winfield, but also making her a substantial gift in money; that later the Milford avenue house was substituted for the former one, and that both parties to the original bargain agreed that this Milford avenue house and lot should go upon Capt. Cosgrove's death to Mrs. Winfield, as the full measure of the compensation which then she had earned. Just as in the will of 1885 Capt. Cosgrove had made a pecuniary legacy, recognizing the inadequacy of the devise to compensate Mrs. Winfield. so it may very well be that the Winfields relied upon similar testamentary action by Capt. Cosgrove on their behalf after his obligation to them had been largely increased. The board which probably was Included in the original contract plainly was such board as Capt. Cosgrove would naturally wish to receive for about one day in the week upon the necessary occasion of his visits at the Winfield house in order to attend to his bookkeeping business with Mrs. Winfield. After 1887 it may be that Mr. Winfield gave Capt. Cosgrove five years of continuous board and lodging in his family from motives of friendship or from expectations of a legacy, or from a desire not toimperil the performance by Capt. Cosgrove of his obligation to leave first the Congress street house, and then the Milford avenue house, to Mrs. Winfield by will. So far as Capt. Cosgrove's continuous board and lodging for the last five years of his stay with the Winfields was not within the terms of the bargain to devise the house and lot to Mrs. Winfield, Mr. Winfield appears to be without remedy. Apparently all or very nearly all his claim, if there was a claim, was barred by the statute of limitations at the time of Capt. Cosgrove's death.

One circumstance proved in the case would tend to discredit the claim of Mrs. Winfield, if we were dealing with people who had not, upon any theory of the case, behaved in a manner contrary to those rules of foresight and prudence which ought to guide men, and even women, in all important business transactions. Such rules, however, are frequently disregarded when old friendship, and confidential relations built thereon, exist between the parties concerned. It appears that Mr. Winfield, who was the man of the house and the breadwinner of the family, to whom, as I have said, any legal liability of Capt. Cosgrove would exist on account of the item of board, paid to Capt. Cosgrove a sum of money during the whole period of the occupancy of the Congress street house and the Milford avenue house, down to the death of Capt. Cosgrove, which amounted to about $250 a year. This money, Mr. Winfield says, was not paid as rent, but was a sort of contribution fixed upon between the Winfields and Capt. Cosgrove as an equivalent of the "running expenses" of the property. As a matter of fact, this sum about equals the taxes on the Milford avenue house, and the insurance, and 5 per cent. upon the cost. The expenses of repairs and other charges were borne by the Winfields.

When, with the full consent of Mr. and Mrs. Winfield, the Milford avenue property was substituted for the Congress street lot, in 1888, I think the proofs show that all parties accepted the Milford avenue property as the house and lot which Capt. Cosgrove agreed to give Mrs. Winfield by a devise in his will at the beginning of the business relations between them. When the compensation under the bargain was made definite, in 1881, by the purchase of the Congress street property, and especially when Capt. Cosgrove made his will, in 1888, with the full knowledge of Mrs. Winfield, devising that property to her, and then allowed her to take possession of the will, the whole bargain, as I have heretofore stated, which was theretofore indefinite, became fixed and certain; and, in reliance upon it, Mrs. Winfield proceeded with the discharge of her duties under her contract. For about seven years after the purchase of the Congress street property, and the apparent appropriation of it by Capt. Cosgrove to the satisfaction of his agreement, Mrs. Winfield proceeded with the more or less laborious work of keeping Capt. Cosgrove's books and making his reports. For about two years after the will was made she continued this work. When Capt. Cosgrove quit his active business, about 1887, the greater part, but not all, of Mrs. Winfield's services as bookkeeper and business agent apparently terminated; but there is evidence that she still rendered services from time to time, in perhaps comparatively unimportant matters, down to the time, or almost the time, of Capt. Cosgrove's death. However this may be, while the bookkeeping may have ceased in 1887, from that time down to 1893—a period of five or six years—Capt. Cosgrove, as we have seen, was boarded, lodged, fed, and cared for as a member of Mr. Winfield's family.

I do not believe that Capt. Cosgrove was guilty of the meanness of holding out to these people a glittering expectation of a substantial testamentary gift as the reward for their services, and compensation for the home with which they gratuitously supplied him, while he craftily intended to defeat that expectation, and receive, without rendering any compensation, all the benefits which these poor people were conferring upon him. No such position was taken by counsel for the defendants in the argument. If such a fraud had been perpetrated, I do not stop to inquire whether this court or any court could give the complainant any relief. The whole history of the relations of these people strongly indicates that from the very beginning of their relations, in 1872 or 1873, down to the death of Capt. Cosgrove, in 1899, the intention was, as Mr. Winfield distinctly testifies, that, while the house and lot should be furnished to Mrs. Winfield when Capt. Cosgrove became able to make the necessary expenditure, the final conveyance of the house and lot was to be effected by Capt. Cosgrove's will. The arrangement by which Mr. Winfield paid the fixed charges of the residence properties and about 5 per cent. upon Capt. Cosgrove's outlay accords with the theory that the compensation was to be by will.

In 1893 Capt. Cosgrove removed from the Winfield house, and went to live at the house of Mrs. Brown, a sister of Mrs. Winfield, at Elizabethport, where he boarded until his death, in January, 1899. It does not appear that this removal was caused by any estrangement between the Winfields and Capt. Cosgrove. He repeatedly visited the Winfield's house, and it appears that his room was always kept ready for him, and that no boarder was taken into the Winfield family on that account. A most affectionate letter is produced, written by Capt. Cosgrove to young Winfield, dated July 5, 1894. When Capt. Cosgrove died, his trunk where he kept his papers was opened and examined, but no will was found. Mrs. Brown testified that he stated to her, presumably not very long before his death, that he had destroyed the will. He had in 1896 or 1898 procured the will from Mrs. Winfield's house. The only testimonywhich we have on the subject indicates that he took the will at that time, with the knowledge and consent of Mrs. Winfield, together with some other papers of value which belonged to him, because they were then in the house of the Winfields, in Newark, where they were not entirely safe while the Winfields were staying at Ocean Grove. I do not think that it is a matter of much consequence what took place between the Winfields and Capt. Cosgrove in regard to this will after 1893. If Mrs. Winfield is entitled to a decree in this case, she would have been entitled to it in 1893 if Capt. Cosgrove had then died intestate, and before dying had destroyed his will with intent to defeat Mrs. Winfield's claim. There is no evidence to suggest that if Mrs. Winfield had a right in 1893 to the Milford avenue property, as the compensation for the services which she had rendered to Capt. Cosgrove, and the board in her family which Capt. Cosgrove had enjoyed, she ever lost that right by anything that occurred thereafter.

The whole conduct of Capt. Cosgrove in dealing with both the Congress street house and the Milford avenue house discloses that it was his distinct purpose to hold the title to each of these properties during his life under his own control; that in each case the house and lot should remain his property until it should pass to Mrs. Winfield upon his death by his will. It might be contended, although there is no evidence on the subject, that what the Winfield family paid out to all parties in connection with their occupancy of the Congress street house and the Milford avenue house amounted to a low rent for the same. If for this class of property a 5 per cent. net return to the landlord is somewhat below the market rate, it still is true that Capt. Cosgrove was satisfied with the interest on his investment. The arrangement seems to have been that Mrs. Winfield was not to receive the compensation for her services until Capt. Cosgrove's death. During the lifetime of Capt. Cosgrove the one party continued indefinitely giving what was of substantial pecuniary value. The other party received these benefits through all these years, for which he was bound to make compensation; but the compensation was fixed first indefinitely as a house and lot situated somewhere, and then distinctly and definitely as a particular house and lot. I think that it is quite plain that, apart from the definite compensation agreed upon between the parties, there was an expectation on the part of Mrs. Winfield, and at one time an intention on the part of Capt. Cosgrove, that he should recognize the insufficiency of the compensation agreed upon, in the shape of a house and lot, for services of so much greater value, in an appropriate manner, voluntarily, by giving Mrs. Winfield a substantial legacy. This is precisely what he did in 1885. He left Mrs. Winfield a house and lot worth $4,775, and $2,000 in money; making $6,775 in all. This conduct of Capt Cosgrove accords with the testimony of young Mr. Winfield, to the effect that at a later period, when his Obligations to the Winfields had still further increased, Capt. Cosgrove declared that he regarded that what Mrs. Winfield had done for him was worth $8,000.

Whatever may have been the legal or equitable rights existing between Capt. Cosgrove and Mrs. Winfield prior to 1888, in my judgment, when the Winfield family took possession of the Milford avenue property, there was then in existence a complete, definite oral agreement between Mrs. Winfield and Capt. Cosgrove, to the effect that, in order to compensate Mrs. Winfield for her services as bookkeeper during 14 or 15 years, which services had then been concluded, he (Capt. Cosgrove) would give her the Milford avenue property by his will. I think, also, that the incidental board, to the extent of not more than one day in the week, which Capt. Cosgrove had received from the Winfield family, was included within the compensation as agreed upon. Recognizing fully the safe rule which requires such a contract to be clearly proved, in my opinion the proofs in this case come fully up to the required measure. Mrs. Winfield relied upon this promise of Capt. Cosgrove from 1888 until his death, 11 years later; and if during the last 4 or 5 years of his life she may have entertained a fear that he would not keep his word and perform his promise, which the evidence does not establish, the fact remains that long before any such notice could have come to her, while she had the captain's will in her possession, which gave her the Congress street property, and undoubtedly a legacy of $2,000 as well, her claim for services on a quantum meruit had become barred by the statute of limitations.

The last question to be discussed is whether the legal remedy of Mrs. Winfield is adequate. We have not here a case where the contract was to compensate Mrs. Winfield for her services by a legacy, or by a testamentary disposition of a nature undisclosed. In such case it may be that neither the statute of limitations nor the statute of frauds would bar an action brought now by Mrs. Winfield on the contract against the administratrix of Capt. Cosgrove for the recovery of fair compensation for all services and all board which may have been rendered or supplied in execution of the contract on her part. We have most distinctly a case of a promise to compensate Mrs. Winfield by a devise of land. Such a promise is within the statute of frauds. Brown on the Statute of Frauds (5th Ed.) § 263; Johnson v. Hubbell, 10 N. J. Eq. 332, 64 Am. Dec. 773; Gould v. Mansfield, 103 Mass. 408, 4 Am. Rep. 573. There is not the slightest evidence in this case that Capt. Cosgrove ever made any promise to compensate Mrs. Winfield for her services, or to compensate Mr. Winfield for five years of board and lodging,by a legacy, or by any testamentary disposition, except this devise, first of the Congress street property, and then of the Milford avenue property. Any action at law, therefore, which Mrs. Winfield could now maintain, would be confined to an action on the common counts to recover the value of her services, and could not be brought upon any contract of Capt. Cosgrove to render her compensation by his will. Such an action, as we have seen, would be met by the statute of limitations, as a complete bar. Any action which Mr. Winfield might bring to recover compensation for the five years of board preceding 1893 would in like manner meet the bar of the statute of limitations. Let us suppose it to be possible that Mrs. Winfield might maintain an action at law against Capt. Cosgrove's administratrix, and then, in aid of such suit, exhibit to this court a state of facts warranting an injunction prohibiting the defendant from settling up the statute of limitations as a defense. No such possibility has been suggested in the argument. No testimony has been taken with such a possibility in view. The complainant, it seems to me, cannot be deemed to have an adequate remedy at law, when she can only pursue such remedy effectively in case she first succeeds in a doubtful preliminary suit in equity for an injunction, which, no doubt, would be hotly contested. In view of the years of faithful service winch Mrs. Winfield rendered to Capt. Cosgrove?bringing to the management of his business the education, intelligence, and skill as a scrivener and bookkeeper, which he did not possess, and without which he might not have been able to maintain his responsible and lucrative position—and in view of the promises and statements of Capt. Cosgrove, upon which Mrs. Winfield relied for many years, and in reliance upon which she has lost her legal rights, or at least allowed their enforcement to become difficult and expensive, it seems to me that to turn her out of this court now would amount to the accomplishment of a fraud. Nor do I think that if Mrs. Winfield were able to maintain an action at law for the recovery of compensation, to be fixed by a jury, for all the services as bookkeeper which she rendered to Capt. Cosgrove, and if Mr. Winfield were able to maintain a similar action for the five years of board, the result would accord with justice. The relations of these people were peculiar. Any assessment of damages or fixing of compensation by a jury would, to a large extent, be guesswork. The parties made their own assessment, and fixed the compensation which Mrs. Winfield was to receive. It seems to me that it is equitable and just both to Mrs. Winfield and to the estate of Capt. Cosgrove that she (Mrs. Winfield; should receive the very thing which she and Capt. Cosgrove agreed upon as the measure of her compensation after all her services practically had been rendered. As suming that the Winfields did not agree to board and lodge Capt. Cosgrove indefinitely after 1888 because of the devise which he was going to make to Mrs. Winfield in compensation for what she had already done, and further assuming that Mr. Winfield did not in any way receive compensation for the five years' board which he furnished to Capt. Cosgrove from 1887 or 1888 to 1893, the true conclusion, I think, is that, inasmuch as Mrs. Winfield during all that period had the will in her possession which gave her a legacy of $2,000, both Mr. and Mrs. Winfield were entirely willing to allow their generous benefactor to have his home with them. Capt. Cosgrove seems to have broken down in health in 1887, and the Winfields testify that he had several illnesses. It is not surprising that under these circumstances the matter of the captain's board was never made the subject of a bargain, and that the Winfields should have been led to give their old friend a home with them without charge, and in reliance upon this friend's testamentary benevolence. If Mr. Winfield finds himself in the position of having supported Capt. Cosgrove for five years under circumstances which prevented him from recovering compensation from Capt. Cosgrove at any time, or now finds himself with what was originally a just claim against Capt. Cosgrove for compensation barred by the statute of limitations, that is a matter which does not in any way affect the claim of Mrs. Winfield preferred in this case.

The alternative prayer of the bill, to the effect that, in case specific performance of the contract to convey the Milford avenue house cannot be enforced, then the amount justly due to Mrs. Winfield may be ascertained by this court in this suit, and decreed to be paid out of the Cosgrove estate, may be noticed for the purpose of pointing out that neither the bill nor the testimony in this cause affords any basis for any relief. The bill does not charge that Capt. Cosgrove obtained the valuable services of Mrs. Winfield by any fraudulent practice, or that at any time while those services were being rendered he did not fully intend to make ample compensation for those services in accordance with his agreement and Mrs. Winfield's expectations. The case, therefore, is radically different from Eggers v. Anderson, 63 N. J. Eq. 264, 49 Atl. 578, 55 L. R. A. 570. In the class of cases to which this belongs, it is very properly said that specific performance is granted because to deny it would accomplish a fraud. Fraud is not redressed, but prevented, by the decree of specific performance.

In my opinion, the complainant has no adequate remedy either in a court of law or a court of equity, unless she can in this cause obtain a decree specifically enforcing the promise which I am satisfied Capt. Cosgrove made to her, to the effect that the Milford avenue property should belong toher at his death, as the compensation for the years of valuable service which she rendered to him. I shall advise a decree for the complainant as above indicated, but, under the circumstances, without costs.