Pennsylvania Power Co. v. Public Service Commission (Pa.). Pennsylvania R. Co., De Haas v. (Pa.)... 733 Pennsylvania R. Co., Di Grazio v. (Pa.).. 596 Pennsylvania R. Co., Hyatt Roller Bearing Co. v. (N. J. Sup.) Pennsylvania R. Co., Swank v. (N. J. Sup.) Pennsylvania R. Co., Twersky v. (Pa.). Pennsylvania State Camp, Patriotic Order of Americans, Application of (Pa.)...... 590 Pennsylvania Water & Power Co., Vandersloot v. (Pa.). 82 26 Ransley v. Kensington Workingmen's Bldg. Ass'n, No. 2 (Pa.).. 745 63 Rasst v. Morris (Md.). 412 Raymond v. Sheldon's Estate (Vt.).. Reed v. Reed (Me.)... 106 227 Reisher's Estate, In re (Pa.).. 555 799 Pension Mut. Life Ins. Co. v. Whiteley (Pa.) Remedial Loan Co. of Philadelphia, Wheeler v. (Pa.).. 508 658 Remson, Boynton v. (Md.). 527 Pension Mut. Life Ins. Co. v. Whiteley (Pa.) 660 824 Perkins, Benoit v. (N. H.). 254 Rhode Island Co., Broderick v. (R. I.)... 689 Rhode Island Co., Morrison v. (R. I.).... 71 Rhode Island Co., Morrison v. (R. I.)... 609 Rhode Island Co., Public Utilities Commission v. (R. I.). 690 Peters, Kerk v. (Pa.). 549 Philadelphia Rapid Transit Co., Doyle v. Rhode Island Co. v. Superior Court (R. I.) 634 Richmond v. Bethlehem (N. H.). 773 (Pa.) 575 Philadelphia Rapid Transit Co., Forrest v. (Pa.) 663 Ridley, City of Bangor v. (Me.). 230 Philadelphia Rapid Transit Co., Shields v.. Rieker, City Bank v. (Pa.). 804 (Pa.) 665 Philadelphia Rapid Transit Co., Wood v. (Pa.) 69 Philadelphia & R. R. Co., Caffery v. (Pa.) 569 Robertson v. Wilmington & P. Traction 241 32 Riker, McMahon v. (N. J. Sup.). 289 v. (N. 225 818 839 601 491 127 1. SPECIFIC PERFORMANCE 86- REMEDY AT LAW-DEVISE OF HOMESTEAD. Specific performance of oral agreement to devise a homestead in return for services during testator's life is a subject for equity, and devisee is not required to seek redress at law. 2. SPECIFIC PERFORMANCE 130-DEVISE OF HOMESTEAD RETAINING PROPERTY DEVISED -RELIEF. In a suit for specific performance of contract to devise a homestead and personal property, testator having willed the property to plaintiff for life only, with a bequest of the personalty, contention that, if a conveyance is to be made of realty, plaintiff must give up the personalty devised as a condition thereof is without merit, where such was the property contracted for, and plaintiff seeks no other. 3. SPECIFIC PERFORMANCE 106(3)-DEVISE OF HOMESTEAD-NECESSARY PARTIES-CLAIMANTS BY REPRESENTATION. In a suit for specific performance of an oral contract to devise a homestead descendants of testator, whose rights under the codicil are by representation, are not necessary parties, where those under whom they must claim are defend ants. 439 4. EXECUTORS AND ADMINISTRATORS SPECIFIC PERFOrmance of Contract to DEVISE-NECESSARY PARTIES. The executors of a will are not necessary parties to a suit for specific performance of a contract to devise a homestead, where they are not charged with any duty involving the homestead. 5. WILLS 59--CONTRACT TO DEVISE HOMESTEAD-ADEQUATE CONSIDERATION. A contract to devise a homestead to plaintiff in return for plaintiff's services until testator's death, and fully carried out by plaintiff during such period of more than nine years, was founded upon adequate consideration. 6. SPECIFIC PERFORMANCE 121(6)-DEVISE OF HOMESTEAD-FINDINGS-SUFFICIENCY. Evidence held sufficient to sustain a decree against heirs for the specific performance of an oral contract to devise a homestead. 7. APPEAL AND ERROR 1009(7)-FINDINGS OF SINGLE JUSTICE-EQUITY HEARING. The decree of a single justice upon matters of fact in an equity hearing will not be reversed, unless it clearly appears that the decree is erroneous. Appeal from Supreme Judicial Court, Cumberland County, in Equity. Bill by James Edward Eastman against George I. Eastman and others. Decree for plaintiff, and defendants appeal. dismissed. Appeal Robert E. Randall, of Freeport, and William A. Connellan, of Portland, for appellants. Wheeler & Howe, of Brunswick, for appellee. HANSON, J. This is a bill in equity, praying for the specific performance of an oral agreement made by James Eastman, father of the plaintiff, to devise his homestead farm in Brunswick to the plaintiff. The cause was heard by a single justice of this court, who sustained the bill. Final decree was made and filed, and the defendants appealed therefrom to the law court. The sitting justice found the following facts to be established: "James Eastman, late of Brunswick in the county of Cumberland, died on the 10th day of June, A. D. 1915, seised and possessed of a certain homestead farm situated in said Bruns wick. About nine or ten years before his death the said James Eastman entered into an agree ment with the plaintiff, who was his eldest son, that if the plaintiff would remain with the said James Eastman during the remaining lifetime of the latter and assist him in the proper care, cultivation, and management of said farm, he would devise the said farm to the plaintiff, together with the stock, tools, and other goods and chattels thereon, so that the plaintiff would become the owner thereof in fee simple after the death of said James Eastman. Relying upon said agreement and in fulfillment thereof, the plaintiff remained. with the said James Eastman continuously from the time said agreement was made until the death of said James Eastman, fully and faithfully performing all of the duties and obligations imposed upon him by the terms and conditions of said agreement. the said James Eastman made and executed "On the 7th day of December, A. D. 1911, his last will and testament, whereby the said farm was devised in fee simple to the plaintiff, together with the personal property above mentioned. "On the 19th day of December, A. D. 1914, the said James Eastman made and executed a codicil to his said last will and testament whereby the devise to the plaintiff of said farm was revoked, and the same was devised to the plaintiff for the term of his natural life only, and an estate in remainder in said farm was thereby devised to any of the children of James Eastman who might be living at the death of the plaintiff, with the provision that if any of said children should die prior to the death of the plaintiff, leaving descendants, the descendants of such child or children would take the share their parent would have taken For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes if living, per stirpes. By the terms of said codicil the personal property above described was bequeathed to the plaintiff. Both the will and codicil have been duly proved and allowed in the probate court for said county of Cumberland. "Upon the foregoing facts I find and rule that the plaintiff is entitled to receive and retain the personal property bequeathed to him by said will and codicil, and is also entitled to a specific performance of the agreement to devise the farm made by said James Eastman as aforesaid, and that the defendants should be required to convey to the plaintiff all of the right, title, and interest which they have acquired to said premises, the same being all of the real estate owned by the said James Eastman at the time of his decease in the county of Cumberland. A decree may be made and filed to carry out these findings and conclusions. "Dated this 8th day of January, A. D. 1917." And thereafter, on the 4th day of January, 1917, made and filed the final decree, which follows: R. S. cific performance of written contracts. That compensation in damages for the breach of an agreement to convey real es tate is not regarded as adequate relief is well settled. Foss v. Haynes, 31 Me. 89; Woodbury v. Gardner, 77 Me. 69; Twiss v. George, 33 Mich. 253; Bennett v. Dyer, 89 Me. 17, 35 Atl. 1004; Howe v. Watson, 179 Mass. 30, 60 N. E. 415; 36 Cyc. 673, and cases cited; Howe v. Benedict, 176 Mich. 522, 142 N. W. 768. [2-4] The second objection has no merit, inasmuch as the plaintiff has received and retains the personal property involved in the contract and seeks no other. The third and fourth objections deal only with questions raised in view of the codicil, which in no manner affect the main question involved here. The parties directly interested are in court and answering, and the parties who are pointed out as having an indirect interest under the codicil, the other children of James Eastman or their descendants, are not necessary parties to this proceeding. If there is a remote or contingent interest in the parties named, it would be by right of representation, and they would be bound by any decree made against the defendants under whom they must claim, if they should claim at all. Morse v. Machias Co., 42 Me. 119. Nor are the executors necessary parties, as "This cause came on to be heard this day upon bill, answer, replication, and proofs, and was argued by counsel, and thereupon, upon consideration thereof, the plaintiff's bill is sustained, with costs, and it is ordered, adjudged, and decreed as follows, viz: That the defend ants, George I. Eastman, Winnie Holbrook, Clara G. Soule, and Clarence E. Eastman, shall make, execute, acknowledge, and deliver to the plaintiff, James Edward Eastman, a quitclain deed, with special covenants of warranty against the lawful claims or demands of all persons claiming by, through, or under them of the premises described in the plaintiff's bill, and being all of the real estate owned by James Eastman, the father of the parties to this cause, within 21 days from the date of this decree. "Dated this 24th day of January, A. D. 1917." The defendants in their answer invoke the statute of frauds, but waive the same in brief and argument. At the hearing no defense was offered, the appellants relying wholly upon technical objections raised on appeal and urged in their behalf. They contend that: (1) The plaintiff should be left to they are not in this instance charged with pursue his remedy in a court of law, as the circumstances connected with this case do not call for the exercise of equitable powers. (2) If any conveyance of the property should be made to the plaintiff, he must be required, as a condition thereof, to give up the bequest made to him under the will. (3) All parties concerned in the property covered by the finding of facts and decree are not parties to this action. (4) No evidence as to personal property that conditions named in the codicil have been per any duty involving the real estate in question. [5] Here as the sitting justice finds, there was full performance on the part of the plaintiff. The contract was founded on an adequate consideration, was finally put into writing when the will was made, and the plaintiff relied thereon. In addition to the performance of his obligation, and the payment of the consideration, the plaintiff must be held to have been in possession under the contract for the last three months at least with the knowledge and consent of the decedent, and that on entering upon the contract the plaintiff abandoned other plans and business prospects at the request of his father, who well knew that such abandonment caused the plaintiff financial loss. Again the plaintiff from time to time earned money from other work and used the same in the development, use, and improvement of the farm. [6] The findings of fact by the sitting justice are amply sustained by the evidence, and in accord with the cases above cited, announcing a uniform rule that specific per |