Ex Parte Simons

delivered the opinion of the court.

This is a petition for mandamus, or, if that is denied, for prohibition or certiorari', to the District Court for the Southern District of New York upon the following facts. The petitioner brought an action in two counts against the executors of. a widow named Mrs. Frank Leslie. The first count alleged a promise by Mrs. Leslie that if the plaintiff would perform certain personal services of attendance and care to her, she would bequeath to the plaintiff $50,000. It set forth the performance of .the services in great detail, alleged the death of Mrs. Leslie and probate of her will, the beqúest to the plaintiff of not more than $10,000, and claimed $40,000 with interest from one year after the death of the. testatrix, as damages. The second count repeats by reference the averments of the first count, but alleges a promise to pay the reasonable value of the plaintiff’s services, set at $50,000, of which $10,000 have been satisfied by legacy, and claims damages as before. On motion of the defendants the' judge sitting to hear motions in the District Court ordered the first cause of action to be transferred to the equity side of the Court and docketed as an equity cause, and to be stricken out of the complaint in the action at law, but only for the purpose of transfer, allowing the plaintiff to amend, &c. The ground disclosed-was that by the. law of New York the *239 plaintiff could not sustain the first cause of action at law.

We do not find sufficient ground for the opinion of the judge in the New York decisions. No doubt alleged contracts to make a provision by will must be approached with great caution in the matter of proof, but there is no doubt that if proved they are valid so far as no statute intervenes. So much seems to be assumed by the order of the judge, and is the law we believe of New York as well as of other States and England. But if valid, we see no reason why a contract to bequeath a certain sum should not give rise to an action for damages if broken, as certainly as a contract to pay the same sum in the Contract- or’s life, or at the moment of the contractor’s death. Parker v. Coburn, 10 Allen, 82. In cases of contracts to leave all the testator’s property, including land, or a proportion of a residue requiring an account to ascertain it, equitable remedies have been thought proper, and in some such cases it has been assumed for thé purposes of argument that an action would not lie at common law. See Winne v. Winne, 166 N. Y. 263. Phalen v. United States Trust Co., 186 N. Y. 178. But we have seen nothing that suggests an arbitrary departure by the Courts of New York from the common law in cases like the present. See Farmers’ Loan & Trust Co. v. Mortimer, 219 N. Y. 290, 295. DeCicco v. Schweizer, 221 N. Y. 431. Silvester’s Case, Popham, 148, 2 Roll. R. 104. Fenton v. Emblers, 3 Burr. 1279. Van Houten v. Van Houten, 89 N. J. L. 301. Krell v. Codman, 154 Massachusetts, 454.

If we are right, the order was wrong and deprived the plaintiff of her right to a trial by jury. It is an order that should be dealt with now, before the plaintiff is put to. the difficulties and the Courts to the inconvenience that would be raised by a severance that ultimately must be held to have been required under a mistake. It does not *240 matter very much in. what form ah extraordinary remedy is afforded in this case. But as the order may be regarded as having repudiated jurisdiction of the first count, mandamus may be adopted to require the District Court to produce and to give the plaintiff her right to a trial at common law. See Brown v. Circuit Judge of Kalamazoo County, 75 Michigan, 274.

Rule absolute.