Cook v. Gill

257 A.D. 898 | N.Y. App. Div. | 1939

Defendants have appealed from a judgment of the Madison Trial Term of the Supreme Court in an action tried before the court without a jury. The action was for the specific performance of an alleged agreement between Frank B. Gill and his wife, Emma L. Gill, both deceased. The court found that the husband and wife had pooled their property which the husband was to control and that they mutually agreed that the husband would by his will give $5,000 to his wife’s brother, the plaintiff, for life, with remainder to his daughter, the coplaintiff. The wife predeceased her husband and the latter left his entire estate to the defendants without making any provision for his wife’s brother or the niece. The court found that the agreement between the husband and wife was established by clear and convincing evidence and that the husband failed in the performance thereof. The evidence sustains the findings. Judgment affirmed, with costs. All concur, except MeNamee, J., who dissents on the authority of Wallace v. Wallace (158 App. Div. 273, 281, and the cases cited therein). The evidence upon which the contract alleged to have been made by the deceased party was parol and was not corroborated by wholly disinterested witnesses, was not of convincing character; that the result of the alleged contract was inequitable in that it deprives the widow and son of $5,000 of an estate which consisted of only $12,000.