27 Misc. 2d 424 | N.Y. Sup. Ct. | 1960
Defendants move for dismissal of the complaint, for legal insufficiency. The action is brought upon an alleged agreement to bequeath. The agreement in letter form is as follows: “ I want you to have an equal part of my estate, after my death. One-fifth, exactly as my nephew Wm. B. Herbst, my niece, Mildred Misson, Shirley Nesbit and my nephew-in-law Clinton Misson. I also want you to have my personal property in my home including rugs etc. because I love you more than anybody else. You are like a sister or daughter to me and I know that my late husband Larry L. Stelzle would have wanted that too, as you are making my life worth living
Enforcement of an agreement to bequeath requires a note or memorandum thereof in writing (Personal Property Law, § 31, subd. 7). Nevertheless, proof of an oral agreement, if one was made, is permissible and the agreement will be enforced if a written memorandum thereof exists (Matter of Manley, 198 Misc. 111). While it may be argued that the memorandum is precatory, expresses no contractual intent and lacks any element referring to consideration or promise to be performed on the plaintiff’s part, yet in the light of proofs of surrounding circumstances as they may be received on .the trial, the memorandum may become capable of a different construction, particularly in relation to the reference to plaintiff’s contribution to the condition and state of the life of the deceased. However, 'such a memorandum becomes useful if the oral agreement claimed by the plaintiff in her brief to have been made is pleaded and proved. At the trial, the question may be then determined whether the memorandum, in all the circumstances, is sufficient to prevent the interposition of the Statute of Frauds.
The motion is granted, with leave to serve an amended complaint within 20 days after service of a copy of this order with notice of entry thereof.
