135 N.Y.S. 428 | N.Y. App. Div. | 1912
This is one of the attempts so often made, but so seldom successful, to recover "a sum of money from a decedent’s estate upon the plea that the decedent during his lifetime had made a contract to include in his will a legacy to the claimant. The action has been thrice tried. On the first trial the jury disagreed; on the second the plaintiff had a verdict, which was set aside by the trial justice and his order to that effect affirmed by this court. (131 App. Div. 935.) The third trial has again resulted in a verdict for plaintiff, and the trial justice denied defendant’s motion for a new trial. From the judgment and order the defendant appeals.
The rules to be applied in weighing the evidence in support of claims like the present have been frequently stated by the Court of Appeals and have recently been reiterated in Holt v. Tuite (188 N. Y. 17) as follows: “I next pass in order to a consideration of the rules by which we are to determine the weight and force of the evidence and facts which have been recapitulated. Those rules must be reasonably familiar, for recently they have been formulated by this court after much consideration and with deliberation. They have emphasized with increasing decisiveness the caution with which claims of the class to which the present one belongs must be scrutinized and the high order of proof by which they must be sustained. The court has felt compelled to do this by the frequency with which such claims were arising and in view of the dangerous opportunities afforded through them of fraudulently sweeping the property of a dead person away from those to whom it would naturally pass. These rules must be general in their application and may not be too much shifted in any particular case to meet the necessities and equities, real or fancied, of that particular case.
“In Shakespeare v. Markham (72 N. Y. 400, 403) it was said that such contracts ‘are properly regarded with grave suspicion by courts of justice, and should be closely scrutinized, and only allowed to stand when established by the strongest evidence.’
“In Rosseau v. Rouss (180 N. Y. 116, 120), in speaking of an alleged contract sustained by many equitable circumstances and directly testified to by one interested witness who was corroborated by three witnesses testifying to admissions made by the decedent to the effect that he had made a contract resembling the one sworn to, the court said: ‘ Thus, the evidence relied upon to establish the contract is, first, the testimony of the mother, who tried to swear $100,.000 into the pocket of her own child, and, second, the testimony of witnesses who swear to the admissions of a dead man. The former is dangerous; the latter is weak, and neither should be acted upon without great caution. We have repeatedly held that such a contract must not only be certain and definite and founded upon an adequate consideration, but also that it must be established by the clearest and most convincing evidence. * * * We have been rigid and exacting as to the sufficiency of the evidence to establish them (such contracts) and have condemned the proof thereof ‘ through parol evidence given by interested witnesses. As such contracts are easily fabricated and hard to disprove because the sole contracting party on one ¡side is always dead when the question arises,’ we have declared that they ‘ should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses.’”
Tested by these rules the evidence in behalf of plaintiff falls very far short of establishing satisfactorily the contract upon which he seeks to recover.
The decedent was a Roman Catholic priest, possessed of some property, the amount of which does not appear. The plaintiff, at the time the contract is alleged to have been made, was a lad about eighteen years of age living with his mother at Washington, D. 0. Decedent although not related to. plaintiff seems to have been quite intimate with his family, and evidently was then and for some years afterwards much attached
The evidence is also unsatisfactory respecting the consideration for the alleged contract. As recited by the mother the consideration for'the gift was thus expressed by the decedent: “I will give you money for your clothes and provide for you in. my will the sum of $6,000, provided you will look after me whenever I want you to- while I am in America, or at any time.” Clearly this proviso called upon plaintiff to hold himself at decedent’s disposition for the full term of the latter’s life, and if at any time he failed to comply with the conditions, or incapacitated himself from doing so, the consideration failed and the decedent was released from his promise, and under the circumstances it rested with plaintiff to show that he had fully carried out the contract on his part. The alleged contract was made in 1892, and the decedent lived until 1902. There: is evidence that between 1892 and 1891 the plaintiff acted as a sort of secretary, valet and companion for .decedent whenever the latter was in this country. There is no evidence that he so acted after 1891, or that he had, after that date, any relations with decedent, and no reason or excuse is given why he so ceased to act. It is impossible to say that the contract alleged in this case has been established by the “ clearest and most convincing evidence,” or that there is any evidence to establish it except testimony of the character that has been condemned
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.