Ketcham v. Wilbur — 241 N.Y. 516

Majority

p. 516

Clara F. Ketcham, Respondent, v. Fred B. Wilbur, as Executor of Mary B. Hand, Deceased, Appellant. Mary D. Ketcham, an Infant, by Clara F. Ketcham, Her Guardian ad Litem, Respondent, v. Fred B. Wilbur, as Executor of Mary B. Hand, Deceased, Appellant.

Headnote

Decedent’s estate — action to recover upon alleged contract to bequeath amount sufficient to pay for care and support of infant and to leave to infant amount sufficient for maintenance and education during minority.

Ketcham v. Wilbur (2 cases), 214 App. Div. 754 , affirmed.

(Argued October 5, 1925;

decided October 20, 1925.)

Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 6, 1925, which affirmed an order of Special Term denying a motion by defendant for a dismissal of the complaint. The actions were brought to recover upon an alleged contract whereby, it was alleged, defendant's testator promised and agreed, in consideration of the adoption by the plaintiff Clara F. Ketcham of the infant Mary D. Ketcham, that she would leave by her will to said Clara F. Ketcham a sum sufficient to compensate her for the care and maintenance of said infant to the

p. 517

time of the death of testator and to said Mary D. Keteham a sum sufficient to support and educate her until she should come of age.

The following question was certified in both actions: “ Should the motion of the defendant to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, have been granted? ”

George H. Sears for appellant.

James E. Newell for respondents.

Order in each case affirmed, with costs, and question certified in each case answered in the negative; no opinion.

Concur: Cardozo, Pound, Crane, Andrews and Lehman, JJ. Dissenting: His cock, Ch. J., and McLaughlin, J., in last case.