Washburn v. Weeks — 44 N.Y. St. Rep. 922

Majority

p. 922

Isaiah Washburn, Ex’r, Resp’t, v. Sanford H. Weeks, Jr., Ex’r, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

■Contract—Agreement to make will.

A husband executed a bond, by which, in consideration of moneys of his wife which he had used, he agreed to leave her by will the sum of $4,000, and the life.use of $4,000 additional. By his will he gave her the use for life of all his property with power to use the principal if necessary. His entire property did not exceed $4,000. Held, that this did not satisfy the condition of the bond, although the wife stated that she was satisfied with the will.

Appeal from judgment entered upon the report of a referee.

Reference of a disputed claim against the estate of Joseph Matthews, deceased, upon a bond executed by him conditioned upon his making a will containing certain specified provisions in favor ■of his wife, of whom plaintiff is the executor.

Joseph C. Crane, for app’lt; Thomas Lawrence, for resp’t

On the 24th of March, 1868, Joseph Matthews executed to Sanford H. Weeks, Jr., a bond in the penal ■sum of $12,000 conditioned that the same should be void if Joseph Matthews left by his will to his wife the sum of $4,000 and the life use in four additional thousand dollars. On the same ■day Weeks assigned the bond to Mary F. Matthews. Joseph Matthews died in 1883 leaving real and personal property together amounting to $4,000. Mrs. Matthews died in 1885. The bond was given for money belonging to the wife which she let her husband have. The claim is a just one and no defense was proven to it. By Joseph Matthews’ will the use of all his property was given to his wife for life with power to use the principal if necessary for his wife's support. She was entitled to the $4,000 besides the use of $4,000 more. He had but one $4,000 and when he paid his debt there was nothing left. Neither pay-

p. 923

meat or satisfaction of the bond is established even if Mrs. Weeks .said she was satisfied, after her husband’s death, with his will.

The case is not one where the wife may be compelled to elect As to $8,000 her rights were independent of the will The testator, Mr. Matthews, was bound to leave his wife that sum, one-half in cash and the use of the other half. Nothing but payment will satisfy the bond or a release with full knowledge of the facts. The report of- the referee was confirmed on motion and judgment ordered. No other direction was needed to make a valid judgment in the case; the same should therefore be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.