APPEAL by the plaintiff, Bertie Minehan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 15th day of July, 1910, upon the decision of the court, rendered after a trial at the Saratoga Trial Term before the court without a jury, dismissing the complaint upon the merits.
John B. Holmes, for the appellant.
Henry A. Strong [Isaiah Fellows of counsel], for the respondents.
Eliza Bagley and James, her husband, in 1902, executed mutual wills, each making the other sole devisee and legatee. James died in March, 1905, and Eliza became the owner of a farm and some personal property. The plaintiff was her cousin, and after the death of her husband, Eliza proposed to make her home with the plaintiff.
The plaintiff claims that in consideration of providing a home and caring for her Eliza agreed to make a will giving her all of her property at her death. Eliza spent a portion of her time at plaintiff's house and certain things were done for her comfort and welfare for about a year when she died.
Immediately on her death the defendant, who was her only
heir at law and next of kin, came to the plaintiff's house and a conversation was had respecting a will and the disposition of the property of the deceased. The plaintiff says that the defendant asked her if Eliza had made a will and that she told her she did not know, and that the defendant replied if a will had been made she knew the plaintiff would get everything, but if there was no will she, the defendant, would get it because she was the only heir at law, and that the defendant admitted Eliza had never liked her and never intended her to have any of her property, and that the defendant said: 'It is between me and you, * * * and the best thing we can do is to go out and settle it between ourselves.' Inquiry was made as to who the lawyer of the deceased had been, and they finally went to him and had him draw an agreement, under seal, which both signed and acknowledged, reciting that Eliza Bagley had died and that the plaintiff was a cousin and the defendant a niece, and that it was unknown whether Eliza had died intestate, and providing as follows: 'Now, therefore, in consideration of the sum of one dollar, each to the other in hand paid, the receipt whereof is hereby acknowledged, it is mutually covenanted and agreed as follows: That the estate, real and personal, of said Eliza Bagley, deceased, shall be divided equally between the parties to this agreement, and if it shall be ascertained that said Eliza Bagley left a last will and testament giving, bequeathing or devising to one of the parties to this agreement more than to the other, then each will execute to the other such transfers, assignments, bills of sale, deeds and other legal instruments as shall be necessary to carry into effect this agreement; it being understood and agreed that said Bertie Minehan shall receive one-half of the estate, real and personal, of said Eliza Bagley, deceased, and said Mary E. Hill shall receive the remaining half of said estate, real and personal; but this agreement shall not be construed to make either of the parties hereto in any way liable for any part of the estate of said Eliza Bagley, deceased, real or personal, which shall be given or devised by her to other person or persons than the parties to this agreement.'
The version of the defendant as to how this agreement came to be executed differs somewhat from that of the plaintiff, and
she says that the plaintiff told her that Eliza did not intend that she, defendant, should have any of her property, and that the defendant asked if Eliza had made a will, and the plaintiff replied that she did not know whether there was one or not, but if she had made one that she, plaintiff, would have all the property.
Eliza had not made any other will than the one which was inoperative because of her husband's death prior to her own decease, and her property passed to the defendant as sole heir and next of kin, but the defendant refused to surrender any part of the property to the plaintiff. This action was brought to compel the defendant to turn over one-half the personal property to the plaintiff and to execute a deed of an undivided half of the real property and for a partition, and resulted in ...