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Wildman v. Jones

Supreme Court of New York, Appellate Division

May 17, 1912

JOSEPH E. WILDMAN, Respondent,
FRANK CAZENOVE JONES, as Executor, etc., of JOHN M. JONES, Deceased, Appellant.

APPEAL by the defendant, Frank Cazenove Jones, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of March, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 20th day of January, 1911, denying the defendant's motion for a new trial made upon the minutes.


Page 515

Clarence G. Galston, for the appellant.

John H. Hazelton, for the respondent.


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 A.D. 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.'

Page 516

'In Hamlin v. Stevens (177 N.Y. 39, 48) it was said: 'While such contracts are sometimes enforced by the courts, it is only when they have been established by evidence so strong and clear as to leave no doubt and when the results of enforcing them would not be inequitable or unjust.'

'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. C. Decedent although not related to plaintiff seems to have been quite ...

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