
    Mary Wakley, Appellant, v. H. Prior King, as Executor, etc., of William Moore, Deceased, Respondent.
    Third Department,
    May 2, 1906.
    Executors and administrators — when contract made by decedent to secure concealment of immoral relations not procured by duress as matter of law.
    When it appears that a decedent, while of sound mind and strong will, in order to conceal his illicit relations with a woman and to-conceal the seduction by him of her daughter, made a contract under seal promising to pay an annuity to the woman and make her a bequest by will, both of which promises he subsequently fulfilled, the question as to whether the contract was extorted by duress should be left to the jury.
    Facts not constituting duress as a matter of law, considered.
    Appeal by the plaintiff, Mary Wakley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 2d day of December, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Warren Trial Term, and also from an order entered in said clerk’s office on the 14th day of December, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action is brought to recover an installment of $500 which became due upon a contract July 1, 1904, from defendant’s testator to the plaintiff. The contract was made under seal June 29, 1901, and provided for the payment of $500 each year for fifteen years from its date. The prior installments were paid. The testator died November 21, 1903. The contract also provided that the testator was not to revoke a provision in his will, dated June 29, 1901, in favor of the plaintiff. It recites as its consideration that the plaintiff has surrendered all the testator’s letters and writings in her possession and under her control, and will not make any demand or claim upon him, or his representative, growing out of any matters prior thereto, except a contract of August 8,1900, and that the payments to her shall only continue so long as she keeps said contract on her part, and shall be null and void in case of her default. The defendant was a married man, living with his wife and family, and for'about twenty years had maintained, secret illicit-relations with the plaintiff, a married woman living apart from her husband. He was about Sixty-seven years of age-at the time of his death, a man of strong mind and will, engaged in large business transactions, and had the personal direction and control of his business to the time of his 'death. He left • an - estate of - the value of $10.0,000. He discontinued his maintenance of the plaintiff -and ceased to visit her ‘prior to January 27, 1900, and at that time, in consideration of $12,000, she executed a general release to him.
    Prior to August 8, 1.900, she discovered" that he had seduced-her minor daughte'r, and a settlement was made by which the daughter, her husband and the plaintiff made a release to him, and he made an agreement with the plaintiff as trustee for the daughter to pay her $500 per year for twenty years. Prior to March, 1901, the plaintiff’s husband had threatened him with legal .proceedings,' and .about March 30,. 1901, the husband executed a release, to him and he paid the husband $10,000. About this time the plaintiff discovered that while he was maintaining relations with her lie. Was having illicit relations with lier sister, Mrs. Brown.. Many letters-were written by plaintiff to. him. His part of the correspondence was presumably returned to him when the contract in suit was executed, so" that but one side of the correspondence is produced. "She claimed that in order to save his good name' and to keep secret their relations and his relations . with the daughter and the sister, and to pacify the husband, she liad necessaraily expended a great part of the money she had received, and she demanded that he make proper reparation to the" sister and that he make some further provision for - her support, which correspondence 'finally resulted in the contract in suit and an agreement of the same date by which he was to p>ay to John D. Wakley, the brother of the sister,. in trust for the .latter, $1,500. Prior to the agreement in , suit, a so-called magnetic healer, at Buffalo, brought an • action against plaintiff for his services and his instructions "to her, and also alleged in his complaint that said Moore had seduced the plaintiff’s minor daughter,'and the plaintiff had consulted him with reference to the matter at various times, and was to pay him $10 for each consultation, and had had fifty consultations with reference to said matter, and ' demanded judgment for $590. In her- answer she denied that the treatment or instruction received by her was of any value, and denied the employment, or any agreement to pay him with reference to the matter of the daughter. After the contract in suit was made she wrote testator that there was an opportunity to settle that action- out of court, and advised with him whether the suit better he settled by paying $500 and. attorney’s fees, saying, “ what you and I know is that our affairs all told are better kept out of court. Tour reply will decide me, and if he won’t settlé for $500 before court begins I will pay the whole amount if you say so.” .His attorneys replied to this letter to settle and he would pay one-half the amount. She did settle and then claimed that the attorneys would not remit his half, and were resorting to unnecessary delays and requirements, -and in very vigorous language required that the money be paid at once. It was finally paid. After this claim was settled he paid several installments upon the contract in suit, and three days before his de.ath re-exeeut'ed his will and in it incorporated the provision which in said contract he had agreed to retain for the plaintiff’s benefit. The trial court felt that the contract in suit was obtained by duress, but placed its decision upon the ground more particularly that the contract was one for peace, and she had violated it by bringing up the Buffalo suit and the correspondence with relation to it. Several letters are in evidence written by Moore to the plaintiff in March, April, May, June, July, August and September, 1903, of a friendly nature, telling her of his bad health, and more particularly of the condition from time to time of his wife, who was then in a critical condition, and in the letter of September 21, 1903, he returns her a clipping relating to the Van Bensselaer estate. The provision in the testator’s will for her, and which was to be retained by the contract, relates to his interest in said estate. He tells her he returns the clipping, and she had better preserve it; that the name in it might be of, use.
    
      Chambers & Finn [J. A. Kellogg of counsel], for the appellant.
    
      Edward M. Angell, for the respondent.
   Kellogg, J.:

Whether the agreement in suit was obtained by duress was clearly a question of fact for the jury. This is especially so when we con-aider the voluntary payments’made by the testator upon it, and the -making of- his last w-ill three days before his death', of which she could have no knowledge until after his death, reaffirming to her the provision which he in this contract had agreed would not be revoked. It is not clear- that the letters written by the plaintiff were ranch different than would be written by the- ordinary woman who had given the greater part of her life, to' him, and it is not clear -that, she was demanding any more than, under all the circumstances, was a reasonable and adequate provision which he fairly ought to make for the wrong done her.- Neither is it ■" clear that in making the contract he was actuated by fear or was the subject of duress. It may be that the correspondence had .quickened his conscience and led him to believe- that he was not treating the plaintiff properly, in discarding her in her old age without further provision for her support.’ He was a man of strong, mind and will, and apparently able to take care of himself. He either destroyed his letters which were returned to him, or his estate has siippressed them, and the correspondence in evidence cannot be fully understood without drawing, inferences as to. what the letters written by him contained. Something may be inferred as to their contents from the -tenor of her answers to him,, and something from his letters which were written her after the contract in suit.was made. If he feared for his good name and valued it higher than the money involved, it . is evident, that his estate does not take the same view of the matter. It cannot be said as a matter of law that he was coerced into making the agreement, or that' it was anything more than what he deemed' a suitable and proper reparation to her under all the circumstances.' It cannot be said as matter* óf law that the correspondence with reference to the Buffalo suit was a violation of the contract in suit and-forfeited'her rights. She had the right to advise with him about -the settlement of the suit and to inquire whether he thought it ought to be settled in order to keep the scandal from coming to the public. It is evident that both of them had spent a great part of their lives in try^ ing to keep their affairs from the public. In any event,; after this correspondence and after he paid the money he recognized the agreement as binding by'continuing the payments upon it, and his correspondence showed a good feeling towards the plaintiff and his will indicates clearly that she was still the subject of his solicitude and that he desired to carry out his contract with her. It was error to direct a verdict against the plaintiff. The judgment aiid order should, therefore, be reversed and a new trial ordered, with costs to the plaintiff to abide the event.

All concurred; Smith, J., not sitting.

Judgment and order reversed and'new trial granted, with costs to appellant to abide event.  