
    Anna Kine, Appellant, v. James Farrell, Individually and as Executor and Trustee under the Last Will and Testament of Thomas Kine, Deceased, and Others, Respondents.
    
      Agreement by a husband with his wife not to alter a will — it will be enforced in equity as a resulting trust although a new will has been, without objection on her part, admitted to probate — a satisfaction by her of a mortgage on his property is a good consideration therefor.
    
    Where differences arise between a husband and wife concerning a mortgage covering premises owned by the husband, which mortgage has been assigned to the wife, although the consideration for the assignment has been paid by the husband, an agreement entered into between the parties, by which the husband agrees that, in consideration of the discharge of the mortgage, he will not change, alter or revoke a will theretofore made by him, leaving all his property to his wife, will be enforced', it appearing that there was at least some basis for the wife’s assertion of a claim of ownership in the mortgage.
    Where, after the wife has performed her part of the agreement, the husband makes another will, making a different disposition of his property, the fact that the second will was admitted to probate without objection on the part of the wife, who was a party to the proceeding, does not estop her from maintaining an action to enforce her rights under the agreement.
    
      Semble, that the second will having been regularly executed, the surrogate was bound to admit it to probate; but that equity, to enforce the performance of the agreement, will impress a resulting trust upon the legal title and compel a conveyance of the legal title in execution of such trust.
    Appeal by the plaintiff, Anna Fine, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Few York on the 17th day of October, 1901, upon the decision of the court rendered after a trial at the Few York Special Term dismissing the complaint upon the merits.
    
      Horace K. Doherty, for the appellant.
    
      Dudley R. Horton, for the respondent Catherine Farrell.
   Laughlin, J. :

This is a suit in equity brought by the widow of Thomas Fine, deceased, against his executor and trustee, devisees and legatees to enforce plaintiff’s rights under an agreement with her husband by which he, in consideration of the discharge by her of a mortgage for $8,000 on premises owned by him, covenanted that he would not change, alter or revoke a will theretofore made by him leaving all his property to her. He did revoke thé will and made another, devising the premises from which she discharged her mortgage to his executor in trust to pay the income thereof to plaintiff during her life with the remainder over to his nephew, subject to the payment of certain legacies aggregating $5,010, which were made a charge thereon. ,

The last will was duly. admitted to probate, and, because the plaintiff was cited and made no protest, it is claimed that she is estopped from maintaining this action. The testator having been competent to make a will* and the second will having been executed voluntarily and in conformity with all the requirements of law, it was the duty of the Surrogate’s Court to admit it to probate and the probate could not have been successfully opposed by plaintiff on the ground that it was executed in violation of his agreement with her. (Code Civ. Proc. § 2623; Matter of Gloucester’s Estate, 11 N. Y. Supp. 899; Giles’ Estate, 11 Abb. N. C. 57; Matter of Keep, 17 N. Y. St. Repr. 812.) The will is, therefore, valid and transfers the legal title to the property.

In a proper case, however, such legal title may be impressed with a trust in favor of a party having prior equities. The agreement between, the plaintiff and decedent was in writing. It recites a good consideration, is free from ambiguity and is neither inequitable or against public policy. Ho superior equities have intervened.. In these circumstances a court of equity will decree that the legal title is impressed with a resulting trust in favor of the plaintiff for .the performance of the testator’s agreement with her and the agreement will be specifically enforced by requiring a conveyance of the legal title to her, in execution of such trust, and by enjoining the beneficiaries under the will from questioning her title. (Parsell v. Stryker, 41 N. Y. 480 ; Shakespeare v. Markham, 10 Hun, 311; affd., 72 N. Y. 400; Godine v. Kidd, 64 Hun, 585 ; Brantingham v. Huff, 43 App. Div. 414; Gates v. Gates, 34 id. 608 ; Winne v. Winne, 166 N. Y. 263; Edson v. Parsons, 155 id. 567; Ellerson v. Westcott, 148 id. 149.)

It is also claimed that the agreement upon which the action is based is void for want of consideration. The agreement recites that differences have arisen between the parties with respect to the $8,000 mortgage which is held in her name by assignment; that it is agreed that she will release and surrender up all claim or right thereto and cancel and discharge it of record. It is not disputed that plaintiff fully performed the agreement on her part, and that her husband had the benefit of the extinguishment of the lien upon her premises ; but it is contended that the plaintiff had no interest in the mortgage and that, therefore, the agreement was without consideration. More specifically, the contention is that the assignment was never delivered to plaintiff and that her husband paid the entire consideration therefor. There is no evidence that the decedent ever so claimed. It does not appear what the controversy between plaintiff and her husband over the mortgage was, or whether it involved the right or ownership of the whole or of a part thereof or of some collateral agreement.

The plaintiff and her husband lived together for nearly .fifty years. The testator purchased the premises originally for $1,000 cash, subject to this mortgage. He borrowed $500 of the purchase price from his mother, and plaintiff repaid it by her personal services. Her husband subsequently paid the holder of the mortgage the amount owing thereon and took an assignment thereof in plaintiff’s name. The assignment was recorded and plaintiff saw it in her husband’s possession in their house and he told her that he had made it for her. She was old and nearly blind, but was aware that the mortgage was upon the premises where they resided.

It is unnecessary to determine whether plaintiff actually owned the mortgage or in fact had any interest therein. If there was any ground for a bona fide claim on her part, either of ownership or of a lesser interest, the courts will not look into the merits of the claim but will enforce the rights voluntarily given in settlement thereof. (Rector, etc., v. Teed, 120 N. Y. 583; White v. Hoyt, 73 id. 505 ; Dunham v. Griswold, 100 id. 224; Andrews v. Brewster, 124 id. 433 ; Sears v. Grand Lodge A. O. U. W., 163 id. 379.)

On these facts it is evident that there was some basis for the assertion by plaintiff of a claim of ownership in this mortgage. It stood in her name and the assignment was recorded, which was evidence between the parties that it ha,d been delivered and had become a completed gift. The assignment standing in her name there was also ground for the claim that no trust resulted in favor of her husband, notwithstanding the fact that he paid the consideration. (Real Prop. Law [Laws of 1896, chap. 547], §§ 74, 205, 240.)

Neither of these claims was so manifestly frivolous as to indicate that it was asserted in bad faith or to justify the court in declaring the compromise agreement void. Furthermore, it is not perceived how the compromise agreement can be ignored until it is rescinded and plaintiff is restored to the position she was in prior to performance on her part.

It follows that the judgment should be reversed and a new trial ' granted, with costs to appellant to abide the event.

Van Brunt, P. J., McLaughlin, and Hatch, JJ., concurred.

Judgment reversed, new trial granted, costs to appellant to abide event.  