
    HENNING v. MILLER.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1893.)
    1. Quitclaim Deed—Parol Evidence to Contradict. In the lifetime of defendant’s testatrix, plaintiff and her two sisters united in a quitclaim deed to testatrix, their mother, of certain land, and in support of a claim against testatrix’ estate to one third of the land so conveyed, plaintiff proved an oral agreement on the part of testatrix, in consideration of the conveyance, that the property should come back to the three heirs in equal shares if testatrix should die. Meld, that such evidence was inadmissible.
    8. Same—Statute op Frauds. A finding in favor of plaintiff’s claim is also in violation of the statute of frauds, which declares that no estate or interest in lands shall be created or assigned unless by a deed or conveyance in writing.
    Appeal from special term, Erie county.
    Mary Henning presented a claim against the estate of Catherine Barbara Nestel, and from orders denying a motion to set aside the report of the referee allowing such claim, and for a new trial, and from the judgment subsequently, entered on the report of the referee, Libbie Miller, executor of Catherine Nestel, appeals. Reversed.
    Argued before DWIGHT, P. J., and MACOMBER and LEWIS, JJ.
    H. S. Heath, for appellant.
    C. W. Sickmon, for respondent.
   DWIGHT, P. J.

In the life of the defendant’s testatrix, Catherine Barbara Nestel, the plaintiff united with her two sisters in a quitclaim deed to their mother, the testatrix, of' all their, and each of their, right, title, and interest in and to a piece of land of six acres, in the town of Hamburg, for a consideration expressed in the deed. The three grantors were the owners of the land in fee simple, subject only to the dower right of their mother, the grantee. Since the death of, the latter the plaintiff has preferred a claim against her estate for the value of an undivided one third of the land so conveyed, alleging, as the ground of such claim, an oral agreement on the part of the deceased, in consideration of their conveyance, that the property should all come back to the three heirs in equal shares if she should die. The claim, being disputed, was referred under the statute. On the trial evidence was received of the alleged oral agreement under the objection of the defendant, and the referee reported in favor of the claim.

We think the defendant’s exceptions to the admission of the evidence objected to and to the findings of the referee were well taken, and furnished incontrovertible ground for the defendant’s motion to set aside the report. The admission of the testimony was in violation of the elementary rule of evidence which excludes evidence of an oral agreement in contradiction of a written instrument,—in this case a deed under seal; and the finding was in equal violation of that provision of the statute of frauds which declares that no estate or interest in lands shall 'be created or assigned unless by a deed or conveyance in writing.

In this case if the effect of the oral agreement upon the deed exeouted by the plaintiff be considered, it is manifest that it cuts down an estate in fee to an estate for life merely; and the finding gives effect to an alleged agreement to create or assign an estate or interest in remainder in lands, without a deed or conveyance in writing, but by an oral agreement only. The suggestion is that the oral agreement sought to be enforced was the consideration of the deed executed by the plaintiff; but this suggestion is without force upon the question here involved. Every agreement, whether oral or written, unless nudum pactum, is made upon some consideration, and the character of the consideration is not a test either of its admissibility in evidence or of its competency to create or convey an estate or interest in lands. Neither the ancient rule of evidence nor the ancient statute have been abrogated by recent decisions of the courts. See Woodard v. Foster, (Sup.) 18 N. Y. Supp. 827, Hutchins v. Hutchins, 98 N. Y. 56, and the cases cited in both.

The order appealed from must be reversed. Judgment and order op^ pealed from reversed, and the motion for a new trial granted, with costs to abide the final award of costs. All concur.  