
    Anna F. Ryan, as Administratrix, etc., of Margaret Smith, Deceased, Respondent, v. John J. Halligan, as Sole Executor, etc., of Catherine Clark, Deceased, Appellant.
    Third Department,
    December 30, 1909.
    Decedents’ estates—contract — claim against estate — alleged promise of decedent in compromise of suit — insufficient evidence.
    When claims are presented against decedents’ estates, the courts will scrutinize sharply testimony as to transactions long past and will require a high degree of probability to establish obligations made out chiefly by statements in the form of admissions, which are easily capable of being misunderstood.
    Action against an executor to recover sums unpaid on an alleged contract made by his testatrix to compromise a suit threatened by her sister, the plaintiffs intestate, to set aside certain transfers of real estate to testatrix. It appeared that certain sums had been paid to plaintiffs intestate by testatrix, but defendant claimed the payments were a pure gratuity. Evidence of the alleged contract examined, and held, insufficient to support a- verdict for the plaintiff.
    
      Appeal by the defendant, John. J. Halligan, as executor, etc., from a judgment of the Supreme Court in "favor of .the plaintiff,' entered in - the office of the cleric of the county of Rensselaer on the. 15tli day of January, 1909, upon the verdict of a jury, and' also from an order entered in-said cleric’s office on the same day denying the defendant’s motion "for a new. trial made upon the minutes.
    
      William J. Hodden [Samuel Foster .of counsel], for the appellant.
    
      Á. F. Delaney [John B. Holmes of counsel], for the respondent.
   Smith, P. J.:

This is an action to recover certain unpaid sums' upon a contract alleged to have been made by. Catherine Clark, now deceased, with Margaret' Smith, also deceased, by wav of compromise and settlement of .a suit threatened by the latter on account of two- transfers of real estate to said Catherine Clark by one Mary Ann - Clark, said transfers b'eing claimed to be voidable.'on the ground of undue influence. All of said parties were sisters, and at the times of the transfers -and alleged compromise in April, 1893, there were also living of the family a brother, Matthew Clark, and another sister, Jane Halligan. Matthew died in November, 1903, leaving a son,' Joseph H. Clark, and Jane died in 1900, leaving two sons,'John J. Halligan, the defendant herein, and Joseph W. Halligan.. Margaret Smith died in 1903, leaving two daughters, Anna Ryan, the -plaintiff, and Mary Nolan. Mary Ann Clark died in 1893, soon after executing the transfers in "question, and Catherine Clark died in 1905. The plaintiff claims upon a compromise agreement for $10,000. This agreement is testified to directly by Joseph H. Clark, the only competent living witness claimed to have been present at the time. In further support of .plaintiff’s claim there is evidence by herself and her sister, and also- by two disinterested witnesses, as to admissions by'Cátheriñe Clark of making payments on a sum óf $10,000, or that she had agreed to pay Margaret Smith the-sum of $10,000 to avoid threatened'suit. It is. undisputed that sums amounting in all to about $4,500 were paid by Catherine Clark to this sister, and-the only question is as to whether stich payments were made in pursuance of -a valid contract to pay $10,000, or, as is claimed by defendant, were simply payments as a pure gratuity on account of an entire sum of $5,000 which Catherine or others of the family had promised to pay her sister. The jury found for the plaintiff and gave judgment for $5,500, the entire amount claimed to be still due on the $10,000 agreement.'

The defendant’s testimony in person was of admissions by plaintiff and her sister that Catlieriné Clark alone, or with Mary Ann Clark and Jane Halligan, was to give Margaret Smith $5,000 for a house, and that this amount had been wholly or almost paid. Defendant also' introduced a disinterested witness who testified to an admission by Margaret Smith that Mary Ann Clark and Jane Halligan had agreed to give her $3,000 towards buying a house. It appeared that several of these sisters had been in business together, and that Catherine Clark had helped various membérs of her family financially, including this defendant; that there had been several suits or proceedings instituted since the death of Catherine Clark with regard to her estate by her heirs, and that much bad feeling existed between different members of the family. It also appeared that in one of these suits both the plaintiff and her sister had made certain affidavits to the effect that Catherine Clark had paid Margaret Smith the sum of $4,500 in payment for what Margaret Smith paid and contributed towards buying lots known as A, B and C, purchased about 1865, which affidavits are not, apparently, reconcilable with the present claims of the plaintiff. Moreover, in considering the inherent probability of the contract sued upon regard must be had to the actual value of the property in question and the consequent value of any claim therein, that could possibly have been set up by Margaret Smith. The value of the property covered by the two deeds claimed to have been made under undue influence was testified to by a witness for plaintiff as being from $25,000 to $30,000, while the defendant and his witnesses placed its value at from $15,000 to $18,000. At the time of the alleged contract of settlement after the death of Mary Ann Clark her sole heirs were her three living sisters and one brother, so that if the deeds referred to had been set aside Margaret Smith would only have been entitled to a one-fourth undivided interest therein, that is, in property worth at the outside, we may assume, not more than $25,000. It is accordingly most improbable that any one would have agreed to give $10,000 to settle a disputed claim of some $6,250, and this glaring improbability is not, in our opinion, satisfactorily accounted for.

But if we give, full effect to the- testimony in the. case as to Catherine Clark having 'mentioned $10,000 as the sum she was to pay her sister it is difficult to avoid the conclusion that this sum must have included both the amount payable byway of compromise if. so agreed, and also a sum or sums which she had promised her sister by way of gratuity merely. . It appears that Catherine, as stated, had helped different members of her family, having, for instance, given her brother Matthew $3,000, and that her sister Margaret had expected or asked for some similar gift, so that the only reasonable explanation upon the evidence of any agreement to pay any sum as large as- $10,000 to Margaret is that such sum was the aggregate both of a compromise payment and of some gift. If, therefore, any part of this $10,000 claimed to have been promised was in fact a gift this action must fail on account of the lack of any consideration" for tlie promise. We cannot upon the evidence in the case support the verdict by assuming to separate the $10,000 ■ into two portions, one of which would be supported by a valid consideration, and then assume that the payments made, excepting one sufficient to prevent the running of the Statute of Limitations, were on account of the gift only. It.was undoubtedly competent for Catherine to make a valid contract of settlement with her sister even for an exorbitant amount if such amount were promised solely to avoid suit, but such a contract should be established by strong evidence in order to outweigh the natural improbability, of the situation. When claims are presented against the estates of decedents the courts will scrutinize sharply testimony as. to long-past transactions, and will require a. high degree of probability to establish obligations made' out chiefly, as in this case, by statements in -the form of admissions which are easily capable of being misunderstood. -

The judgment should be reversed as against the weight of evidence and a new trial ordered, with costs to abide the event.

All concurred.

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