
    Elvira Dill, Resp’t, v. John H. Harbeck et al., Executors of Elvira Harbeck, Deceased, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    1. Contract—Oral promise as to land When not within statute of FRAUDS.
    The testatrix, a lady of wealth, estranged from her family for years, suffering from a painful disease, that must speedily prove fatal, made an oral contract with her favorite niece, to give her a dwelling-house, on condition that a home should be there created for her benefit and during her lifetime. The testatrix purchased the house in her own name, and the said niece (the plaintiff) went to reside with her upon the terms and conditions agreed upon, and continued until the testatrix, having made up the differences with her sons, went to live with them a few weeks before her death. Held, that the contract had been fulfilled by the niece, and the estate of testatrix must answer, according to the conditions of the contract. That the case was not within the statute of frauds.
    2. Same—Evidence—Competency of.
    The admission of the evidence of the increased expense of sustaining plaintiff’s household, in consequence of the contract with testatrix, was probably competent.
    
      Appeal from a judgment in favor of plaintiff entered upon the verdict of a jury rendered at the Kings county circuit, and from an order "denying a motion for a new trial made at special term upon a case.
    This action was brought to recover $14,500, the amount which it was alleged the defendants’ testatrix agreed to pay to the plaintiff, upon the following state of facts : The plaintiff was a niece and namesake of Elvira Harbeck, wife of William H. Harbeck, of the city of _ New York. Mrs. Harbeck, until about the year 1868, resided with her husband in the city of New York, when differences having arisen, she separated from him, and thereafter, and until the time of her death, resided apart from him. At the time of the separation there were four living children, and of whom three, namely, the defendants, John Henry Harbeck and Henry H. Harbeck, executors, and Evelyn Auffmordt were living at the commencement of this action, and a daughter, Elvira, who died unmarried at Paris, in France. During the lifetime of the daughter Elvira, Mrs. Harbeck lived with her, but separated herself from her other children, and for about fifteen years, until shortly before her death, held no intercourse or communication with them. About the month of October, 1883, it appears that Mrs. Harbeck had come to live in Brooklyn, near her nieces, and while so living, separate and apart from her family, and her health .having failed, and knowing that she was suffering from an incurable disease, which was likely to terminate fatally at a very early period, and feeling the need of a home, and being possessed of large wealth and pecuniary ability, and being willing and desirous to make some provision for the plaintiff, and being at the time in relation of cordial friendship with the plaintiff, who was her namesake, proposed to the plaintiff that she would purchase a house in the city of Brooklyn, where the plaintiff resided, living and boarding in it with the plaintiff, paying her own board and defraying the principal expenses of Mving herself, and that if plaintiff, with her family, would come and reside with her in such house, that she would give her either the house to be so purchased, or the amount of the cost of it.
    The plaintiff, before that time, resided comfortably in apartments with her family; but, relying on and induced by the promise and agreement of Mrs. Harbeck, made, as aforesaid, and her promise and agreement to give to plaintiff the house or the amount of the cost of it, accepted and agreed to the proposition. In pursuance thereof Mrs. Harbeck purchased in her own name a house in Brooklyn, which was approved by the plaintiff, for the price of $14,500, and plaintiff and her family removed from her apartments and went to reside with her upon the terms and conditions •as agreed, and continued to reside with her until about the first of October, 1884.
    About the last named date Mrs. Harbeck left the house, having, as would appear, become reconciled with her sons, and went to reside in New York city, and there died November 16, 1884, about seven weeks after leaving the plaintiff, and leaving a will, whereby she devised the house in question to her sons, the defendants, her executors.
    
      Fisher & Voltz, for resp’t; Wing, Shoudy & Putnam, for .app’lts.
   Pratt, J.

We are not able to agree with, appellants that the evidence in support of plaintiff’s case is vague or unsatisfactory; on the contrary, it is so full and convincing that in our opinion a verdict might properly have been ordered for plaintiff.

The testatrix, a lady of wealth, estranged from her family for years, suffering from a painful disease that must speedily prove fatal, might well contract to give to her favorite niece a dwelling-house on condition that a home should be there created for her benefit and during her life-time.

It also appears that in her conversations the testatrix ■said “Elvira ” meaning plaintiff, “is the only niece I have that needs a house and I am going to give her one.”

It is not necessary to recapitulate the evidence which is •.abundant and, we think, uncontradicted, for the conversation of plaintiff as testified to by defendants is not necessarily inconsistent with the plaintiff’s claim.

The only subject of that conversation was the small balance unpaid of the house expenses, and it would be to give an undue effect to the language to apply it to the matter now in controversy.

Disturbed in mind by the distressing disease, which would lead her to magnify the ordinary irritations of fife, it is not surprising that causes of disagreement should ultimately arise between the testatrix and her niece; and when her sons returned to her a few weeks before her death after an estrangement of eighteen years, during which they had no intercourse, nothing could be more natural than that in the joy of that reconciliation her contract with her niece should be forgotten to the advantage of the sons.

But the plaintiff’s rights did not depend upon the continuance of the aunt’s favorable disposition. The contract had been fulfilled by the niece and the estate of testatrix must answer according to the conditions of the contract. The case is not within the statute of frauds.

The admission of the evidence of the increased expense of sustaining plaintiff’s household in consequence of the-contract with testatrix was probably competent. If not, it was harmless. Without that evidence the testimony would have warranted an instruction to the jury to find a verdict-for plaintiff.

Judgment and order denying new trial affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  