
    Mary Henning, Resp't, v. Libbie Miller, Ex'rx, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    1. Evidence&emdash;Oral to contradict written instrument&emdash;Statute of frauds.
    Plaintiff and two sisters deeded to testatrix certain real property for a consideration therein expressed. After testatrix’ death plaintiff preferred ' a claim against her estate for the value of an undivided one-third of the land so conveyed, alleging an oral agreement on the part of deceased, in consideration of the conveyance, that the property should all come back to them in equal shares at her death. The claim was referred, and on the. trial evidence of the alleged oral agreement was received, and the referee reported in favor of the claim. Held, that the admission of such evidence was in violation of the rule which excludes evidence of an oral agreement in contradiction of a written instrument, and the finding was in violation of the statute of frauds.
    2.
    SAME 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. Appeal by the defendant from an order of the Erie special term, denying her motion to set aside the report of a referee, and for a new trial, on a case and exceptions, in the case of a refer- ence under the statute; and from the judgment subsequently entered on the report of the
    referee. TI. S. Heath, for app’lt;
    
      C. W. Sickmon, for resp’t.
   Dwight, P. J.

&emdash;In the lifetime of the defendant’s testatrix, Catherine Barbara Westel, the plaintiff united with her two sisters in a quit claim 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 ele- mentary rule of evidence which excludes evidence of an oral agree- ment in contradiction of a written instrument, in this case a deed under seal; and the finding was in equal violation of that pro- vision of the statute of frauds which declares that no estate 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 executed 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.

NeithSl^he ancient rule of evidence nor the ancient statute have been abrogated by recent decisions of the courts. See Woodard v. Foster, 45 St. Rep., 77; Hutchins v. Hutchins, 98 N. Y., 56, and the cases cited in both.

The order appealed from must be reversed.

Judgment and order appealed from reversed, and the motion for a new trial granted, with costs to abide the final award of costs.

Macomber and Lewis, JJ., concur.  