
    Clara F. Apollonio, Respondent, v. Edward D. W. Langley, Individually and as Administrator de Bonis non with the Will Annexed of Frances A. Skinner, Deceased, Appellant.
    
      Oral contract by a party, since deceased, to repay by a mil money advanced to her — , character of proof required, in its support.
    
    When, in an action brought to recover upon , an oral contract, whereby it was. alleged that the defendant’s testatrix had agreed to repay by her will certain expenses for travel, board and wearing apparel incurred by the plaintiff in con- ' nection with two ocean voyages taken by her as the friend and companion of the decedent, the evidence is not sufficient to establish the making of the alleged contract, considered.
    
      Contracts of such character are looked at with grave suspicion, are closely scrutinized and are only sustained by the strongest evidence.
    If based upon parol evidence, such evidence must be given or corroborated in all substantial particular's by disinterested witnesses.
    Public policy demands that the rule as to the character of the proof required in such a case shall not be relaxed or frittered away.
    Hirschberg, P. J., and Hiller, J., dissented.
    Appeal by the defendant, Edward D. W. Langley, individually and as administrator de bonis non with the will annexed- of Frances A. Skinner, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of April, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Clarence L. Barber [Edward W. Davidson with him on the brief], for the appellant.
    
      G. A. McLaughlin [Charles B. Blair and Franklin, D. Peale with him on the brief], for the respondent.
   Jenks, J.:

■ The action is upon a contract of the decedent to repay by her will certain expenses of the plaintiff incident to two trips taken as the friend and companion of the decedent to the island of Bermuda. The plaintiff claimed for actual cash outlay in round numbers $500 for her travel and board, and $1,300 for wearing apparel, and she recovered a full verdict.

It appears,that the plaintiff’s husband earned about $2,000 a year, and that the decedent was an old married woman in good health, possessed of considerable property, receiving a large income, living in comparative luxury, and, according to the plaintiff, honest, honorable and upright. The women were intimate friends. The plaintiff’s case is made out almost- entirely by the testimony of the plaintiff’s husband as to two oral declarations made to him by the decedent on the eve of each trip. It seems strange that a woman of such character, and possessed of ample means, should ask a dear friend, in most moderate circumstances, to advance for such a purpose what was a large sum of money to the plaintiff, and but an inconsiderable sum to her, upon condition that it should be repaid by her will. It seems an extraordinary credit, in the absence of any reason therefor. • ■

It seems natural that if such a woman made such a promise she Would keep it. There appears no reason why she should thus deceive and mulct her dear friend. They did not become estranged. The decedent did not forget; she remembered the plaintiff in her Will (executed after these times), purely as a matter of affection, by providing that in the event of the death of the decedent’s husband before the decedent the plaintiff' should receive one-sixth of the residue of the estate. .She who was thus moved by affection would hardly repudiate a debt due the object of her affection. It is curious that although the plaintiff within a few months after defendant’s death knew of the contents of the will, which was ineffective as to her because the contingency which favored her did not comp to pass, she did not file any claim until a year thereafter. It is strange that, although the plaintiff’s husband wrote to the administrator asking for. a return of the presents made by his wife to the decedent, he made no mention of the failure of the decedent to discharge her debt. It is strange that the plaintiff, months before she filed her claim, writing a cordial letter to the administrator to ask for a keepsake of the dead, should say that a ring and a pink enamelled pin would “ make' my happiness complete.” It is passing strange that she should write: “ In writing this I bear in mind what Mrs. Skinner said to me and to Mr. Apollonio upon more than one occasion — that I should be remembered substantially in her will. That I did not receive anything by devise was, I am frank to admit, a great disappointment to me,” and yet omit all reference to the fact that she had paid out a large sum of money upon the express promise that it should be repaid her by the provisions of that will. If by the said expression which follows the request for- the trinkets in memoriam, “ In writing this I bear in mind,” etc., the plaintiff intended to express some reason why her request should be met, she certainly had a more cogent reason in the fact that her debt had never been paid.

If the decedent had said to the plaintiff or to the husband that she proposed to remember the plaintiff in her will, she did so, although the bequest was contingent. And I can conceive that in appreciation, or even expectancy of remembrance, the plaintiff might have accompanied the decedent, beyond the dictates of mere friendship, and have incidentally expended her money, in the calculation that she would be compensated by the will.

So far as the plaintiff seeks to establish a contract by the decedent that she .would reimburse her by her will, I think that she failed in her'proof. That proof, as I have said, practically consists of the testimony of her husband to certain oral declarations of the decedent. There is no substantial corroboration. Even such proof is not without contradiction as to the occasions when these declarations are said to have been made. Contracts of this character are looked at with grave suspicion, closely scrutinized, and only sustained by the strongest evidence. (Shakespeare v. Markham, 72 N. Y. 400; Roberge v. Bonner, 94 App. Div. 342; Rosseau v. Rouss, 180 N. Y. 116.) In the latter case, citing the authorities, and among them Shakespeare v. Markham (supra), Vann, J., says: “ As ‘such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises,’ we have declared that they ‘ should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses.’ (Hamlin v. Stevens, 177 N. Y. 39; Mahaney v. Carr, 175 N. Y. 454; Ide v. Brown, 178 N. Y. 26; Edson v. Parsons, 155 N. Y. 555; Shakespeare v. Markham, 72 N. Y. 400.)” Public policy demands that the rule as to the character of proof shall not be relaxed or frittered away.

If the husband’s testimony satisfied the standard, yet it could not sustain this verdict which necessarily includes the $1,300 paid out by the plaintiff at various times for her attire. For he but testifies that before each journey the decedent said that any expense incurred by the plaintiff by reason of going with thé decedent would be more than returned to her. The plaintiff must have been clothed in any event, and hence expenditures for clothing were not strictly an expense incurred by the journeys, save so far as the plaintiff’s wardrobe thereby required addition or change. These expressions of the decedent would not necessarily imply her intention to assume expenses for raiment, but only to return any outlay for travel and for maintenance while on the visit to Bermuda. There is nothing to justify the conclusion therefrom that the plaintiff might charge up against the decedent $1,300 for. dress when the other expenses for travel arid maintenance were but $500.

It is true that the husband did testify that on one of these occasions when his wife was trying on new shoes, and after he told the decedent that he had paid $12 for them, he added, “ There are other expenses attending this journey and they are quite extensive,” and that thereupon the decedent made this remark as to the expense. Büt, as I have said, this is not sufficient to establish a contract to pay $1,300 for the plaintiff’s clothes, and the decedent might naturally have thought that the husband referred to the cost of travel and of the stay in Bermuda. The context is significant. The husband testifies that he remarked, “ Well now, Mrs., Skinner, there are other expenses attending this journey and they are quite extensive, but what I dislike most of all is the fact that I shall be left alone this winter a number of weeks and in the event of my being ill or disabled I should have no one to care for me.” If he disliked; one circumstance “ most of all,” I may infer that he disliked the “ other expenses.” If the Other expenses which he then referred to ■were the cost of the clothes for the plaintiff, why should he dislikó such outlay provided he understood that the decedent was to return it? A man in his circumstances is not expected to send' his wife away on winter trips to Bermuda for pleasure, and even an advance of money for that purpose might have been disliked by him. But if the trip was to afford attire for his wife costing hundreds of dollars, thereby relieving him from a husband’s usual charge, why should he “ dislike ” such expenses ? The only possible explanation is that he disliked to advance the cost of the clothes; ' but this is hardly adequate if he expected that the decedent, who ■was well to do and financially responsible, would voluntarily relieve him from this usual marital expense.

I advise that the judgment, and order be reversed and that a new trial be granted, costs to abide the event.

Babtlett and Bich, JJ., concurred; Hibsohbebg, P. J., and Milleb, J., dissented.

Judgment and order reversed and new trial granted, costs to ! abide the event.  