
    William Lord, as Executor, etc., of Martha A. Cronin, Deceased, Appellant, v. John H. Cronin, Respondent.
    
      Written agreement to repay a loan if the creditor survives the debtor—the prior death of the creditor leaves the obligation to repay to be enforced, independent of the writing—usury.
    
    In an action brought to recover a sum of money loaned by the plaintiff’s testatrix to the defendant, her husband, it appeared that upon the making of the loan, the defendant executed an instrument, in which, after reciting the loan, he covenanted and agreed that in case of his death, before that of his wife, the amount so loaned should be a charge upon his estate, and be payable as a debt owing by him; and further that, in such ease, his personal representatives should convey to the plaintiff's testatrix his interest in certain real estate.
    The instrument further provided that if the plaintiff’s testatrix should not survive him, the instrument should he of no effect.
    
      Beld, that as the plaintiff’s testatrix had not signed the instrument nor expressed in writing any intention to renounce her title to the debt, and as the instrument had, by its terms, become of no effect, the parties were remitted to such obligation's and duties as might be implied from the loan and its non-payment, » and that the plaintiff was entitled to recover;
    That, as there was no certain agreement to pay excessive interest, the agreement was not usurious.
    Appeal by the plaintiff, William Lord, as executor, etc., of Martha A. Cronin, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 5th day of June, 1895, upon a dismissal of the complaint upon .the merits, directed by the court after a trial at the Rensselaer Circuit,' before the court and a jury on the 3d day of June, 1895, with notice of an intention to bring up for review upon such an appeal an order entered in said clerk’s office on the 5th day of June, 1895, allowing the defendant to amend his answer, and the decision of the court filed in. said clerk’s office on the 5th day of June, 1895..
    The-action was brought to recover $8,000 alleged to have been loaned by Martha A.'Cronin, deceased, to the defendant, her husband, May 2, 1892, upon defendant’s promise to- repay the same with' interest upon demand. The plaintiff proved that the wife ■loaned her husband the $8,000, and that thereupon the defendant executed and delivered to her the following instrument; .that thereafter ¡and before the ■ commencement of this action the wife died, and that the plaintiff was her executor.
    
      “ This agreement made this second day of May, in the year. of our Lord one thousand eight hundred and ninety-two, between
    “JohnH. Cronin and Martha A. Cronin, of the city of. Troy, . county of Rensselaer and State of New York, '
    “Witstesseth, that in consideration, that my wife, Martha. A. Cronin, has this day mortgaged certain premises of hers situated upon the northwest corner of Fulton and Mechanic Streets in said city of Troy, to Samuel P. McClellan, as executor of the will of Jane Calkins, deceased, for the sum of eight thousand dollars, at my request, and has loaned to me said sum so borrowed as aforesaid, now, in consideration thereof, I, John H. Cronin, husband of the said Martha A. Cronin, do hereby covenant and agree that if it shall occur to me to die before the decease of the said Martha A. Cronin, the said sum of eight thousand dollars so procured as aforesaid shall be a chafge upon my estate , and shall be paid as a debt owing by me, I having become a party to the bond given upon such borrowing; and I further agree that in such case my executor or administrator, or personal representatives, shall convey to the said Martha A. Cronin surviving me, all my one-lialf interest in the premises known by street numbers one hundred and seven Fourth street, and two thousand two hundred and sixty Fifth 'avenue, in the city of Troy, to have and to hold unto the said Martha A; ■ Cronin,, her heirs and assigns forever.
    “ But if the said Martha A. Cronin shall riot, survive me then this agreement shall be of no effect.
    “ In witness whereof, I, the said John. II. Cronin, have hereunto set my hand and seal in duplicate this second day of May, 1892.
    . “J. H. CRONIN.” [l. s.]
    
      
      Charles E. Patterson, for the appellant.
    
      Edwin Countryman, for the respondent.
   Landon, J.:

The wife made the loan to. her husband, and she took from him this instrument in which he promised, if she survived him, not only that she should be paid in full, but should be entitled “ to all my one-half interest” in certain real estate. The instrument further provided, “ But if the said Martha A. Cronin shall not survive me, then this agreement shall be of no effect.” That is to say, that she should not in such case be entitled to both payment and the land. The instrument is evidence of the loan, and, therefore, of his indebtedness to her. She did not sign the instrument; she did not agree that in case he survived her, the loan should be forgiven and the right to payment renounced. If that was her intention it would have been easy to express it in the writing. We cannot imply any such agreement upon her part. Its omission from the writing may have been because its insertion was not requested, or, if requested, was refused. The writing is the husband’s, binding him to payment and something more, if she survived, but binding neither if he survived. It contains no waiver by the wife of her right ■ to payment. By her prior decease the written agreement is made of no effect,” and the parties are remitted to such obligations and duties as the loan and its. non-payment imply.

We do not think the agreement usurious. There is no certain agreement to pay excessive interest. (Home Ins. Co. v. Dunham, 33 Hun, 415.)

The judgment should be reversed and a new trial ordered, costs to abide the event.

Merwin and Herrick, JJ., concurred; Parker, P. J., and Putnam, J., dissented.

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