
    In the Estate of Cornelia Minturn, Deceased.
    
      (Surrogates Court. New York County,
    
      Filed June 24, 1887.)
    
    1. Will—Construction—Effect of release by beneficiary.
    By her will the testatrix directed her executor to pay the net income of her entire estate semi-annually to her brother during his natural life and on his death the remainder was disposed of in various legacies. Two weeks after the execution of the codicil to said will the said brother entered into an agreement with said testatrix by which after reciting the making of the will, etc., he covenanted and agreed that after hé had received the said income for three years he would execute and deliver to the said executors a release and discharge of the said income for any time beyond the said three years. This agreement which was under seal bearing the signature of said brother was among the effects of the testatrix which camfe into the hands of the executor. Held, that the said brother gave said agreement to dissuade the testatrix from making a will or codicil to that effect and that he and his heirs were bound by it.
    2. Same—Presumption as to time of delivery.
    The brother died seven years after testatrix, never having received any income, although $7,000 had been collected. In proceedings by the heirs of the brother to obtain the income for thé whole seven years. Held, that the testatrix’s possession of said agreement at her death was p rima facie evidence that it had been delivered to her by said brother in his lifetime. That they were only entitled to three years income.
    
      Petition by John C. Minturn, a beneficiary under decedent’s will, praying for a decree requiring the exectors to pay to him certain incomes alleged to be due and payable to heirs by the terms of that instrument,
    
      Vcmderpoel, Green & Gumming, for executor of John 0. Minturn, Turner, Lee & McClure, for petitioner.
   Rollins, S.

This testatrix died on September 29, 1882, having theretofore made and executed two written instruments.. which, in November of that year, were admitted to probate as together constituting her last will and testament. One of these instruments, the will proper, was executed on June 5, 1880; the other, a codicil, on April 19, 1882. By the eighth article of the earlier paper the decedent’s entire estate is given to her executors, in trust “for these uses and purposes, viz: to pay the entire net income thereof semiannually to my brother John 0. Minturn during his natural life, and, on the death of my said brother, to pay,” etc. Then follows a gift of legacies to relatives and friends of the testatrix and to certain religious and charitable institutions. The only substantial change effected by the codicil is the addition of the names of three persons to the list of the beneciaries specified in the eighth article of the will.

On September 7, 1886, John 0. Minturn filed in this court a petition, wherein he alleged that since November, 1885, he had received from the trustees no income of the residuary estate. He prayed for an order directing that such income as had accrued in their hands be paid to him, in accordance with the provisions of the will. To this petition the trustees interposed an answer. They admitted that they were in possession of accrued income, amounting to about $7,000, and proceeded to say that “ as to whether the petitioner is entitled to receive such income, and as to whether there is any other person entitled to priority of payment of the same, these respondents submit to the judgment of the court, after due consideration of all the facts.”

One of the facts above referred to is the following: Among the effects of the testatrix which came into the hands of her executors after her decease, was an instrument under seal bearing the signature of her brother John 0. Minturn and dated May 1, 1882, just two weeks after the execution of the codicil to her will. The instrument is in these words:

“This agreement * * * between John C. Minturn of the city of New York, party of the first part, and Cornelia Minturn of the same place, party of the second part: Whereas the party of the second part has heretofore made and published her last will and testament according to law, wherein and whereby she has, among other things, provided in substance that the income arising or to arise from her residuary estate should be paid to and received by the party of the first part during the term of his natural life, in case he should survive the party of the second part: Now, therefore, in consideration of the premises, and of the sum of one dollar to me in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, the party of the first part doth hereby covenant and agree that, after he shall have received from the executors of the will of the said party of the second part such income for the space of three years, he will execute and deliver, in due form of law, to the said executors, a release and discharge of the said income-for any future time beyond the said three years.”

The trustees asked the direction of the court as to whether, in view of the terms of the instrument above quoted, they would be justified in paying to the petitioner any portion of the income that had accrued since the expiration of the third year from the decedent’s death.

Upon the suggestion of the surrogate that all persons who might be affected by the decision of that question should be brought in as parties, and upon the discovery thereupon that the trustees were about to account, the consideration of Mr. Minturn’s petition was postponed until such account should be filed. It was filed on October 5, 1886. Five days later Mr. Minturn died. The representative of his estate now claims that in the decree about to be entered in the accounting proceeding, provision should be made for the payment to himself of all the income of the estate up to October 10, 1886.

It is insisted by counsel for the trustees that the agreement above set forth operated upon Mr. Minturn in his lifetime, and now operates„upon the executor of his estate, as an equitable estoppel of the right of either to claim any portion of the income now in the trustees’ hands. If the evidence establishes that, prior to the date of the agreement, the testatrix had formed a purpose of cutting down the interest of her brother John in the income of her residuary estate from an interest for life to an interest for three years, and that she was dissuaded from making a will or codicil for effecting that purpose, by John’s promise and assurance that if she should suffer her testamentary dispositions to remain unchanged, he would surrender all claims to income accruing after the expiration of three years from her death there can be no doubt that the application of John’s representative must be denied.

In Chamberlaine v. Chamberlame (Freem. Ch. 34 [1678]), a decedent had made a will whereby certain lands had been devised to his son and a pecuniary legacy had been bequeathed to his daughters. He resolved to alter his will and make these legacies a charge upon his lands, fearing that the personal assets of his estate might be insufficient for their satisfaction. Thereupon his son said that if no alteration should be made in the will, he would pay the legacies, himself. The will was left unchanged at the testator’s death. Held, that the son was bound to pay the legacies.

A testator made a will appointing his wife his executrix. He was Induced to substitute his son in place of his wife, upon his son’s promise to act as trustee for his mother’s benefit. Held, that a trust which equity should enforce was fastened upon the son’s conscience. Thynn v. Thynn, 1 Vern., 296 (1689).

A testator who had resolved to devise a part of his estate to his godson was prevailed upon to devise it all to his wife, upon her promise to give the godson such portion as the testator had originally intended him to have. The wife was held bound to fulfill her promise. Devenish v. Baines, Prec, in Ch., 3 (1689).

A testator devised lands to his brother, who was named executor of his will, and directed the payment of an annuity to his nephew. He would have charged this annuity upon the real estate if the executor had not promised to pay it. Held, that it became a charge in the same manner as if the will had so ordered. Oldham v. Litchfield, 2 Vern., 506 (1705).

A testatrix who had made a will whereby she had bequeathed a bond to A, afterwards made another by which she bequeathed such bond to B, upon B’s promise to give it, at her own death, to A. Held, that B’s declarations after the execution of the second will were admissible to prove such promise, and that after B’s death A could recover the bond of B’s representative. Brakeford v. Wilks, 3 Atk. 539 (1747)

A testator had left his will in the hands of A, his nephew, who was named therein as executor and residuary legatee. The testator having decided to reconsider its provisions and make a bequest of one hundred pounds to B, another nephew, A declared that no such change need be made, as he would himself, at his uncle’s death, pay B the sum intended for him. The testator died, leaving his will as originally written. Held, that the executor was bound to pay B one hundred pounds out of the residue. Reech v. Kennegal, 1 Ves. Sen., 123 (1748).

_ One who had made a will, giving legacies to his wife and sister, requested his executor, the residuary legatee, to see to it that those legacies were increased in a sum specified. The executor promised accordingly. The testator made no new will. Held, that a trust was thus created which equity could enforce. Barrow v. Greenough, 3 Ves., 152 (1796).

A was about to make a will bequeathing a certain fund to B. 0, who in the event of A’s intestacy would take his estate, dissuaded A from carrying out his intention, promising that in the event of his dying intestate, he (0) would take the estate as B’s trustee. Held, that upon A’s death the equitable ownership of his estate passed to B. Williams v. Fitch, 18 N. Y., 546 (1859). See also to similar effect: Stickland v. Aldridge, 9 Ves., 516 (1804); Mestaer v. Gillespie, 11 Ves., 638 (1805); Chamberlain v. Agar, 2 Ves. & B., 259 (1813); Owing’s Case, 1 Bland’s Ch., 370 (1826); Hoge v. Hoge, 1 Watt’s, Pa., 163 (1832); Podmore v. Gunning, 7 Sim., 644 (1836); Jones v. McKee, 3 Pa. St., 496 (1846); Russell v. Jackson, 10 Hare, 204 (1852); Wallgrave v. Tebbs, 2 K. & J., 318, 321 (1855); Church v. Ruland, 64 Pa. St., 432 (1870), Brook v. Chappell, 34 Wis., 405 (1874); Dowd v., Tucker, 41 Conn., 197 (1874); Williams v. Vreeland, 32 N. J. Eq., 135 (1880); O’Hara v. Dudley, 95 N. Y., 403 (1884).

Now there is nothing in the facts and circumstances of the case at bar calculated to take it out of the doctrine established in the cases above cited. To be sure there is here no direct evidence, such as was presented in many of those cases, of actual personal conference between the decedent and the beneficiary who was declared a trustee ex maleficio, nor is it shown by direct evidence that this testatrix ever avowed an intention of so altering her testamentatary disposition as to limit her brother John’s interest in her posthumous estate to the enjoyment of the income thereof for three years; but in place of such evidence we have an instrument under seal whose probative force is quite as effective.

Miss Minturn’s possession of that instrument at her death is prima facie evidence that it had been delivered to her by her brother John in his lifetime. Chandler v. Temple, 4 Cush., 285; Carnes v. Platt, 41 N. Y. Supr. Ct., 435 Boody v. Davis, 20 N. H., 140; Tunison v. Chamblin, 88 Ill., 379, 387.

The presumption that it was so delivered has not been overthrown, and, indeed, has been in no manner assailed.

The instrument bears the signature of John C. Minturn, and expressly recites that it is an agreement entered into between, himself and this testatrix. In the absence of any evidence to the contrary, it is fair to conclude from this recital that Minturn’s promise, which is here sought to be enforced, was not only made with the knowledge and approval of the testatrix, but was made in pursuance of an understanding, in the absence of which she would or might have revoked her will, or have supplemented it by a codicil which would have accomplished the very result contemplated by the instrument here in controversy.

The application of Mr. Minturn’s executor must be denied.  