
    VICTORIA P. WATSON, et al., Appellants v. MARY L. PINCKNEY, et al., Respondents.
    
      Deed of real estate to one party at the direction of another who pays the consideration—Trusts, express or implied—Undue influence over the execution of a will or a conveyance.
    
    The object of this action was to obtain a judgment of this court, to the effect, that certain pieces of real estate, the title to which, at the time of the death of Isaac L. Pinckney, stood in the name of his widow, Henrietta Pinckney, were equitably a part of the estate of Isaac L. Pinckney when he died. These pieces had been duly conveyed to Henrietta Pinckney at the request of her husband, who paid the consideration for the same. The plaintiffs claimed that the conveyances in question created a trust in said Henrietta Pinckney to consider and treat and dispose of the same, as the property and estate of Isaac L. Pinckney, under his last will and testament, in which he appointed the said Henrietta as sole executrix. The plaintiffs also claimed that said Henrietta Pinckney had accepted such grants on her promise that she should hold the said real estate in trust and hot as her own absolute property.
    The court held that no promise had been proved, and that if it had been so proved it would have been void, as also would have been the so-called and claimed trust. That if such an oral promise or oral trust had been established, it would not have been fraud on the part of the grantee to have refused to recognize the validity of either. The inference from the whole testimony in the case is, that Isaac L. Pinckney did intentionally what he did do, or cause tobe done, in regard to the conveyances, intending and meaning that his action in the premises should have its full legal effect.
    Before Sedgwick, Ch. J., and McAdam, J.
    
      Decided May 2, 1892.
    Appeal from a judgment entered upon findings, etc., made at special term.
    
      William J. Hardy, for appellants, argued:—
    I. Wherever persons maintaining relations of confidence to each other, have dealings, in the course whereof one obtains a benefit from the other, and the transaction is impeached, it is incumbent upon the beneficiary to establish its righteousness by affirmative proofs. In ordinary cases, the donee in accepting a gift assumes the burden of showing whenever called upon that the donor knew what he was doing and intended that his act whereby the gift was conferred should have the operation claimed for it. And where the relations between the donor and donee were of a fiduciary character, it is necessary for the latter to show further, that the donor’s intention to confer the gift was fairly produced. While equity does not deny the possibility of valid transactions Between the two parties, it raises a presumption against the validity of every transaction Between them by which one obtains a possible benefit, and casts upon that party the burden of proving affirmatively his compliance with equitable requisites, and of thereby overcoming the presumption. The principle is applied with great emphasis and rigor to gifts, whether they are simple bounties, or purport to be the effects of liberality based upon antecedent favor and obligations. Contracts made upon a valuable consideration are not scrutinized with quite so much severity as gifts, but even they are subjected to the operation of the principle and must conform to its requirements. The courts have always been cautious not to fetter this useful jurisdiction by defining the exact limits of its exercise, and have carefully refrained from defining the particular instances of fiduciary relations, in such a manner that other and perhaps new cases might be excluded. It is settled by an overwhelming weight of authority that the principle ■extends to every possible case in which a fiduciary relation exists as a fact; in which there is a confidence reposed, which invests the person trusted with an advantage in treating with the person so confiding. And the rule is not restricted in its application to cases in which by reason of the superiority of one of the parties a domination or duress is imported. It is general in its scope and embraces every case in which a benefit is obtained from one who ■ trusts or confides in the beneficiary, and without assuming that there was in fact either duress or undue influence, it imposes upon the beneficiary the obligation of showing that he has not unjustly or unfairly practiced upon his benefactor. If the transaction appears to have had its spring and origin in the relation of confidence, if it appear that some trust reposed was a controlling ingredient in the motive of the one from whom the bounty proceeds, then the one who has profited by the trust or confidence acquires his advantage cum onere. The one who impeaches the result need only show that a benefit has arisen out of confidential relations, and this once appparing, the burden is thrown upon the defendant who seeks to maintain the benefit. Where a person through the influence of a confidential relation acquires title to property or obtains an advantage which he ought not in equity and good conscience to retain, the court to prevent the abuse of confidence will convert him into a trustee, and compel him to restore what he has unjustly acquired or seeks unjustly to retain. Hoghton v. Hoghton, 15 Beav., 300; Rhodes v. Bate, 1 L. R. Ch. App., 252 ; Dent v. Bennett, 4 My. & Cr., 269; Billage v. Southee, 9 Hare, 534-540; Miller v. Simons, 72 Mo., 669; Bigelow on Fraud, p. 354 (ed. 1888); I. Story Fq. Jur., §§ 307, 311,218 ; II. Pom. Eq. Jur., §§ 955-957, 963; Fisher v. Bishop, 108 N. Y., 28; Case v. Case, 49 Hun, 83; Weller v. Weller, 44 Ib. 176, et seq.; Boyd v. De la Montaigne, 73 N. Y., 502; Bergen v. Udall, 31 Barb., 9 ; Carpenter v. Mosher, 32 State Rep., 82.
    II. The wisdom of the rule of evidence in these cases was never more highly signalized than by the facts here. The proofs are clear and strong that the husband never-intended that the deeds should operate as absolute gifts; that he never permitted the deeds to interfere with his use and enjoyment of the properties; that he never in fact vielded up or parted with his interest in the houses to the extent required in gift; and on the other hand, that his wife never construed the transactions as gifts; that she herself never enjoyed the use or benefits of the lands; and that she never, until shortly prior to this action, asserted any claim either verbally or by conduct, that was inconsistent with her husband’s title. It is not debatable that Isaac L. Pinckney was moved to place these titles in his wife by the fact of her being his wife; that he was affected by the confidential relations that existed between them ; that in trusting her with these lands and the performance of his wishes in regard to them, he confided in her as his wife ; and that he would not have caused these titles to he conveyed to her had she not been his wife, had he not so confided in and trusted her, and had she not by her previous fulfillment of similar trusts, tacitly or passively encouraged him to further entrust to her the titles in suit. And she thereby accepted and sanctioned as obligatory upon her conscience, the provision he was making for his children after her ; and made with him a, perhaps unspoken, engagement to hold the property for their benefit.
    III. Of course, the testator was free to give these properties to his wife ; but that he did so is not shown ; and such a gift can only be established by <e evidence in addition to that derived from the execution of the instrument conferring the gift.” Weller v. Weller, 44 Hun, 176. The defendants can make good their claim to the properties in suit, only by showing affirmatively that the testator at the time he conferred the title to them upon his wife, understood fully the nature and effect of his act, and clearly intended that his act should operate as an absolute gift of the properties to her, and that she herself used no unfair means to produce such intention in him; or in the alternative, that she did not, in finally claiming a fee simple in the properties, seek to obtain or retain an advantage that her husband did not intend to confer and that she was not entitled to retain in equity or good conscience. These proofs she has not made, and cannot make. An absolute gift requires a renunciation by the donor, and an acquisition by the donee, of all interest in, and title to the subject of the gift. A portion cannot be retained, and the remainder disposed of. And nothing could be plainer than that, neither the testator nor the defendant intended or contemplated that he had renounced, or that she has acquired an unqualified interest in, and title to these properties. Curry v. Powers, 70 N. Y., 217; Rosenburg v. Rosenburg, 40 Hun, 93 (and cases cited).
    IY. And in this view, that the burden was upon the defence to show that the properties were gifts from Mr. to Mrs. Pinckney, etc., there was no evidence whatever produced at the trial to support the findings, to the effect that the testator caused the respective houses named in said findings to be conveyed to his wife “in fee simple absolute.” Gift cannot be made to rest upon the conveyance ■ alone ; and the mere deeds are wholly without color in a case such as this. There Avas never any dispute about the fact of the execution of these deeds, or that Mrs. Pinckney Avas named as grantee in them. The issues are whether or not the donor, Mr. Isaac L. Pinckney, avIio bought and paid for the properties, fully understood and appreciated the legal effect of his wife’s being so named as grantee in these conveyances; whether or not he intended in causing her to be so named as grantee, that she should acquire the full legal and equitable titles to the properties “ in fee simple absolute; ” whether or not if he so understood and so intended, such intention was fairly and justly produced; and whether or not if he intended to reserve any interest in the said property, his widoAv is now giving effect to such intention, or is acting unconscionably in claiming rights that he had no purpose of conferring. Upon these issues, the affirmative lay Avith the defendants, and no evidence having been adduced to show what were the transactions that resulted in Mrs. Pinckney’s being named as grantee in these deeds, there is no evidence to support the findings enumerated, and therefore the exceptions to such findings must be sustained. Nay, more, Mr. Pinckney having beyond dispute attached some reservation to the conveyance of the properties to his wife, it is, in itself, an abuse of confidence for her, now that death has sealed his lips, to maintain silence as to her transactions with him.
    Y. The facts sufficiently show: (1.) That Isaac L. Pinckney did not intend to part with, and did not, in fact, part with all his estate in these properties in causing them to be conveyed to his wife; (2.) That he did not intend that the conveyances of these properties to his wife should operate as absolute gifts of the same to her ; (3.) That, if the conveyances be construed as operating to this effect, then he did not fully understand the nature of his act in causing the conveyances to be so made; (4.) That, in so far as the husband intended to qualify the gift and attach a limitation to it, he was reposing a trust in his wife, which was begotten of a generation’s length of fond and confidential relations with her ,• (5.) That, if his widow now claims inconsistently with this limitation upon her husband’s gifts, she is claiming a benefit that he did not know he was conferring, and did not intend to confer ; and (6.) Such a claim by her involves an abuse of her husband’s confidence in her as his wife ; wanting which, the conveyances would never have been made ; and, as • such, it contravenes equity and good conscience. When the testator made his will, he intended that all he then had, and he and his wife both considered that the properties in suit were his, should be equally subjected to its provisions. And the acceptance by his wife of the trust, provisions of, and executorship and trusteeship under, this will, and her subsequent conduct under the will in treating all the properties as one entire estate, derived from the testator, establish her assent and make her a party to an understanding and agreement with her husband, the terms of which are declared in his will, and set forth in the complaint. And a court of equity will interfere to exact the utmost good faith (uberrima Jides) in the fulfillment by her of this agreement in order to prevent her taking any undue advantage of the unlimited affection, duty and confidence of her husband. Such an interposition is not intended to prevent an act of bounty, nor is the natural influence flowing from such relations discountenanced by the court, but it is an inseparable condition that this influence should be exerted for the benefit of the person subjected to it, not for the advantage of the person possessing it, and the latter must show that a reasonable use has been made of that confidence, and that no unconscionable advantage has been taken. The judgment should be reversed and the conveyances to Mr. Pinckney of the properties described in the complaint should be decreed not to have been intended by the testator as absolute gifts to her, but as conveyances to the use of himself and herself for their lives in joint tenancy, with remainder to his and her children in fee, and the properties should be settled to the uses limited in his will.
    
      Samuel L. Gross, attorney in person, and Hon. Samuel Jones of counsel, for respondent Gross, argued:—
    I. There is no testimony whatever in the whole case that Henrietta Pinckney ever admitted to any one that the 38th street house, the 39th street house, the 40th street house and the 73d street lot, or either of them, belonged to the estate of Isaac L. Pinckney, or that she held either of them upon any trust whatever. The only apparent attempt to show such an admission was made by Victoria P. Watson, one of the plaintiffs, who, when testifying relative to Plaintiff’s exhibit B, not signed or subscribed, said that Henrietta Pinckney told her when she handed her exhibit B that there were two houses in 39th street which belonged to the estate of Isaac L. Pinckney. If Henrietta Pinckney did make that statement, she, of course, referred to the. house on the northwest corner of 39th street and 3d avenue, and the house adjoining it on the rear, both of which are on 39th street, and both of which did then and do now belong to the estate of Isaac L. Pinckney. The house in 39th street, which was owned by Henrietta Pinckney individually, and which is called in the complaint the 39th street house, adjoins the two houses above mentioned. There is absolutely no evidence in the case of any undue or other influence or act on the part of Henrietta Pinckney calculated to induce the making to her of the deeds of the properties called in the complaint the 38th street house, the 39th street house, the 40th street house and the 73d street lot, or either of them. Nor is there a particle of evidence which tends to show that Isaac L. Pinckney was a man who would be likely to be improperly or easily influenced.
    II. Henrietta Pinckney, as the executrix of the estate of Isaac L. Pinckney, deceased, having, prior to the commencement of this action, filed her account as such executrix in the office of the surrogate of this county, in which account she charged herself with having received and with then holding the 3d avenue house for the estate of said deceased, all the parties to this action being parties to said accounting proceeding, the surrogate had full jurisdiction in the matter, and the plea in her answer, that said accounting proceeding is a bar to this action in so far as it relates to the 3d avenue house is valid and effectual. Code of Civil Procedure, § 2472; Lewis v. Maloney, 12 Hun, 207; Rogers v. King, 8 Paige, 210; Schuehle v. Reiman, 86 N. Y., 270.
    III. The Seventy-ninth street house having been conveyed to Henrietta Pinckney in exchange for the Thirty-eighth street house, it stands in the place of the Thirty-eighth street house, and in so far as the title of Henrietta Pinckney is concerned, it needs no independent consideration in discussing this appeal. The only remaining properties which are embraced in this section are the Thirty-eighth street house, the Thirty-ninth street house, the Fortieth street house and the Seventy-third - street lot. The facts attending the conveyance of these several properties were such as to bring them squarely within the section of the statute which declares that no trust shall result in such cases. 1 R. 8., 728, § 51. Everett v. Everett, 48 N. Y., 218, 223; Garfield v. 
      Hatmaker, 15 Ib., 475, 478; Wheeler v. Reynolds, 66 Ib., 227, 231, et seq.; McCartney v. Bostwick, 32 Ib., 53, 59; Gould v. Gould, 51 Hun, 9; Levy v. Brush, 45 N. Y., 589, 595; Hutchins v. Hutchins, 98 Ib., 56; Hurst v. Harper, 14 Hun, 280; Cook v. Barr, 44 N. Y., 156 ; Hoar v. Hoar, 48 Hun, 314; Hubbard v. Sherp, 11 N. Y. State Rep., 802; Kimball v. Grauw, 9, Ib., 339; Schmidt v. Schmidt, 48 Supr. Court (J. & S.) 520; Sturtevant v. Sturtevant, 20 N. Y., 39. 1 R. S., 728, § 51, supra, is as follows, viz.: u Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as alienee in such conveyance subject only to the provisions of the next section. The next section, 52, referred to in section 51, provides that a trust in such cases shall result in favor of creditors to the extent that may be necessary to satisfy their just demands.
    IY. Even if a parol promise is made to reconvey or to hold to one’s use as alleged in the complaint it is not allowed to contravene the express terms of the statute, but is absolutely void in law and equity. Wheeler v. Reynolds, 66 N. Y., 227; Schmidt v. Schmidt, 48 Supr. Court (J. & S.), 520 ; Gould v. Gould, 51 Hun, 9. In Gould v. Gould, supra, the husband paid the purchase money and caused the deed to be made to his wife, she promising to convey to him upon request, and after such conveyance to the wife the husband managed the property and expended about $2,000 in improvements thereon. The parties subsequently separated and the husband brought an action to compel a conveyance by his wife to him. The complaint was dismissed and the judgment affirmed by the general term. Barker P. J., writing the opinion, held that the deed vested in the wife the fee-simple of the land and that her promise to reconvey was not binding on her either in law or equity. In Schmidt v. Schmidt, supra, it was held, Freedman, J., -writing the opinion, that where lands were bought in the name of the wife with the joint funds of the husband and wife, no trust could be enforced in favor of the husband without proof of some wrong or fraud committed by the wife. That if there was an express contract that the husband should have some interest in the lands it would be void under the statute of frauds.
    V. The contention of the plaintiffs is that it was the intention of Henrietta Pinckney and her husband that she should in fact acquire no rights whatever under the deeds to her of the said several houses and lot, and they seek to establish this by parol. If such were in fact the intention of Henrietta Pinckney and her husband it cannot be made effectual by parol under the statute, and the authorities cited. Rapadlo, J., in his opinion in Hutchins v. Hutchins, supra, says on page 63 : “ It has never been held that a deed can be so far contradicted by parol as to show that it was not intended to operate at all or that it was the intention or agreement of the parties that the grantee should acquire no rights whatever under it, or that he should reconvey to the grantor on his request without any consideration.” Nor can parol evidence be resorted to for the purpose of supplementing or aiding the proof furnished by written admissions. Cook v. Barr, supra. Earl, Com., in Cook v. Barr, on page 160, says : “ The parol evidence and the acts of the parties show clearly the alleged trust, but these cannot be resorted to to help out the proof furnished by the writing. The writing must show that there is a trust and what it is, and failing in this it is insufficient.” And again on page 161, he quotes as follows from 1 Hilliard on Real Property, 4th ed., 425 : u A trust cannot be established by parol evidence, even though this goes to confirm other written evidence.” The parol evidence offered by the plaintiffs would not therefore avail them, even if it tended to establish the claim alleged. But it does not tend to establish the alleged claim. All the declarations of Henrietta Pinckney upon the accounting and in her deposition upon the trial of this case are that the several properties are and always have been her absolute property, and the same is true of her written declarations. The same is also true of the written declarations of her son Charles.
    YI. Fraud alone will avoid the express terms of the statute, and fraud will not be presumed in favor of a husband as against a wife. Schmidt v. Schmidt, supra ; Gould v. Gould, supra ; Garfield v. Hatmaker, supra;. Hoar v. Hoar, 48 Hun, 314. A refusal to perform a parol promise to recovery or to hold to one’s use even when affirmatively shown to have been made, does not constitute fraud. Gould v. Gould, supra. Indeed, if a refusal to perform a parol promise to reconvey upon request, or to hold to one’s use, would take a case out of the statute, the statute would be absolutely null.
    YH. Fraud must be alleged and proved by the party seeking to take advantage of it. Bailey v. Ryder, 10 N. Y., 363. There is no evidence whatever in this case, of the slightest semblance of fraud on the part of Henrietta Pinckney. Nor can the appellants succeed upon this appeal on the ground of “ part performance.” The court will not lend its assistance on the theory of part performance unless the terms and conditions of the alleged agreement which the court is asked to enforce, are first satisfactorily proven or made distinctly to appear to the court by competent evidence, so that the court is not left to spell out or infer by the acts of the parties, or otherwise, that an agreement had been made and what its terms might be. Parkhurst v. Van Cortlandt, 1 Johns. Ch., 273; Steere v. Steere, supra ; Stanton v. Miller, 58 N. Y., 192. The only acts of Henrietta Pinckney which are urged to be in part performance of the alleged but unproven agreement are her acts in mingling the receipts from the estate of Isaac L. Pinckney of which she was executrix, with her receipts from her individual properties, viz., from the 38th street house,- the 39th street house, the 40th street house and the 73d street lot. It is shown by the testimony of Henrietta Pinckney that the said receipts were mingled by her for the sole reason that “ it was more convenient.” All the income from the estate of Isaac L. Pinckney belonged to Henrietta Pinckney absolutely under the will. No one can assign any good reason why she should keep this income separate from other income which belonged to her under other instruments, and except in one or two instances, if at all, can it be said that any of the principal of the estate of Isaac L. Pinckney was mingled with the incomes and those only temporarily. These acts of mingling did not effect a change of ownership in the properties mingled, nor indicate anything as to the ownership of them. Fitch v. Rathbun, 61 N. Y., 579; Sherman v. Elder, 24 Ib., 381. Much less could such mingling be held to indicate anything as to the ownership of the principal of the two estates which consists solely of real estate.
    VIII. The foregoing cited cases establish beyond any chance for discussion that the title of the 38th street house, the 39th street house, the 40th street house and the 73d street lot was conveyed to Henrietta Pinckney, in fee simple absolute, and that said houses continued to remain so up to the time of her death, unless subsequent to such conveyances to her, she created some interest therein in some one else. It has already been shown that there have been no part performances, (a.) No interest in any one else could be created, unless by act or operation of law or by some instrument in writing, subscribed by the said Henrietta Pinckney, 2 R. S., 135, § 6 ; James v. Patten, 6 N. Y., 9 ; Wheeler v. Reynolds, supra; Levi v. Brush, supra; Hutchins v. Hutchins, supra ; Cook v. Barr, supra ; Dillaye v. Greenough, 45 
      N. Y., 438 ; Steere v. Steere, 5 Johns. Ch., 1; Hubbard v. Sharp, 11 N. Y. St. Rep., 802; Kimball v. DeGrauw, 9 Ib., 339. 2 R. S., 135, § 6, is very explicit and is as follows, viz.: “No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized in writing.” The word “subscribed ” used in the statute, 2 R. 8., 135, § 6, supra, means written underneath or at the end of such writing. James v. Patten, supra. No such writing so subscribed has been produced, and Henrietta Pinckney in her testimony expressly declares that said houses and lot were and always had been her separate and absolute property, and that there is not and has not been any trust in relation to them, (h.) And the trust so created or declared must not only be in writing and subscribed by the party, but it must be explicit as to its nature and terms. Dillage v. Greenough, supra; Steere v. Steere, supra. Kent, Chancellor, in his opinion in Steere v. Steere, says, on page 11: “ To take the case out of the statute of frauds the trust must appear hi writing under the hand of the party to he charged with absolute certainty as to its nature and terms before the court can undertake to execute it.” And on page 13 of same case: “ Parents will usually make declarations and express intentions of holding them property for their children, but a technical trust would not easily be deduced from them unless they were contained in a last will and testament made on purpose to dispose of the estate. It would be injurious to that freedom of intercourse and to the operation of those kind and generous affections which ought to he cherished in the circle of the domestic connections, to make such deductions from loose and general expressions, in a confidential correspondence between one member of a family and another, and to give them the force and rigor of legal obligations. Nothing answering the foregoing requisites appear in the case at bar.
    IX. The plaintiffs having utterly failed to prove either the agreement or the part performance alleged in the complaint, or any cause of action whatever, now ask the court to hold that the burden of proof has “ shifted,” and that it is incumbent upon the defendants to prove affirmatively that they, the plaintiffs, are not entitled to any relief. This is an ingenious theory, but it is not the law as we understand it. If this position of the plaintiffs were sound, it would be impossible for a husband to make a gift to his wife which his children might not deprive her of after his decease.'
    
      A. H. Ammidown, for respondents Pinckney, argued :—
    I. To establish a trust (in lands) the evidence must all be in writing and sufficient to show that there is a trust and what it is. Parol evidence cannot be resorted to for the purpose of supplementing or aiding the proof furnished by written admissions. Cook v. Barr, 44 N. Y., 156; Wheeler v. Reynolds, 66 Ib., 227.
    II. There can be no resulting trust in favor of the husband where he purchases lands and takes a conveyance thereof in the name of his wife. Jencks v. Alexander, 11 Paige, 619 ; Brewster v. Power, 10 Ib., 560; 1 Rev. St., 728, § 51; Garfield v. Hatmaker, 15 N. Y., 475 ; Nivor v. Crane, 98 Ib., 40. An oral promise by her to convey to her husband would not be enforced by the court. Schmidt v. Schmidt, 48 Superior Ct., 520; Gould v. Gould, 51 Hun, 9. There is no fraud or undue influence alleged and it appeared none existed. The complaint itself shows there was no fraud or undue influence. Wheeler v. Reynolds, 66 N. Y., 227, 235. 
      “ The wife is presumed to act under the influence of her husband, but it is proper to remark that the husband is never presumed to act under the influence of his wife.” Tyler on Infancy and Coverture, p. 330, citing City Council v. Roven, 2 McCord’s (So. Car.) Rep., 465. A father’s purchase in name of child is presumed an advancement. No resulting trust, Story’s Rq., § 309.
    HI. There would seem to be no evidence to sustain the allegations of the complaint, but certainly there is ample evidence to sustain the defence and it is respectfully submitted that there is certainly no such preponderance of evidence for the appellants as will induce the general term to review the facts. Hart v. Wilder, 13 N. Y., Supp., 615 ; Spies v. Rome, W. & O. R. Co., 15 Ib., 348 ; Aldridge v. Aldridge, 120 N. Y., 614, 617.
    IV. There is no instance since the Revised Statutes, certainly, of a trust created by circumstances similar to those in question, the plaintiffs’ success would nullify the provisions of the Revised Statutes applicable to such cases and destroy the certainty and security of conveyances of real estate.
   Per Curiam.

The plaintiffs are children and issue of children of Isaac L. Pinckney. Isaac L. Pinckney made his last will and testament and it was admitted to probate in the year 1867. His wife wras named as sole executrix, and letters testamentary were issued to her. She was named a defendant in this action. The sixth subdivision of the will is : * * * “I hereby direct that upon the death of said executrix, my real estate, or such part thereof as shall remain unsold, be sold at public or private sale and the proceeds thereof, together Avith all my property and effects of every nature or description, be divided share and share alike among my children living, or in case either shall have died leaving issue, then the child or children shall take its parent’s share.

The object of the suit was to have it adjudged that certain pieces of real estate, standing in the name of the widow of Pinckney and the executrix of his will, equitably were part of his real estate when he died. These pieces have been duly conveyed to her by third persons at the request of her husband, he paying the consideration.

As the ground for the relief asked, the complaint alleges, as follows: ■ ■

IV. That during his life-time and from the date of his intermarriage in or about February 1,1834, with the said Henrietta Pinckney, the testator lived with her (until his death) in the intimáte and confidential relation of husband and wife ; and that in course of such relations and by reason of the confidence reposed by the testator in his said wife, the said testator who carried on at said city of New York the business of buying and selling real estate adopted and pursued the course and practice of causing conveyances of such real estate so purchased by him to be made in the name of the said Henrietta Pinckney as grantee ; but that it was not the intention of the said testator nor of his said wife, that such conveyances should operate as gifts or grants to the said Henrietta Pinckney, absolutely; but on the contrary thereof it was mutually understood and agreed between the said testator and his said wife, that all such real estate so purchased by him and conveyed to her should be held by her subject to the use, direction and control of the testator during his life-time, and to such appointment, if any, as he might make by his last will and testament; and that after his death, she should stand seized of all such properties as she should not have conveyed pursuant to his directions during his life-time, to the use and benefit of the issue of himself and his said wife in such estates, interests and shares, respectively, as they would be entitled to (the same) in case the said testator had died seized and actually possessed of the same; and that all such grants and conveyances of realty which were so caused to be made to the said Henrietta Pinckney hy the said testator and more particularly the grants and conveyances of the lands and tenements hereinafter more particularly described were so caused to he made by the testator and accepted by her upon the promise and understanding on her part that she should and would hold the same to the uses and purposes aforesaid.

As to the supposed promise, it was not proved. If it had been proved, it would have been void. This also is true of the so called trust: if you suppose such an oral promise or oral trust to have been made, it would not have been a fraud to refuse to recognize the validity of either. Levy v. Brush, 45 N. Y., 589. It is supposed that as the gift.was made by husband to wife, there was some presumption of law against the gift which requires the wife to explain something. Conceding this proposition, the wife as a witness called hy the plaintiffs, and corroborated by probabilities, and extrinsic circumstances, proved that her husband acted voluntarily without influence from her. The inference from the whole testimony is that he did intentionally what he did, meaning that it should have its full legal effect.

The right of the parties as to the Third avenue property are in due course of administration and adjudication in the Surrogate’s Court, and there is no occasion for this court to proceed here if it would be legal to proceed under the circumstances.

Judgment affirmed, with costs.  