
    Eva K. Conlon, Appellant, v. The Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children and Others, Respondents.
    
      Alleged agreement by a husband to leave his entire estate to his widow—rules applicable to actions foi’specific performance rigidly applied—an action for dower is inconsistent with it but does not create an estoppel—the right to recover money advanced by the wife to the husband protected where specific performance is refused.
    
    In an action brought by the wife of a decedent against his heirs at law, devisees and legatees to compel the specific performance of an agreement, by which the decedent was alleged to have agreed, in consideration of certain services performed for him by the plaintiff and of certain.moneys advanced to him by her, that upon his death he would leave to her all the property of which he might die seized and possessed, the ordinary rules of law which govern actions for the specific performance of contracts will be rigidly applied.
    The fact that the plaintiff, for whom no provision had been made in the will, brought and successfully prosecuted to judgment an action to recover dower in her husband’s estate, while it may not estop her from prosecuting other claims against the estate, is entirely incompatible with the existence of a contract under which she is entitled to all of the decedent’s property at his death.
    Where the evidence given in the action, although insufficient to justify the court in directing specific performance of the contract, does establish that the plaintiff advanced to the decedent a certain sum of money, a judgment dismissing the complaint upon the merits should contain a provision that the dismissal was without prejudice to the right of the plaintiff to maintain an action against the estate to recover the advances.
    Appeal by the plaintiff, Eva K. Conlon, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special. Term, dismissing the plaintiff’s complaint upon the merits.
    
      Morris A. Tyng, for the appellant.
    
      George M. 8. Schulz, for the respondents. Dolan and others.
    
      B. P. Ryan, for the respondents Jones and others.
   Patterson,. J.:

In this action the plaintiff claimed to be entitled to the specific performance of a contract which she asserts was entered into between her and John P. Conlon, her husband, and by which, in consideration of certain services performed by her for him, and in consideration of certain moneys- paid over by her to him, he agreed with her that upon his death he would leave to her all the property of which he might die seized and possessed, and that, in pursuance thereof, he entered into a certain agreement purporting to perfect the same.' The action was brought against the heirs at law, devisees and legatees under a will of John P. Conlon. • That will was made in 1877. The plaintiff became the wife of Conlon by an unceremonial marriage, in 1894. She alleges that the agreement under which she claims was made prior to .or at the time of her marriage and that in. addition to rendering services to her husband, she advanced him the sum of $8,500 as a consideration for that agreement. Conlon died in April, 1899. The. will of .1877 was admitted to probate.

It is well settled that in actions, of this character the ordinary rules of law which-govern in actions for .the specific enforcement of contracts will be rigidly applied. As was remarked in Gall v. Gall (64 Hun, 600): “ These rules require that the contract be certain and definite in all its parts ; that it be mutual and founded upon an adequate consideration; and-that it be established by the clearest and .most convincing evidence. - Even then, when the contract limits, á man’s right to dispose of his property by will, it is regarded with suspicion and enforced only when it is apparent that the hand of equity is-required to prevent a fraud upon the promisee.” (See, also, Winne v. Winne, 166 N. Y. 263 ; Healy v. Healy, 55 App. Div. 315; Shakespeare v. Markham, 72 N. Y. 403; Kine v. Farrell, 71 App. Div. 219 ; Godine v. Kidd, 64 Hun, 585 ; Gates v. Gates, 34 App. Div. 608;)

.- -In determining this cause the justice at Special Term by whom it was tried dismissed the complaint on the merits,: holding that the plaintiff’s casé was fatally defective, the proof resting entirely upon the husband’s declarations, and the testimony of the plaintiff’s witnesses being contradictory and improbable.

On a careful examination of the whole record, we find no reason for dissenting from that view of the case. The plaintiff sought to establish -by the testimony óf the witness Rosenberg that the contract was made just prior to the marriage agreement between the plaintiff and Conlon. His testimony is that Conlon said to him in the presence of the plaintiff, “ I want you to be a witness to a contract which I am making with Mrs. Kinnis. I am going to take her as my wife. She has promised to take care of me all the rest of my days and I have promised to do everything I can for the rest of her days and I want you to remember this day.” The witness said, “ that is about the words; not exactly probably, but that is as near as I can remember it.” That is all the evidence there is of an original contract. This witness and others testify to declarations of Conlon, made after that time, to the effect that he had promised to leave the plaintiff all his property and that he had received money from her; but as the justice at Special Term says, the testimony of those witnesses is so vague and unsatisfactory and in some respects contradictory, that they cannot be regarded as establishing the contract set forth in the complaint, especially in view of the attitude which the plaintiff herself assumed with reference to the property of her husband after his death.

No provision was made for the plaintiff by will, and she brought an action, which she prosecuted successfully to judgment, in which she claimed dower in her husband’s real estate; and by the judgment it was awarded to her. The institution of that action and the benefit derived therefrom, while it may not be an estoppel against the prosecution of other claims against the estate, is entirely incompatible with the existence of such a contract as she sets forth in her complaint. If, by agreement, all the property of which her husband died seized and possessed was hers, why should she seek dower in that to which she 'was absolutely entitled ? There are other acts of hers referred to in the evidence at variance with the claim she now urges, but it is unnecessary to refer to them. On the whole record we think the justice at Special Term was justified in dismissing the complaint, and, as the case was presented to him, it was proper to dismiss it on the merits.

However, there is proof in the record that the plaintiff advanced to Oonlon a certain sum of money. That advance may constitute an enforcible claim against his estate. We think that the plaintiff should not be precluded from enforcing a claim to recover that money, if one exists. It may be that the judgment entered herein would not have the effect of so precluding her, but there should be no doubt as to that, and, therefore, we think judgment should be modified by inserting a provision therein that the complaint is dismissed on the merits, but without prejudice to the right of the plaintiff to maintain any proper action she may be advised to bring to recover any indebtedness of the estate to her arising out of advances of money, subject, of course, to whatever defenses may exist thereto.

As thus modified the judgment should be . affirmed, with costs to the respondents.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred. '

Judgment modified as directed in opinion, and as modified affirmed, with costs to respondents.  