
    (83 Misc. Rep. 589)
    STILLWELL v. BATEMAN et al.
    (Supreme Court, Special Term, Kings County.
    January 20, 1914.)
    1. Wills (§ 58*)—Contracts to Devise or Bequeath. The mere expression of an intention to leave property to a person does not amount to a contract or agreement to devise or bequeath.
    [Ed. Note.—For other cases, see Wills, Cent Dig. §§ 164,165; Dec. Dig. § 58.*]
    2. Wills (§ 58*)—Contracts to Devise or Bequeath—Evidence. If a contract to devise or bequeath property is not evidenced by a writing, the evidence should be given and corroborated in all essential particulars by disinterested witnesses, and the testimony must be of the clearest and most convincing character and free from circumstances making it appear like an afterthought.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.*]
    3. Evidence (§ 265*)—Admissions—Weight and Sufficiency. Verbal admissions of a decedent, especially when uncorroborated by other facts or evidence, should always be weighed with great caution, and such admissions, made in the course of casual conversations and testified to after a great lapse of time, should be given slight probative force.
    [Ed. Note.—For other cases, see Evidence, Cent Dig. §§ 1029-1050; Dec. Dig. § 265.*]
    4. Wills (§ 58*)—Contracts to Devise or Bequeath—Evidence. A contract to devise or bequeath property must be established In certain and definite terms.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.*]
    5. Wills (§ 58*)—Contracts to Devise or Bequeath—Evidence. The admissions of a decedent, relied on to establish a contract to bequeath or devise, should be recalled and expressed in the exact language of the decedent and not according to the witness’ understanding.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.*]
    Action by William Stillwell against Caroline V. Bateman and others. Judgment for defendants.
    See, also, 158 App. Div. 907, 143 N. Y. Supp. 1145.
    Ernest P. Seelman, of New York City, for plaintiff.
    Andrew F. Van Thun, Jr., of Brooklyn, for defendants.
   MANNING, J.

The plaintiff, a man about 40 years old, brings this action to enforce certain claims or rights which he alleges he has in and to property formerly owned by one James Stillwell and Mary Stillwell, his wife, both of whom are dead; the former having died in 1892 and the latter in 1911. James Stillwell and his wife were for many years residents of Gravesend Beach, Kings county, N. Y., where they conducted what was known as Stillwell’s Hotel.

It appears that in the year 1873 the plaintiff’s mother sought and obtained employment with the Stillwells as a domestic servant, and she took with her to the Stillwells’ home the plaintiff, who was then about three months old. Plaintiff’s contention is that the. Stillwells agreed with his mother to adopt him and bring him up as one of their own children, and that there was an agreement that he was to share equally in their estate with their own children, of whom there were three.

Plaintiff lived in the Stillwell household for about 36 years, and his mother served there for a period of about 22 years. There is no doubt but the plaintiff rendered good and faithful service to the Stillwells during this long period of time, and that he may not have been fully or adequately compensated for his work; but the courts cannot be expected to put forth gratitude where it does not already exist, nor can they apportion estates among those who are not legally entitled thereto.

When James Stillwell died, in’ or about the month of September, 1892, he left all his property to his wife, Mary Stillwell, absolutely and forever, and Mary Stillwell subsequently died, leaving the property so acquired to her two married daughters, saving only a legacy of $250, which she bequeathed to the plaintiff.

The plaintiff bases his right of action upon an alleged contract said to have been made between the two Stillwells and his mother when he was three months old." The alleged contract, as testified to by the plaintiff’s mother, was entirely oral, and she admits that there was no one present to corroborate the making of the same. The case necessarily is based upon the mother’s testimony. She explains how she first met the Stillwells; how she took the child to their home, and events leading up to, and the making of, the said alleged agreement, whereby, as she says, they agreed to adopt plaintiff as their own, to bring him up as their son, and to treat him the same as their own, and to leave him with their own a share in their property, “share and share alike.” On the trial plaintiff called the following witnesses to corroborate his mother: Mrs. Davis, an aunt of the plaintiff; Miss Burg-hart, also an aunt of the plaintiff; Beale Elliott, formerly a waiter in the employ of the Stillwells; Josephine Brand, a neighbor; and one Morris Shirk, a man who furnished the Stillwells with hotel supplies. The testimony of the two aunts is not very strong or even satisfactory. It is only natural that they should support the story of the plaintiff’s mother, and this they endeaver to do by detailing certain statements alleged to have been made by the Stillwells at times when they visited their sister at the Stillwell homestead. The dates of the alleged conversations are somewhat doubtful, and the two witnesses do not attempt to corroborate the plaintiff’s mother as to the exact wording or details of the alleged agreement. The. evidence of the witnesses Elliott, Brand, and Shirk is equally unsatisfactory and falls far short of proving the making of the contract which the plaintiff must prove in order to succeed in an action of this kind.

The present case is analogous to a great many similar cases decided in this state, and not one of them go to the extent of frustrating the effect of a last will and testament duly admitted to probate on evidence of this character. The well-defined doctrine and rules are clearly set forth in the following cases: Hamlin v. Stevens, 177 N. Y. 39, 69 N. E. 118; Rosseau v. Rouss, 180 N. Y. 116, 72 N. E. 916; Taylor v. Higgs, 202 N. Y. 65, 95 N. E. 30; Wallace v. Wallace, 158 App. Div. 273, 137 N. Y. Supp. 43; Mahaney v. Carr, 175 N. Y. 454, 67 N. E. 903.

There may have been something said by the Stillwells, probably there was, about their intention- to leave the plaintiff some part of their property; but there is a very clear distinction between a contract or agreement to make a devise or bequest and an expression of intention so to do. See Wildman v. Jones, 150 App. Div. 514-516, 135 N. Y. Supp. 428.

The alleged contract was an oral one, and not a witness was produced to corroborate plaintiff’s mother in her testimony as to the making thereof. It does not measure up to the standard required by the authorities, which provide for certain elements to exist in cases of this kind: (1) Such a contract should be in writing and the writing produced, or, if ever based upon a parol agreement, the evidence should be given and corroborated in all essential particulars by disinterested witnesses. Hamlin v. Stevens, 177 N. Y. 39, 69 N. E. 118. (2) Such testimony must be of the clearest and most convincing character. Rosseau v. Rouss, 180 N. Y. 116, 121, .72 N. E. 916. (3) Verbal admissions of decedent in any event, and especially when uncorroborated by other facts or evidence, should always be weighed with great caution, and such admissions, made in the course of casual conversations, when testified to after a great lapse of time, should be given slight probative force. Rosseau v. Rouss, supra. (4) The testimony of such a witness should be free from circumstances making it appear like an afterthought. (5) The evidence must establish the alleged contract in certain and definite terms. Taylor v. Higgs, 202 N. Y. 65, 70, 95 N. E. 30. (6) The admissions should be recalled and expressed in the exact language of the decedent and not according to the witness’ understanding. Tousey v. Hastings, 127 App. Div. 94, 97, 111 N. Y. Supp. 344.

Bearing in mind the_ principles set forth in the foregoing cases, the plaintiff’s cause of action must fail. I therefore decree judgment for ' the defendants.  