
    William Lord v. John H. Cronin.
    (Supreme Court, Appellate Division, Third Department,
    September 14, 1896.)
    Contracts—Interpretation.
    A husband signed a writing reciting that his wife had loaned him a certain sum of money, and covenanting that if he should die before her, the-amount should be a charge on his estate, to be paid as a debt owing by him, and that certain real estate owned by him should be conveyed to her, but that, if she should die first, “then this agreement shall be of no effect.’1' Held, that the husband, on surviving his wife, was not discharged from, liability for the debt.
    Appeal from circuit court, Rensselaer county
    Action by William Lord, as executor of the will of Martha A. Cronin, deceased, against John H. Cronin, From a judgment dismissing the complaint in pursuance of a verdict directed by the court in favor of defendant, plaintiff appeals.
    The action was 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 thereupon the defendant executed and delivered to her the following in-strument, and thereafter, and before the commencement of this action, the wife died. The plaintiff is her executor.
    “This agreement, made this second day of May, in the year of our Lord one thousand eight hundred and ninety-two, between John H. Cronin and Martha A. Cronin, of the city of Troy, county of Rensselaer, and state of New York, witnesseth: 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 thous- and 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 charge 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-half 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 not survive me, then this agreement shall be of no effect,
    “In witness whereof, I, the said John H. 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 appellant.
    Edwin Countryman, for respondent.
   LANDON, J.

The instrument is evidence of the loan, and provides that, in case the husband should die before his wife, she should not only be fully paid, but should be entitled “to all my one-half interest” in certain real estate. Might not the husband have tendered repayment of the loan to the wife while she was yet living, and thus have canceled the obligation? It ivas a loan, therefore an indebtedness, and therefore payable. There is no contract upon her part exempting her from obligation to receive payment whenever tendered. If he should die first, he promised that the loan should be paid, and additional benefits be given his wife-Suppose, meantime, he had sold his interest in his real estate contingently promised to his wife. It is not clear that she would have had any equitable interest in it, “But, if the said Martha A. Cronin shall not survive me, then this agreement shall be of no effect.” This declares that the instrument is now, such contingency having happened, of no effect as an agreement. If,' so, then its terms do not determine the rights of the parties. Nothing remains of it as an existing agreement, but it is still the declaration of the deendant that his wife loaned him the money in question. Certainly it was the intention of the parties that, if she should not survive him, her heirs should not have the real estate. But there is nowhere any agreement upon her part that .she renounced in such event her title to the debt due from him on account of the loan. In short, this agreement-effective to the extent of its terms, in the event of certain contingencies—does not state that, if the wife cannot be paid in the way stated, she or her estate shall never be paid. 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 nonpayment imply. We do not think the agreement usurious. There is no certain agreement to pay excessive interest. Insurance Co. v. Dunham, 33 Hun, 415.

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

HERRICK and MERWIN. JJ., concur. PARKER, P. J., and PUTNAM, J., dissent.  