
    Christopher Johannes and Meta Johannes, Appellants, v. Felix Martian, Respondent.
    
      A deed given in consideration of an oral agreement by the grantee to will his property to the grantors—such agreement adjudged to be entered in the record of an action brought to set aside the deed — specific performance of such a promise.
    
    In an action brought to set aside a deed made by the plaintiffs to the defendant, their son-in-law, for the expressed consideration of ' ‘ one dollar and other considerations,” upon the ground that, through the defendant’s deception, they signed the conveyance under the impression that it was his will, the trial court, upon sufficient evidence, adopted the defendant’s contention that the plaintiffs executed the conveyance understandingly in consideration of the defendant’s agreement to make a will leaving all his property to the plaintiffs; and it appeared that at the time of the execution of the conveyance the defendant actually made such a will, but that he took it, together with the deed, away with him.
    
      Held, that the judgment entered in the defendant’s favor should be so modified as to make the agreement upon which the court found that the conveyance was executed appear by the record.
    
      Semble, that the agreement, being sustained by an executed consideration, was effectual, so far as related to the estate which the defendant might leave at his death, and that, upon his failure to. leave such a will, specific performance of the agreement might be compelled by the plaintiffs.
    Appeal by the plaintiffs, Christopher Johannes and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of May, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      
      Charles Strauss [Sidney H. Weinberg with him. on the brief], for the appellants.
    
      Henry A. Powell, for the respondent.
   Bradley, J.:

The plaintiffs sought by this action to- set aside a conveyance made by them, by deed, of a certain lot in the city of Brooklyn to the defendant, for the alleged reason that the execution of the deed by them was obtained by fraud and deception practiced upon them by the defendant. The defendant married the daughter of the plaintiffs, and several years after the marriage she died intestate, without issue, seized of the premises in question. They had occupied them as a place of residence for five or six years prior to her death. About one week after her burial the defendant procured the execution by the plaintiffs of a deed of conveyance to him of the lot, in which the consideration expressed is one dollar and other considerations.”

The transaction of the business was at the residence of the plaintiffs, where the defendant and his lawyer came for the purpose. The evidence of the plaintiffs was to the effect that they were not advised and did not understand that they executed any deed of conveyance, but that, as they understood, they were requested to sign the defendant’s will, and their statement of the circumstances tended to prove that they were, by deceptive means used by the defendant, led into the execution of the deed. The certificate of acknowledgment was made by the lawyer, who was a notary, public.

The evidence on the part of the defendant was quite different. It consisted of the testimony of the defendant and the lawyer, and was to the effect that, in consideration of the conveyance to him, the defendant agreed to give them, by his will, all his property; that the plaintiffs were fully informed of the arrangement proposed by the defendant and understandingly agreed to it. The defendant testified that he paid for the property and permitted the title to be taken in the name of his wife. It appears that he there executed his will, which, as well as the deed, was drawn before he went there. The subscribing witnesses to the will were the lawyer and Mary Skinner. By the terms of the will he gave to the plaintiffs or the survivor of them all of his property, real and personal, after the debts were paid. There was no written memorandum of any agreement between them, and the defendant took away with him both the will and the deed. The plaintiffs were then left quite helpless to establish the agreement by proof, if any occasion should after-wards arise to do so, which occasion for them, personally, to avail themselves of it, is not very probable, since they are old people, and the defendant is in the prime of life. The adoption by the trial court, upon the evidence of the defendant, as a fact, that he paid for the property, evidently, as it properly might, was treated as a factor which entered into the consideration there had of the controversy. Otherwise the act of conveyance would have been so improvident on the part of the plaintiffs as to excite greater suspicion of deceptive means to obtain it.

And although the evidence of Mary Skinner was somewhat corroborative of the evidence of the plaintiffs, there was a question of fact presented by the evidence for determination, and in the view which the trial court was permitted to take of the situation on seeing the witnesses and hearing their testimony, it cannot here well be said that the conclusion there reached on the question of fact was against the weight of evidence.

The agreement of the defendant to give by his will his property to the plaintiffs having, as it did, the support of an executed consideration, was effectual, so far as relates to the estate which he may leave at his death, and the execution of this agreement may be enforced by way of specific performance or otherwise, if he fails to leave his will to that effect. (Johnson v. Hubbell, 2 Stockt. Ch. 332; 66 Am. Dec. 773 ; Sherman v. Scott, 27 Hun, 331; Edson v. Parsons, 85 id. 263; Parsell v. Stryker, 41 N. Y. 480; Todd v. Weber, 95 id. 181.)

The judgment'should be so modified as to make the agreement, upon which the conveyance was made by the plaintiffs to the defendant, appear by the record, and as so modified, affirmed.

All concurred, except Bartlett, J., not sitting.

Judgment so modified as to make the agreement upon which the conveyance was made by the plaintiffs to the defendant appear by the record, and as so modified affirmed, without costs to either party. Judgment to be settled on notice.  