
    Elizabeth H. Allyn, Appellant, v. Lillarene Hopkins, as Executrix, etc., of Adelia R. Hopkins, Deceased, Respondent.
    
      Written agreement of the grantee of a widow to pay her her dower interest in one year after her hmband’s death — the question as to its delivery as a contract and as to whether it was superseded by a deed of the widow and her husband must be submitted to the jury.
    
    In an action brought by a widow against the executrix of her daughter to recover upon an agreement executed by the daughter, in which she promised to pay to her mother one year from-the death of the latter’s husband the value of the widow’s dower interest in premises which she and her husband had by a deed, executed concurrently with the agreement, conveyed to the daughter,"the object being, as set forth in the deed, to release the mother’s dower right in such premises as against mortgages which the daughter and her husband had executed thereon, it is erroneous for the court, upon proof that the mortgages have been paid and discharged of record, and that the widow is in occupation of the premises as devisee for life under the will of her daughter, to direct a verdict for the defendant upon the ground that the purposes of the written agreement had been fulfilled; in Such a case the jury should have been permitted to pass upon the question whether the agreement was ever delivered as a contract, and, if so, whether it was superseded by the deed.
    
      Appeal by the plaintiff, Elizabeth H. Allyn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 25th day of March, 1896. upon the verdict of a jury rendered by direction of the court.
    
      Clarenoe J. Browning, tor the appellant.
    
      Charles M. Williams, for the respondent.
   Adams, J.:

The plaintiff is the widow of Lewis Allyn, and she brings this action against the executrix of Adelia It. Hopkins, a deceased daughter, to recover the value of her dower interest in certain premises formerly owned by her husband and which she alleges she conveyed to the defendant’s testatrix in pursuance of a written agreement, of which the following is a copy, viz. : “ For and in consideration of a deed this day executed and delivered by Lewis Allyn and Elizabeth H. Allyn, his wife, to Adelia It. Hopkins, we, the undersigned, our liQirs, executors and administrators, jointly and severally promise to pay to Elizabeth H. Allyn, in case she survives her husband, Lewis Allyn, and within one year from the death of her said husband, the value of the dower interest of the said Elizabeth H. Allyn in the property this day conveyed by said Lewis Allyn and Elizabeth H. Allyn, at the time of the death of her said husband, to be computed according to the Northampton tables, and the said Adelia B. Hopkins, for value received, hereby makes the payment thereof a charge upon her separate propérty and estate.” -

The defendant, in her answer, admits the execution of this instrument, but claims that it was one of several papers relating to the plaintiff’s inchoate right of dower in the premises described in a deed which was executed concurrently therewith; that it was designed simply as a proposition of settlement, and that it was never accepted by, or. delivered to, the plaintiff. The answer also admits that, at about the time the instrument in question was executed, the plaintiff united with her husband in a conveyance by deed of all their right, title and interest in and to two certain parcels of land in the city of ■ Bochester, one of which was situate upon Elm street and known as the “homestead,” the other being a'brick block situate upon Main and Stillson streets. This deed bears date ' December 14, 1877, and it appears that prior thereto Lewis Allyn had executed and delivered to .Mrs. Hopkins another deed of the same premises in which the plaintiff did not join. The object of the second deed, as is expressly stated therein, was to release and .convey any and all dower right, interest or claim of, in and to the premises above described as against two certain mortgages executed by the said Adelia E. Hopkins and Alphonso A. Hopkins, her husband, upon the premises above described to the Mutual Life Insurance Co. of New York, dated respectively October 8, 1877, one being given to secure the payment of the sum of five thousand dollars ($5,000) and one for the sum. of four thousand dollars ($4,000).”

The answer further alleges that the defendant’s testatrix has “ fully complied with and discharged any and all considerations connected With the execution and delivery of said conveyance.”

Upon the trial it was conclusively established that both of the mortgages to the Mutual Life Insurance Company had been'paid and discharged of record, and it further appeared that Mrs. Hopkins died in 1895, leaving a last will and testament, in and by which she devised to the plaintiff the use of the whole of the Elm street premises, as well as of certain, other property, during the term of her natural life, and that the plaintiff was in the occupation of such property at the time of the commencement of this action, and had been so occupying the'same ever since the death of her husband.

Upon this state of facts, the learned tidal court held that there was no question for the jury, and directed a verdict in favor of the defendant. This conclusion appears to have been reached upon the assumption that the deed from the plaintiff to the defendant’s testatrix was designed simply .to enable the latter to perfect her title so as to be able to obtain a loan from the insurance company, and that inasmuch as such loan had been paid and the mortgages by which the same was secured had been discharged, the ob ject .of the conveyance had been fully accomplished and the plaintiff’s dower interest virtually restored.

It may, for the purposes of this review, be conceded that the deed of December 14, 1877, was designed to accomplish no other purpose than the one claimed for it; and if the plaintiff were seeking to recover the value of her dower interest in reliance upon that instrument instead of upon the contract, it- must be admitted that there would be much force in the defendant’s position, although it may be doubted whether even in that case a perfect defense to the action could be established in the absence of an offer to reconvey. But however that may be, we'think there is an insuperable objection to the adoption of the conclusion reached by the trial court, arising from the fact that this action is brought upon what purports to be an absolute agreement, for a good and sufficient consideration, to pay a sum of money, which ■ sum is capable of being made certain and definite by a simple computation; and .until it can be shown that this agreement had no valid inception, or that it has in some manner been either fully performed or superseded by a subsequent agreement, we are unable to see why it does not furnish the foundation for a good cause of action.

It is true that there is much in the case to. sustain the defendant’s contention that the instrument sued upon was never invested with any validity, and that it was in reality nothing more than a tentative proposition; but it was signed by Mrs. Hopkins; it does contain all the elements of a contract, and in some way it came into the plaintiff’s possession. These are all circumstances which tend to create an issue of fact which we think should have been met and disposed of in.the usual manner. In other words, the learned trial court should have permitted the jury to find upon the evidence in the case whether this instrument was ever in fact delivered to the plaintiff as a contract, and, if so, whether it was superseded by the deed of December fourteenth, and its failure to do so was error, which requires that the judgment appealed from should be reversed and a new trial directed.

All concurred.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.  