Learned, P. J. Riley Crippen died December 30, 1885, leaving a will,, which was duly proved, and defendants were appointed executrix and executor. The plaintiff, a son of deceased, presented a claim, which was duly referred under the statute. The referee reported in favor of the claim. The-defendants on case and exceptions moved to set the report aside. The motion was granted, and plaintiff appeals. The claim is on an alleged oral promise made by Riley Crippen to his wife, Fanny, about July, 1853.
The facts out of which the alleged promise arose are as follows: Ephraim Wheeler died in 1840, and left surviving children,—among them, Fanny. There is some testimony that each daughter received about $4,000 from his estate. This is only given on recollection of witnesses, and a statement of Riley Crippen, said to have been made about 1854. Fanny Wheeler, in 1845, married Riley Crippen. She died in July, 1853.
There is the testimony of two or three-witnesses as to statements made by him at or before her death; being about 30 years ago. These statements are, in substance, that when she was ill, and near death, she proposed to make a will, and that he told her there was no-need of a written will, as everything could be carried out as she wished, and the wish was that he should have the use during his life-time, and then this-money, said to be $3,900, should go to her children.
The plaintiff is one of the three children of Fanny. One other child is living, who is the plaintiff in another action, and the third child is dead, leaving children. The learned justice who decided the motion thought that the evidence was insufficient to show that Fanny Crippen had money which came from her father, that the money came to the hands of her husband, or that he made the alleged promise.
He pointed out, very justly, that the only evidence consisted of testimony to verbal admissions made about 33 years before the death, of the testator; and we think that his remarks are just. It is not shown what property was received from Ephraim Wheeler’s estate, nor what were the terms of his will, if, as defendants’ brief states, he left a will. If he died in 1840, then Fanny, so far as appears, became entitled to the property. When she married Riley Crippen, in 1845, her personal property became his.
There is no 379 evidence that it had nob been reduced into possession, or that he was holding it in trust for her. Therefore, when she died, in 1853, she had no personal property to dispose of. At least, none is shown.
As was stated by this court in Bull v. Bull, 31 Hun, 69, “the promise which has been enforced has been made by a person who by descent or devise or bequest has received from the decedent property out of which the proposed devise or legacy would have come, which proposed devise or legacy was prevented by the promise of the person thus held liable. ” This is the principle which has controlled the case, O'Hara's Will, 95 N. Y. 403.
Certainly, a promise, where the promisor owns the property and the promisee does not, can create no legal obligation. It is the wrong done to the promisee by preventing him from doing what he would otherwise have done with his own property which makes this kind of promise binding.
To sustain this report of the referee, then, it giust be shown that Riley Crippen, by virtue of the alleged promise, obtained from his wife’s estate after her death the title of this money which would otherwise have been given by her to her children. Unless this be shown, then her will, if executed, would have been of no avail to them. We agree with the learned justice, that this has not been shown; and we think the order should be affirmed, with costs.
The same disposition is made of the case of Emily Wood against the same defendants.
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