I think that this case falls within .a different line of cases from those considered by Mr. Justice Putnam. This was, in effect, an .application to be heard, not for a final decree. If the evidence offered made a primafacie case, I think the application should have been granted unless theprirma facie case was clearly overcome, and I do not think it was. The evidence tends to support the inference that William Bolton, having previously made.the will of which his brother, Samuel Bolton, Jr., is now the executor, in which Samuel *447was the residuary legatee and devisee, and in which some provision had been made for his sister, Mrs. Dugdale, and being near,his death, and in contemplation of it, had in mind a desire to make further testamentary provision for her and some others, and in this frame of mind told Samuel Bolton, Jr., what he wanted done, and Samuel promised to do the best'he could to carry out his wishes. It may be inferable that, in reliance upon Samuel’s promise, William refrained from making further testamentary provision for Mrs. Dugdale. Samuel’s setting apart upon his books the $15,000 for Mrs. Dugdale and paying her part of it, and the interest on the rest during her life, are significant facts. If upon the hearing the infer- ■ ence which I have stated, should be found *as a fact, then Samuel should complete what he undertook to do, otherwise he would perpetrate.a fraud upon the testator and Mrs. Dugdale, or her representatives, the present applicants. (Williams v. Fitch, 18 N. Y. 546; Matter of O’Hara, 95 id: 403 ; Amherst College v. Ritch, 151 id. 282, 323.) An absolute promise by Samuel, the residuary legatee, was not necessary. (Fairchild v. Edson, 154 N. Y. 199.)
Order affirmed, with costs.