(dissenting):
I dissent. This judgment is entered upon the 12th finding of fact, which finds “ that the defendant, upon the receipt of the letter set forth in the seventh finding, represented to the said Sarah Morris de Yaugrigneuse that her wishes in regard to the said $10,000 legacy would be respected and carried out by him.” The defendant had been the attorney for the testatrix, had prepared her will and was the residuary legatee. On July 30, 1903, he received from her a letter stating that the testatrix had read of the death of a person to whom she had given a legacy of $10,000, and stating: “ How remember, please, when you get hold of my will *887to strike out Mrs. Eutkerfurd, inserting instead name of Bev. W. W. Eutkerfurd, and do it as soon as legality permits.” Tkis was tke only representation or statement of tke testatrix to the defendant proved. Tke testatrix lived nearly nine months after writing tke letter, and made no change in lier will. It appeared tkat subsequently, on tke 4tli of March, 1904, tke testatrix executed an instrument in which ske stated tkat she desired tkat certain articles of personal property should be delivered to tke plaintiff, but in tkat instrument tkere was no mention made of tkis $10,000 legacy. It seems to me tkat this finding is without tke evidence to sustain it. Tke letter in question merely indicated an intention of tke testatrix to change lier will, and directed tke defendant, who was her lawyer, to make suck change. Ske never again referred to tke matter, so far as appears in the record, and tkere is not tke slightest evidence tkat tke intention tkat ske had in April, 1903, continued until her death. Ske apparently recognized tkat the legacy could not be paid to tke plaintiff without a change in her will. Ske asked for no promise from tke defendant to pay tkis legacy to tke plaintiff, and no promise was ever given to her. The statute prescribed certain formalities which must be complied with before a testamentary disposition of property can be enforced, and while the courts have enforced certain promises of a legatee as to the disposition of a legacy, where a failure to perform such a promise would have been a fraud upon both tke testatrix and the person intended to be benefited by the testamentary disposition, a promise has never been implied except under circumstances which left no doubt as to the intention of the testatrix and the conditions under which the legacy was given. In considering some of the cases upon which it is sought to sustain tkis judgment tke distinction is apparent. Thus, in Matter of O’Hara (95 N. Y. 403) the court said that it was rendered certain by the evidence that the testatrix made the absolute devise and bequest upon tke suggestion of a necessity therefor by one of the legatees, and upon tke understanding tkat he and his associates would faithfully and honorably carry out her expressed intentions. Tke court said : “ For it is not possible to doubt tkat if tke legatees had said — we will not promise; we will do as we please; we will not be even honorably bound not to take tkis money for ourselves — tke absolute bequest would never. *888have been made. It matters little that McCue did not make in words a formal and express promise. Everything that he said and everything that he did was full of that interpretation. * * * If
he does not mean to act in accord with the declared expectation which underlies and induces the devise, he is bound to say so, for his silent acquiescence is otherwise a fraud; ” and it was this same principle upon which Amherst College v. Ritch (151 N. Y. 282) was decided. Edson v. Bartow (154 N. Y. 215) illustrates the distinction between a case where a promise by a legatee is made and one where there was no such promise. Mr. Parsons was held to have made a promise to carry out the wishes of the testatrix, because he drew the will and was present at its execution and acquiesced in the reason given for making the legacy direct to him rather than to the beneficiaries that the testatrix intended; but as to those who were not present no such promise could be implied and the legacy was upheld. In the absence of an express request of the defendant to pay-this legacy to the plaintiff, or any representation or statement upon which the testatrix relied that the defendant would pay the legacy, or the existence of such a position that the defendant was bound to express his refusal or lead the testatrix to believe that he would comply with her request, I do not see how any promise can be implied. We simply have a letter declaring an intention to change her will, followed by no further request on the subject, and no actual change of the will. The statement in the letter was not a direction to the defendant to pay the legacy to the plaintiff, but a direction to the defendant that when he got hold of the will to strike out the deceased legatee and insert the name of the plaintiff, and to do it as soon as legality permitted. There was no direction to the defendant to pay; no statement that he was expected to pay without a change of the will, simply a direction to change the will, which was never consummated. How it can be said that this implied a promise on behalf of the defendant to pay this legacy I cannot understand.
1 think that the judgment should be reversed and the complaint dismissed.
Laüghlin, J., concurred.
Judgment affirmed, with costs.