This suit is based upon the claim that the property in question belongs to the plaintiff under a contract made by his mother with Cyrenius C. Townsend and Mary J. Townsend, his wife (the former' owners thereof, now deceased), the nature and character of which will be stated presently.
In 1861, when the plaintiff was between three and four years of age, he was taken frpm the Y ates county poor house by Cyrenius 0. Townsend and Mary J". Townsend, his wife, to their home, brought up by them and lived with them until he *226. married. After his marriage he and his wife resided for several years upon one of the farms' in controversy here. The Townsends have died, the wife in February, 1905, and the husband in March, 1905.' It" is now claimed' that within a short time after the plaintiff was taken by the Townsends an, agreement was made between them and the plaintiff’s mother that the Townsends should take and receive the plaintiff as their child, and that the mother should surrender and give up all right to the child to the Townsends, and upon the death of the. Townsends the plaintiff should have all their property,' provided they had no children of their own, and- if they did have children then that he share equally with them.
The learned trial judge finds that the contract was made as ' has been stated, and that it was performed by the plaintiff’s mother, as appears by the fifth, sixth and seventh 'findings of fact. By the eighth finding of fact he also finds that on the 24th day of January, 1862, an agreement in writing was made between the Townsehds and the mother as follows:
“Agreement made this 24 day of January, 1862, between - Oyrenius C. Townsend and Mary J. Townsend, of the Town of Jerusalem, Yates Ob, N." Y., partys of the first part, and Harriett Eaves party of the second part in consideration of one dollar, partys of first part agrees to take Charles Eaves son of Harriett Eaves and give him a good education and at our death he is to have all of our property providing we have no children of our own if we do have children then he shall share equal with them. It is further agreed that Harriett Eaves gives up all claims on her son and will not try to get the hoy away.
“ CYRENIUS C. TOWNSEND, , “MARY J. TOWNSEND, ' “HARRIETT A. EAVES.” -
If the decision rested upon the oral contract alone, it could not well he claimed that the plaintiff had any grounds for maintaining the action.- Such claims,. based upon oral agreements, have of late years rarely been sustained in this court or by the Court of Appeals. The Court of Appeals in Hamlin v. Stevens (177 N. Y. 39) refused to sustain a claim based upon such an alleged contract, and the rule laid down by Judge *227Vann in that case has, I think, been uniformly adhered to. Chief Judge Cullen in the recent case of Taylor v. Higgs (202 N. Y. 65), after referring with approval to the doctrine.of Hamlin v. Stevens, says: “In Hamlin v. Stevens (177 N. Y. 39) Judge Vann, speaking for the court and referring to agreements of the character here sought to. be enforced, said: Contracts of the character in question have become so frequent of recent years as to cause alarm, and the courts have grown conservative as to' the nature of the evidence required, to establish them, and in enforcing them, when established, by specific performance. Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises. * * * Such contracts should be in writing, and the writing should be produced,. or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses.’ (p. 47.) In Rosseau v. Rouss (180 N. Y. 116) the same judge, again speaking for this court, said: ‘ Thus, the evidence relied upon to establish the contract is, first, the testimony of the mother, who tried to swear $100,000 into the pocket of her own child, and, second, the testimony of witnesses who swear to the admissions óf a dead man. The former is dangerous; the latter is weak, and neither should be acted upon -without great caution. We have repeatedly held that such a contract must not only be certain and definite and founded upon an adequate consideration, but also that it must be established by the clearest and most convincing evidence.’ (p. 120.) Tested. by these rules it seems to me the plaintiffs did not establish their case.”
But it is urged that there was. a written contract here, which has been established by the production of the writing and corroborated by declarations made by the Townsends and surrounding circumstances. I am not convinced, however, that the writing has been established. While the learned trial justice saw and heard the witnesses, and undoubtedly was better able to form a correct opinion as to the credibility of their testimony than we are, I think, the undisputed circumstances cast such doubt upon the genuineness of the writing as to leave it unproven; and without it the action must fail.
*228The question as to whether this writing was ever made by the Townsends depends 'almost entirely upon the opinion of wit-' nesses' as to whether the signatures to the writing are genuine; and the evidence is very strong that-they are not. The plaintiff’s mother, as well'as the Townsends, has died, and no one. is produced who ever saw the writing until after the death of the Townsends. Not even the plaintiff knew about it until, as he-claims, he found it among some papers after their death, and after he had received legal advice that he would be unable to ■establish his claim by an oral contract.
He claims that he found the paper in the possession of á granddaughter of his mother; that there were two wooden boxes, holding a bushel apiece of old papers, and that he found this paper in an envelope with a pension voucher. The granddaughter says she herself had found it in a tin box; that she . burned the other papers but kept this, because, as she states, “Prank Townsend [the plaintiff] will want to know who is the hem of that property.”. 6
The plaintiff undertook to' show who drew the paper. A witness was called who, according to his testimony, was then-about nine years of age. He claims that he was at the Townsends when the plaintiff was there in 1861, and that there were some papers drawn there about six weeks after the' plaintiff came there. He names several friends and neighbors of the Town-sends who were there. Bert Cowen, the justice of the peace, and his mother, the witness and his mother and the plaintiff’s ‘mother.. 3h response to the question as to whether he knew which person drew the papers, he replied; “I think the woman did it,” but he does not state which one. He further stated that ' the paper Was read in his hearing, but that he did not remember the substance of it; that after it was read he saw names signed; that hisx mother and the Townsends :sat at a table; that the plaintiff’s mother was sitting around there.' He further testified that he thought she made her mark to this instrument; but her signature to the paper produced is in excellent handwriting and without any mark.
I need not call attention further to his testimony, It is very evident that his recollection is hazy and his testimony of little importance. It is not claimed that any of the persons *229present was a lawyer, and yet, while seemingly the wording of the writing may he somewhat awkward, it is legally perfect, embodying just enough to make it a binding contract. Whoever drew it could not have done better with the decision of the Court of .Appeals before him, in the case of Winne v. Winne (166 N. Y. 263),. rendered some forty years after the instrument here bears date. The circumstances are such as to invite serious inquiry as to whether the writing here is not a spurious output of someone who had before him that decision, where such a contract as this writing purports to be was-upheld.
Furthermore, there is evidence quite convincing to me that the paper upon which the writing was drawn, although old in appearance, was nót as old as it looked, and was of a kind not made until some years after the instrument bears date. Another conceded circumstance is the fact that nearly thirty years after the plaintiff went to live with the Townsends, in 1889, when he was living away from them, he brought an action against Cyrenius C. Townsend to recover for services rendered by him after he was twenty-one years of age, which was settled, and upon that settlement, he gave Townsend a general release of all claims against him. It may be that the release would not have the effect to cancel any contract, such as is claimed here, or to release the Townsends from any claim thereunder; but it is a circumstance which may properly be. considered upon the question, whether in fact any such arrangement or contract ever existed, as the plaintiff now claims.
- It is true that the plaintiff produces witnesses who swear to declarations claimed to have been made by the Townsends which tend to sustain his claim. But such evidence, at the best, is as a rule not very satisfactory. However sincere and honest they may be, it is a long time for witnesses to carry in their memory conversations in which they had no particular interest, and where, as here, the testimony of the persons who it is claimed made the declarations cannot be had, such evi- 1 dence is still more unsatisfactory.
While the plaintiff and his mother seem to have had little to do with each other after he went to live with the Townsends. *230especially during the later years of her life, yet if this contract was actually máde.in 1862, as now is claimed hy the plaintiff, and was in existence during all these years, it is singular that the plaintiff should never have known about it until after the death of the Townsends and the death of his mother; and that no living, witness can be produced who gives, credible testimony of the making of this -contract.
More might be said upon either side of this Controversy, but I will simply say in conclusion, that while it may be that the Townsends ought to have given this property to the plaintiff, I think the evidence has not established that they did so or that the plaintiff has any legal right thereto. As it seems to me, the evidence is so unsatisfactory and' lacking in convincing force, that it ought not to be held sufficient to establish a transfer of real property,
I think the judgment should be reversed, upon the law and the facts and a new trial ordered.
• All concurred, except. Spring and Williams, JJ., who dissented in an opinion by Spring, J.