(dissenting):
I think the. respondent proved a meritorious claim under a contract supported by a good consideration. The Statute of Frauds has been raised, however, and seems to be a bar to the enforcement of the agreement. If the oral agreement, by its terms, was not to be performed by either party within one year, it was void under the Statute of Frauds. It is clear that Mrs. Hayes agreed to perform her pa,rt in advance by setting aside in the name of claimant $3,000 “ which the parties then estimated to be the sum sufficient to defray all of his necessary expenses during the said course,” which was a course of study of two years. The surrogate has found that this was her agreement. It has also been alleged by the claimant in his claim and found by the surrogate upon clear proof, that the claimant was to “ enter said institution for a course of study of two (2) years.” It must have been the intention of the parties, by necessary implication, that claimant *723was to pursue his studies in good faith for the full two-year period as a part of the contract, because the measure of the sum given to him was his estimated expenses for that period. Good faith and fair dealing could not have required less of him. Of course, death or incapacity qn his part might have reduced the period of actual study to less than one year and without a breach of contract on his part. This would arise, not as an implied term of the contract, but by operation of law. His agreement to pursue his studies in good faith for the two-year course was personal in character. Performance by him personally was of the essence of the contract. In the case of such a personal contract, death or incapacity excuses performance. (Spalding v. Rosa, 71 N. Y. 40.) The law operates in such a case to relieve from performance. It does not operate to supply one of the terms of the agreement.
For these reasons I am convinced that the decree should be reversed and the claim dismissed, on the ground that the agreement was void under the Statute of Frauds and cannot be enforced.
Cochrane, P. J., concurs.
Decree modified by adding thereto, after the words “ at his disposal and under his control,” the words “ by depositing said moneys in the Merchants’ National Bank of Plattsburgh in the name of Harold A. Robinson,” and as so modified affirmed, with costs payable out of the estate.