(dissenting). There was competent, proof of an agreement between Willard D. Ackley and Sarah E. Ackley, his wife, to make mutual wills whereby the survivor was to receive the property of the one first dying, and, after using the income and so much of the principal as was necessary or desired by the survivor for care and maintenance, the remainder, if any, was to be distributed by the will of the survivor to the. heirs and next of kin of the one first dying. One of the witnesses was disinterested and the other the husband of one of the plaintiffs. The latter related a conversation between Mr. and Mrs. Ackley wherein it was suggested by him, and agreed to by her, that if he should die first she was “ to leave his stock in his name and not to bother to transfer it except the dividend, and that at the time of her death it would go to his heirs.” She did not transfer the stocks and told her nurse that she did not intend to do so. This may be considered as a partial compliance with the oral agreement and to corroborate the making thereof. The agreement between Mr. and Mrs. Ackley is consonant with human emotions. The elderly couple had no descendants. Each had a sister surviving. The thought of each would naturally be directed first toward the comfort of the survivor. That accomplished, the remainder, if any, should in all fairness go to the flesh and blood of the original owner.
The trial court saw the witnesses and received a truer picture as to the claimed making of this oral agreement than can be gained from a reading of the printed page of the record. We are to decide a question of fact. I believe the decision of the trial court should be sustained.
Heffernan, J., concurs.
Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs.
The court reverses findings of fact numbered 4, 5 and 6, and disapproves all conclusions of law; and makes a new finding of fact that no agreement to make mutual wills, as claimed, was made, and no such mutual wills were made.