(dissenting). There is no clear and convincing evidence that defendant ever made the promise referred to in the undated notes left by decedent. If the alleged promise had been made prior to July 6, 1942, there is every reason to believe that a reference to such promise would have been inserted in the will executed by decedent on that date. As the will remained, it stated that it is “ my primary purpose in so far as it is possible, to provide for the economic security of my beloved husband ” and that the children “ will be amply provided for through their interests in the Cobleigh and Teter estates.”
Plaintiffs also attempted to show that the reason decedent failed to revoke the will was because she relied upon defendant’s promise to leave everything to the children. Proof was adduced that in February, 1944, Mrs. Brenner had instructed her attorneys to revoke or modify her will and to prepare a new one under which the children would receive her property upon her death. It was further established that in March, 1944, defendant communicated with Mrs. Brenner’s attorneys and requested them to do nothing further regarding the will until they received additional instructions. Mrs. Brenner died in February, 1945. In the meantime no additional instructions had been given to the attorneys.
This circumstantial evidence does not exclude every reasonable theory other than that Mrs. Brenner failed to revoke her will because she was relying upon a promise defendant allegedly made. Many explanations reasonably could be advanced as to what led her to change her mind a month after expressing her intention to make a new will.
The trial court found that Mrs. Brenner left her property to defendant upon his promise, or at least in the hope and expectation, that “ everything we have ” will ultimately go to the *686children. Doubtless, decedent may have entertained the hope and expectation that everything would ultimately go to her children. But that is not enough. A mere expectation and a promise not relied upon by decedent are insufficient to warrant a finding of fraud by the recipient in holding the property as his own. (Miller v. Hill, 64 Misc. 199, affd. 137 App. Div. 378, affd. 203 N. Y. 646; Amherst College v. Ritch, 151 N. Y. 282, 323; Rutherford v. Carpenter, 202 N. Y. 532; Housman v. Commissioner of Internal Revenue, 105 F. 2d 973, 975, certiorari denied 309 U. S. 656; 3 Bogert, Trusts and Trustees, § 499, p. 239.) Before a court of equity may declare a constructive trust upon verbal proof, notwithstanding the provisions of the statutes relating to wills, there must be clear, positive and definite proof of the alleged trust. (Wallace v. Wallace, 216 N. Y. 28, 39; Tracy v. Danzinger, 253 App. Div. 418, 421, affd. 279 N. Y. 679; Strype v. Lewis, 352 Mo. 1004, 1011.)
Any finding that decedent, in reliance upon defendant’s promise, orally agreed to write her last will in defendant’s favor, or that she agreed thereafter not to revoke it upon such alleged promise, would be based upon pure guess work and speculation.
For the foregoing reasons the judgment should be reversed and the complaint dismissed.
Clennon, J. P., Callahan and Shientag, JJ., concur in Per Curiam opinion; Dore, J., dissents in part and votes to .affirm; Cohn, J., dissents in opinion.
Interlocutory judgment modified in accordance with opinion Per Curiam and as so modified affirmed, without costs. Settle .order on notice.