In re the Accounting of Levin

Desmond, J.

(dissenting). Decedent’s will divided his estate equally among his three children. Objectants, two of those children, sought in this accounting proceeding (brought by the third child, Herman, their coexecutor) to compel performance by the executor of their father’s promise, made in the last two sentences of the letter quoted below, to leave all his property to the two objectants:

2712 Golden Avenue,
Bronx, New York.
September 16th, 1942.
Mrs. Yetta Levin,
2712 Golden Avenue,
Bronx, New York.
Dear Yetta:
This is to confirm our agreement, as follows:
You have under date of September 14, 1942, made a Will whereby you have bequeathed and devised .to me the entire net income of your estate after the payment of certain premiums, if any, on life insurance carried by me. You have done so in *542the knowledge that if you should predecease me I will leave my entire estate to our children Max Levin and Belle Burrill. I have this day made a Will in which I have devised and bequeathed my entire residuary estate to our children Max and Belle in the event that you should predecease me.
This letter is to confirm my agreement that in the event that you should predecease me, and that at the time of your death you should not have revoked your said Will made on September 14,1942,1 will not revoke or alter my said will made today.
Affectionately,
Morris Levin ’ ’

Yetta, to whom that letter was addressed and delivered, was decedent’s wife and "the mother of objectants (Herman was decedent’s child by an earlier marriage). Yetta had made a will, on the date described in the letter (September 14, 1942) — but that will was not quite as'described in the above letter. Actually, Yetta’s will had not, as per the letter, left to her husband a life interest in her whole estate, but had included in that will a provision, not recited in the above letter, bequeathing certain bank accounts to objectants. In other words, the description, in decedent’s letter to his wife,.of his wife’s previously made will, omitted all reference to the wife’s bequest of the bank accounts to objectants, her two children.

The Appellate Division ruled against objectants. It decided that decedent’s above-quoted letter to his wife did not comply with the Statute of Frauds (Personal Property Law, § 31, subds. 1, 7). The letter was, said the Appellate Division, unenforcible because, though it pertained to an agreement performance which was 11 not to be performed before the end of a lifetime ” and, additionally, an agreement “ to bequeath property ” (Personal Property Law, § 31, subds. 1, 7; 276 App. Div. 739, 741), it was, so held the Appellate Division, not a complete memorandum of that agreement. There was, pointed out the Appellate Division, a variance between it (the letter) and the actual agreement between the parties. The Appellate Division held inadmissible the uncontradicted proof put before the Surrogate that the parties had, in truth, orally agreed to the actual terms of Yetta’s will as written, and had orally agreed, at the same time, on decedent’s promise as later clearly written into *543the above-quoted letter. In other words, there was, at the trial, undisputed testimony by an attorney, who had represented both husband and wife at the time of the agreement, that the agreement was oral and that Tetta’s will, made before the letter passed, complied in all respects with that oral agreement. The inference, which the Surrogate drew from that proof, was that the omission, from the description of Tetta’s will in the first part of decedent’s letter, of the bank account legacies, was inadvertent. However, it was the Appellate Division’s view that such paroi evidence was not validly received to correct what the court considered the incompleteness of the letter as a memorandum to satisfy the Statute of Frauds.

We note first, that the proceeding was not tried on any Statute of Frauds theory. That law question was never mentioned by counsel before the Surrogate, nor is it alluded to in the Surrogate’s opinion. Herman Levin’s counsel defended against the objections on two grounds: first, that there was no consideration for decedent’s promise since his wife’s will gave him no more than he could obtain by an election under section 18 of the Decedent Estate Law; and, second, that any consideration, running from the wife for the husband’s promise in the letter, failed when it turned out that the wife’s will was not exactly as described in that letter. We will spend little time on either of those contentions. As to the first, the wife’s promise and her signing of a testament containing bequests to the husband, clearly made out consideration for his promise to her. The second argument, that is, that the wife breached her agreement, falls if the Surrogate was right in taking the proof as to what the oral agreement was. As we read this record, there never was any .objection to that testimony, any more than there ever was any pleading, statement or mention of the Statute of Frauds, in the Surrogate’s Court. However, to face up to the questions of law argued to us, we will assume that the evidence point and the Statute of Frauds point are in the case.

The Statute of Frauds requires only that there be a written “ memorandum ” of a promise of this kind. It is too well settled to need discussion, that the underlying agreement may be oral so long as there be a written memorandum of the promise sought to be enforced, signed by the party against whom *544enforcement is demanded. That this letter was a subsequent written memorandum of a previous oral pact appears on the letter’s face, indeed in its very first phrase. No one now disputes that the letter was properly in evidence, as was the wife’s will, made two days before. Thus we had in the record the letter containing the absolute promise which decedent later breached, and the wife’s will itself, plus a showing that the letter contained a misdescription of that will. The letter contained no promise by the wife. Her oral promise had already been carried out by her execution of her will. The Statute of Frauds required, for enforcibility of the husband’s oral promise, a written, signed memorandum of that promise, and surely we have that in his letter. The Statute of Frauds has nothing whatever to do with the wife’s oral engagement. Herman Levin could, of course, point to the terms of the wife’s will in an effort to prove that she had, in fact, by the provisions of that will, breached her earlier, oral agreement. But any such contention, by Herman, permitted, and indeed required, testimony as to what, in fact, Yetta had orally agreed to. That testimony came from the lawyer, and it was clear, undisputed and accepted by the Surrogate. It demonstrated (or at least justified the Surrogate’s finding) that, although the bank account bequests in Yetta’s will were not mentioned in the letter, such bequests, to be made by Yetta, had been a specific term of the prior oral agreement between husband and wife. We conclude, therefore, that the Surrogate, in requiring the husband’s estate to perform the promise memorialized in the letter, violated neither the Statute of Frauds nor any rule of evidence.

All the members of this court are in agreement as to the two other matters argued before us (Herman’s claims based on alleged services and loans) so we will not discuss them.

Since the Appellate Division modified on the facts as well as the law, there would have to be, in our view, a new trial as to objectants’ claim only. We think the decree should be modified accordingly, with costs to abide the event.

Lewis, Conway and Froessel, JJ., concur with Dye, J.; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Fuld, J., concur.

Order affirmed.