(dissenting). The defendants appeal from a judgment, after trial, which impresses a constructive trust in favor of the plaintiffs, who are the two children and the three grandchildren of the first marriage of Charles F. Oursler, better known as Fulton Oursler, on that part of the estate of Grace Oursler, his second wife, as would have passed to the plaintiffs under paragraph B of article II of her will, dated March 16, 1951. It should be noted, at the outset, that this action is not one for specific performance or to enforce an agreement for mutual and reciprocal wills.
The plaintiffs, William Charles Oursler and Helen O. S. Balaber, are the children of Fulton Oursler by his first marriage. In 1925, he married for the second time and by that marriage to Grace Perkins1 Oursler there were two children, the defendants, April 0. Armstrong and Charles Fulton Oursler, Jr.
In 1951, Grace and Fulton Oursler consulted their attorney, a member of a reputable law firm, with reference to planning their estates and preparing their wills. Proposed wills were drafted by a member of the firm, expert in such matters, and forwarded to the parties. Fulton approved his will, but Grace, in a note in her handwriting, requested some changes. She expressed a desire to bequeath all her property to her husband absolutely and forever, in the same manner as Fulton had provided for her in his will. To that extent, at least, there can be no implication that the survivor received property other than as an outright gift. The language she used was indicative of her complete ignorance of legally permissible devises, and her reference to ‘ ‘ tokens of remembrances ’ ’ to the plaintiffs and others, may well negate any inferences of an agréement for reciprocal wills or for a trust arrangement.
The wills, as finally executed, were substantially similar, but contained no provisions indicating that they were to be mutual or reciprocal documents. Moreover, no independent written agreement for mutual wills or for the creation of a trust was ever executed.
Fulton died in 1952 and his will, devising all of his property outright to- Grace, was duly probated. On January 21, 1955, Grace executed a new will, revolting the one- made in 1951, and in the new testament she made no provision for the plaintiffs. *202She died in 1955 and the will executed that same year was admitted to probate on January 3, 1956. Thereafter this action was commenced against the executors of the estates of both Grace and Fulton.
If, as the plaintiffs claim, a trust was created by a valid promise made by Grace to hold Fulton’s property devised to her for specific purposes, it cannot be argued that the trust came into being at any time other than at Fulton’s death. Under the circumstances, it is significant that no action was commenced to impress the trust until after Grace’s death some years later.
The action was tried on the issues raised by the third amended complaint. The second amended complaint, which it superseded, was predicated upon an agreement between Grace and Fulton Oursler to make reciprocal wills for the benefit of the children of both his marriages. Under the abandoned complaint, the plaintiffs were foredoomed to failure because of the bar of the Statute of Frauds to such an oral agreement. Moreover, reciprocal wills, standing alone, do not evidence a contract between testators or a representation that the survivor will not alter or revoke his will (Edson v. Parsons, 155 N. Y. 555).
The plaintiffs’ theory at the trial was that Fulton Oursler bequeathed Ms property to Grace upon an express agreement that she would hold it in trust, two thirds for the benefit of the children and one third for the grandchildren of both marriages.
The general principle involved in this litigation is clearly expressed in many decisions. Judge Cabdozo, at Special Term (Golland v. Golland, 84 Misc. 299, 306), stated it thus: “ where a devise is induced by the promise, express or implied, of the devisee, to devote the gift to a lawful purpose, a secret trust is created; and equity will compel him to apply the property in accordance with the promise by force of which he procured it * * * It is not the promise only, nor the breach only, but the promise and the breach combined with the extortion of the property from the owner upon the faith of the engagement, which puts the court in motion ”. (See, also, Ahrens v. Jones, 169 N. Y. 555; Amherst Coll. v. Ritch, 151 N. Y. 282; Hermann v. Ludwig, 186 App. Div. 287, affd. 229 N. Y. 544; Matter of Buehler, 186 Misc. 306, affd. 272 App. Div. 757).
The trial court properly decided that the proof did not establish a promise sufficient to create an express trust. Our problem is to determine whether the proof is sufficient to establish a constructive trust. I think it is not.
There was no proof that Fulton ever saw Grace’s memorandum or acted in reliance thereon. The writing is not instinct with a promise or an agreement to take Fulton’s estate in trust. *203Nor does it meet the test specified in Matter of Levin (302 N. Y. 535, 541) that the- writing “ must be by and of itself a complete expression of the intention of the parties without reference to paroi evidence (Stulsaft v. Mercer Tube & Mfg. Co., 288 N. Y. 255).”
The eminent lawyer consulted by the decedents testified fully. Objection to his testimony, based on section 353 of the Civil Practice Act was overruled. I agree that it was properly received. His testimony, given full credence as it should be, does not prove an agreement by Grace to take Fulton’s property in trust for the children. Counsel stated that he had several discussions with the parties and “ went over the planning of the estates in relation to the flow of property from Grace to Fulton, Fulton to the children; from Fulton to Grace, Grace to the children. * * * I don’t remember a single definite word that 'anybody said to me and the letter doesn’t even refresh my mind much on that question. ’ ’
As already indicated, the 1951 wills were drafted by a member of the firm, after consultation with the parties. That partner was present at the trial but was not called as a witness by counsel for the plaintiffs. I find it significant that the office records pertinent to this matter were not sought by the plaintiffs. Certainly it is a fair inference that in a large law office, some work sheets, diary entries or other memoranda would be available, to establish or assist in proving an agreement to hold the property in trust, if one was made. Nor is the conclusion unreasonable that if there was -an agreement for mutual wills, or for the devising of property in trust, there would have been writings in fulfillment of statutory requirements providing therefor. The absence of such documents speaks strongly for the nonexistence of a promise creating a secret trust.
The two adult plaintiffs testified that at the reading of Fulton’s will, Martin F. Armstrong, Jr., an attorney and the husband of the defendant April Oursler, requested them to sign waivers, stating that Grace would hold the property she received, for all the children and grandchildren. Armstrong denied the statements attributed to him.
John C. Farrar, a friend of Fulton for 30 years, who knew Grace and the children quite well, was permitted to testify to a conversation with Fulton, when Grace was not present. Farrar stated: “He [Fulton] said that one never knew what would happen. They were going abroad and that they had made an arrangement, I cannot remember whether he said will or not, this is an odd thing, hut I can’t; but that they had made an arrangement so that if anything happened to either of them the *204children — four children — would be taken care of. And as I remember it he said it was in trust. I do not remember his exact wording. ’ ’
Henry Denlcer, friendly with Fulton and the plaintiff, W. C. Oursler, testified that in connection with the unconsummated formation of a corporation, in the course of which Fulton requested a certain stock arrangement, Fulton explained that he and Grace had executed wills according to which the survivor would take the stock in the enterprise to be held for the four children and the grandchildren. At best, this testimony bears on an agreement for reciprocal wills, an issue abandoned by the plaintiffs. Nevertheless, the agreement as drafted contained no reference to reciprocal wills. Although Denker testified that Grace entered and left the room during the conversations, he uttered not a word at the trial as to her acquiescence in any of the statements attributed to Fulton. He testified that after Fulton’s death, Grace told him she would not consummate the transaction because she was “ obligated to take care of Fulton’s properties for his four children ”.
In sum, the proof consists of a piecing together of the provisions of the- 1951 wills with general statements of intention and vague and indefinite discussions concerning the testamentary desires of Fulton and Grace. Thus the testimony offered has little probative force binding’ Grace to a constructive trust agreement. Evaluating the proof in a light most favorable to the plaintiffs, I must conclude that what they have sought to do, and successfully so far, is to engraft upon Grace’s estate, an unenforcible, incomplete and invalid arrangement for mutual wills in the guise of a constructive trust. Nor does the evidence rise to a firm commitment for mutual wills, absent the Statute of Frauds. At best it indicates a mere testamentary intention in each, and a hope or expectancy on the part of the other. Under such circumstances the proof was insufficient (Frankenberger v. Schneller, 258 N. Y. 270).
Before a court of equity declares a constructive trust upon oral testimony, there should be a 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.) Not alone is there a failure to establish a constructive trust by clear, positive and definite proof, but, in my view, the evidence is so inadequate that it does not attain the level of a prima facie case. “Insufficient evidence is, in the eye of the law, no evidence.” (Quoted by Cardozo, J., in Matter of Case, 214 N. Y. 199, 203, from Pollock v. Pollock, 71 N. Y. 137, 153.) *205We should not appnove this attempt .to circumvent the Statute of Frauds. Even before it was amended in 1933, it was the rule that testimony offered against 'a decedent’s estate required careful and critical scrutiny (see Matter of Block, 258 App. Div. 342, 346 and cases cited). It is a fair assumption that when the Legislature enacted the amendment, it was aware of the cases cited in the opinion of my distinguished colleague, Mr. Justice Bergax, which had all been decided before the statute was amended.
There are other indicia in this record that point to the plaintiff’s resorting to the device of a constructive trust for the purpose of achieving the effect of an agreement for mutual or reciprocal wills. Although the theory at the trial was a trust agreement, .the prayer for relief, probably adopted in toto from the second amended complaint, sought the specific performance of the pertinent provisions of Grace’s revoked 1951 will. In consonance therewith, the judgment imposes a trust not alone on all of Fulton’s property devised to her, but on what may well be the bulk of her estate. It requires the executors to account for property bequeathed to the plaintiffs by a will unenforcible as a testamentary document. Moreover, the result strips Grace’s estate of the income from and the increment to the property she received from Fulton, despite the complete lack of proof that the income from Fulton’s estate was to inure to anyone other than Grace.
There is another .serious consequence flowing from the erroneous application .of the principle of constructive trusts to this case, which, if 'anything, is one involving an alleged breach of an agreement for reciprocal wills. The determination deprives Grace, as the surviving spouse, of her statutory right to a share in Fulton’s estate, as in intestacy (Decedent Estate Law, § 18). Fulton, himself, could not have accomplished that by eliminating her as a beneficiary under his will. Nor would an oral waiver of her right to elect against the will have been effective. Yet, by finding a constructive or secret trust upon oral proof, the judgment entered thereon achieves that result and in that respect circumvents the statute.
In Matter of Buehler (186 Misc. 306, 313, 314) an effort was made to impress a trust, as here, upon all the property a widow owned at the time of her death including that received from her husband. It was held the relief sought was too broad. The court .said: “ equity would not be warranted * * * in impressing a trust upon all of deceased’s property (Rasetter v. Hoenninger, 214 N. Y. 66; Leary v. Corvin, 181 N. Y. 222; Seaver v. Ransom, supra). ”
*206Although Rubin v. Irving Trust Co. (305 N. Y. 288, 298-299) treated with an oral contract to make 'a will, the language used by the Court of Appeals may well be applied here. It was there stated that ‘ ‘ The nature of the contract is such that actions for its enforcement are instituted after the death of the promisor and consequently the difficulty of disputing the claim is enormous. Since claims based upon such oral contracts are frequently asserted and are unusually suspect * * * the dangers of injustice are as great as those which militate against the allowance of oral wills.”
For all of the foregoing reasons, I am constrained to dissent, and to hold that the plaintiffs have failed to sustain their cause of action. The judgment, therefore, should be reversed and the complaint dismissed.
Breitel, J. P., Rabin and McNally, JJ., concur with Bergan, J.; M. M. Frank, J., dissents in opinion.
Judgment affirmed, with costs to the respondents.