Stripped of all extraneous matters, the plaintiff advanced to Martha Becker, deceased, his daughter, the sum of $4,000, upon an agreement, assented to by defendant James O. Becker, that it should be repaid to him in case of the death of the said Martha during her confinement, then near at hand. The sum so advanced was paid toward the purchase of a farm, the title to which was, at first, taken in the name of defendant James O. Becker, the husband of Martha. Afterwards, and by the plaintiff’s request, the title to said farm was conveyed to Martha, subject to a mortgage of $2,000 which her husband had given thereon for the balance of the purchase-money. About a month thereafter, Martha died, leaving no child surviving her, but leaving a will whereby all her property was devised and given to her husband, and Robertson named as executor.
This seems a plain case of a contract between a father and his married daughter, by which the $4,000 was advanced to and for the sole benefit of the daughter. The father does' not want the money to go into the Becker family. After the deed is first made to James O. Becker, plaintiff becomes dissatisfied, and wants his daughter to have the benefit of what he has advanced ; and it is finally arranged that the wife, Martha, shall have the title to the farm in consideration of the advance made to, and for her by her father. It becomes, therefore, her separate estate, and morally, if not equitably, charged with the payment to her father of the $4,000 in case of her death.
The making of the will thereafter does not affect the question under consideration. It is an ordinary contract by Martha, for a good consideration, to pay to her father $4,000 in a certain event, which has happened. I can see no defense to the action. The precise contingency has happened upon which Martha and her husband agreed this money should be repaid. But the husband is now here, by his answer, claiming all of Martha’s property under, her will, and ignoring such contract and her obligation arising therefrom. -
*371In my opinion, the learned judge was correct in holding that the defendant Robertson, as executor, was indebted to the plaintiff in the sum of $4,000 and interest, and ordering judgment therefor.
The case of Marquat v. Marquat (7 How., 417), sustains the decision in this case in many of its features, more especially as to the nature of the complaint; the relief to which plaintiff is entitled under the same; the position of James O. Becker as co-defendant, and the dismissal of the complaint, as to him, without costs. So far as that case is hostile to the plaintiff in this action, it was reversed in the Court of Appeals. (12 N. Y., 336.)
I think the judgment is correct, and should be affirmed, with, costs against the appellants personally.
Present — Learned, P. J., Bocees and Boabdman, JJ.Judgment affirmed with costs against appellants personally.