Sheehy v. Keane

227 A.D. 635

Opinion

Judgment reversed upon the law, with costs, complaint dismissed, and judgment directed for defendants Kane canceling and discharging the bond and mortgage, with costs. The finding that there is no proof that the making and delivery of the mortgage was without consideration is against the weight of the evidence. While the record discloses that the testatrix intended to bequeath to her brother and sister $2,000 each, the method adopted by her failed of its purpose, because it was a voluntary and unenforcible promise of an executory gift. (Holmes v. Roper, 141 N. Y. 64; Matter of James, 146 id. 78; Welch, v. Graham, 124 N. Y. Supp. 945; affd., 148 App. Div. 900; affd., 210 N. Y. 637; Dougherty v. Salt, 227 id. 200, 202.) Lazansky, P. J., Rich, Hagarty, Carswell and Seudder, JJ., concur.