Opinion
September Term, 1896.
Charles E. Patterson, for the appellant.
Edwin Countryman, for the respondent.
The wife made the loan to her husband, and she took from him this instrument in which he promised, if she survived him, not only that she should be paid in full, but should be entitled "to all my one-half interest" in certain real estate. The instrument further provided, "But if the said Martha A. Cronin shall not survive me, then this agreement shall be of no effect." That is to say, that she should not in such case be entitled to both payment and the land. The instrument is evidence of the loan, and, therefore, of his indebtedness to her. She did not sign the instrument; she did not agree that in case he survived her, the loan should be forgiven and the right to payment renounced. If that was her intention it would have been easy to express it in the writing. We cannot imply any such agreement upon her part. Its omission from the writing may have been because its insertion was not requested, or, if requested, was refused. The writing is the husband's, binding him to payment and something more, if she survived, but binding neither if he survived. It contains no waiver by the wife of her right to payment. By her prior decease the written agreement is made of "no effect," and the parties are remitted to such obligations and duties as the loan and its non-payment imply.
We do not think the agreement usurious. There is no certain agreement to pay excessive interest. ( Home Ins. Co. v. Dunham, 33 Hun, 415.)
The judgment should be reversed and a new trial ordered, costs to abide the event.
MERWIN and HERRICK, JJ., concurred; PARKER, P.J., and PUTNAM, J., dissented.
Judgment reversed and a new trial granted, costs to abide the event.