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Millan was talking to her about moving over to the Piffard homestead, and she said "that she had agreed to leave enough property to maintain the Piffard home. She told me about Mrs. Piffard going over to buy the home and how she agreed to leave property enough to maintain that home just the same after her death as she promised to now."

Upon the trial of the replevin suit four years earlier she had not testified to any such conversation.

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Elizabeth Schneider, cook, testified that Mrs. McMillan in conversations in reference to her relations with Mrs. Piffard "told me she was very dear to her, just as her own child, in place of her own child who had died. I don't think she mentioned the furniture in particular. She told me everything would be Mrs. Piffard's. She used the word 'everything.' We were talking about a very beautiful picture that was in Mrs. McMillan's room. * * * She said it would be Mrs. Piffard's when she was gone and that everything would be." This testimony does not seem at all to corroborate the contract alleged.

Hannah Roberts, a nurse, was at Piffards five or six weeks in 1901. She was asked, "What did [Mrs. McMillan] say about the furniture? A. She said she had taken

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it there to furnish the house while she was living, and when she got through with it Mrs. Piffard had it. Q.

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What did she say to you in reference to an agreement she had made with Mrs. Piffard as to other property? A. She didn't say anything, only what was there would be Mrs. Piffard's. Q. Did you have any conversation about other property A. No, sir."

This is the utmost of the corroboration of Mr. Piffard's story. There is not a scrap of paper containing any support of the alleged contract, although a number of letters of Mrs. McMillan are in evidence. The judgment, therefore, depends upon the evidence of Mr. Piffard.

It is urged that his testimony is incompetent under section 829 of the Code of Civil Procedure, as "a person interested in the event." I am not willing to say that he comes within the condemnation of the statute as a party legally interested in the event, but I do think that he was an interested witness and that as such his testimony cannot be regarded as of a quality sufficient to support the judgment under the rule laid down in similar cases.

In Hamlin v. Stevens (177 N. Y. 39) the claimant's mother testified to the alleged contract. Judge VANN said: "Assuming that the trial judge believed that the appellant and his mother intended to tell the truth, still, owing to their deep interest, it would be unsafe to base a finding on their testimony when it may be followed by such grave consequences. Such contracts are dangerous. They threaten the security of estates and throw doubt upon the power of a man to do what he wills with his own. The savings of a lifetime may be taken away from his heirs by the testimony of witnesses who speak under the strongest bias and the greatest temptation, with all the dangers which, as experience shows, surround such evidence. The truth may be in them, but it is against sound policy to accept their statements as true, under the circumstances and with the results pointed out. Such contracts should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses.

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We wish to be emphatic upon the subject, for we are impressed with the danger, and aim to protect the community from the spoliation of dead men's estates by proof of such contracts through parol evidence given by interested witnesses."

In Holt v. Tuite (188 N. Y. 17), where the rule in Hamlin v. Stevens was applied, the witnesses whose testimony was disregarded as being interested were in no way legally interested in the estate or the property nor related by kinship to the par

ties. They were merely involved in certain disputes calculated to excite their ill will against the heirs or representatives of the estate.

In Hungerford v. Snow (129 App. Div. 816) the husband testified to the oral agreement. While the court held that his testimony was competent, it held that the defendant had failed to establish the oral agreement by such clear and convincing evidence as is required under the rule applicable to cases of this kind. In Scheu v. Blum (119 App. Div. 827) the court said: "The existence of the alleged contract of employment depends upon the testimony of her husband. There is no substantial corroboration. Contracts of this kind are looked upon with suspicion and whenever sought to be enforced are closely scrutinized and never sustained unless the evidence is very satisfactory. [Citing cases.] The plaintiff's husband can hardly be said to have been a disinterested witness."

In Dueser v. Meyer (129 App. Div. 598) the testimony was given by the plaintiff's wife and the judgment was reversed upon the ground that such claims have to be proved by clear and convincing evidence of disinterested witnesses before they can be allowed.

In Butcher v. Geissenhaimer (125 App. Div. 272), where the claimant and the witness were sisters, the court said: "It may be granted that there was some evidence tending to establish the contract, and in an ordinary case enough to go to a jury. But the Court of Appeals has established the rule that in this class of cases the testimony must be not only clear and convincing, but of the clearest and most convincing character, and given or corroborated in all substantial particulars by disinterested witnesses, and it must follow that in order to take such a case to a jury more is required than will ordinarily suffice." And the judgment was reversed.

In White v. Devendorf (127 App. Div. 791) the rule was applied to the testimony of relatives.

It is not necessary to reject Mr. Piffard's testimony entirely. Undoubtedly the relations of aunt and niece had been very close for a number of years. They had traveled and lived together almost continuously from 1885, when her mother died. They had lived together in Genesco, where Mrs. Piffard had contributed to the maintenance of the home, and it is clearly established when the Piffard homestead was bought and they moved there that Mrs. McMillan contributed to the maintenance of that home. As Mrs. McMillan grew older and feebler, suffering as she did from shaking palsy and requiring considerable attention, there is no doubt that Mrs. Piffard was affectionate, considerate and helpful to her. There is no claim for personal services rendered to Mrs. McMillan, so that there is not here presented the question of a contract for personal services or an action in quantum meruit. The contract alleged is for contribution to the maintenance of the home. I think that there was an agreement founded upon sufficient consideration whereby Mrs. McMillan agreed to make her home with her niece for the rest of her life and to pay her $100 a month for eight months in the year, and $100 a month for so much of the other four months as she should actually be in the home, and to provide for the horses and carriages and their keep, etc.

After her departure from the Piffard home in October, 1902, she continued to pay for the keep of the horses until she disposed of them in March, 1903, and she continued to make the contribution of $100 a month until May, 1903.

The court found that Mrs. McMillan neglected and failed to comply with the terms of her contract by omitting and neglecting to pay the sum agreed upon for the maintenance of said joint home and by neglecting and omitting to furnish and maincain for the use of said household the team, coachman, carriage and equipment for the year beginning June 1, 1903, and ending June 1, 1904, and by reason of said failure and neglect became indebted to Mrs. Piffard in the sum of $1,600, less the

sum of $156, the value of the board of which Mrs. Piffard was relieved during said year, leaving a total of $1,444, and has made the same finding for each of the four years down to June 1, 1907, which would make a total of $5,776. We think that justice would be done by accepting so much of the testimony as would establish the contract so far as it related to the mutual obligation of the parties during the life of Mrs. McMillan. We do not feel justified in finding any valid contract affecting the disposition of Mrs. McMillan's property after her death. It may be conceded that Mrs. McMillan had at various times, and perhaps for a long time, an intention to leave part of her estate to this niece, yet the circumstances of her going to the Piffard house and the contribution to the maintenance thereof were in entire accord with their previous conduct, and can be entirely explained without referring to the disposition by will of one-half of her property. Within the rule, we find no evidence of the character required sustaining the finding of the court that Mrs. McMillan contracted at her death to leave any of her property to Mrs. Piffard.

Therefore, the tenth, twelfth, sixteenth, thirty-fourth and fortieth findings of fact should be modified, thirty-second and forty-eighth reversed, and the fourth conclusion of law modified.

The decree appealed from should be modified by providing that the amount justly due to the petitioner is $5,776, with interest on $1,444 from the 1st day of June, 1904; interest on $1,444 from the 1st day of June, 1905; interest on $1,444 from the 1st day of June, 1906, and interest on $1,444 from the 1st day of June, 1907, and as modified affirmed, without.

costs.

MCLAUGHLIN, SCOTT and HOTCHKISS, JJ., concurred; INGRAHAM, P. J., dissented.