In re the Final Accounting of Topkis

Order, entered on December 3, 1964, granting respondent’s motion to dismiss the first and second affirmative defenses contained in petitioner’s reply to the amended objections, unanimously affirmed, without costs and without disbursements. The Statute of Frauds could properly be asserted as a defense if the cause of action lay in contract and if the relief sought were to enforce “ a contract to bequeath property or make a testamentary provision.” (General Obligations Law, § 5-701, subd. 7; formerly Personal Property Law, § 31, subd. 7.) However, we view the proceeding as one not to enforce a contract but rather as one to impress a trust upon the moneys received by the testator from her deceased husband’s estate. If the objeetants prove sufficient to move the court to establish a constructive trust, then the Statute of Frauds would not be a defense (Oursler v. Armstrong, 10 N Y 2d 385). If, however, they fail to establish the propriety of declaring a constructive trust, then they will have failed completely to have sustained their objections. They may not, in the circumstances, sustain their objections by proving a breach of contract. Concur — Botein, P. J., Rabin, McNally and Stevens, JJ.