Hillyer

This is an appeal by the plaintiffs from a judgment in favor of the defendant and from an order denying their motion for a new trial.

The complaint alleges that on the twenty-seventh day of September, 1909, Anna Flanigan Romoser was the owner of the real property here in controversy; that shortly before that date, being severely ill and not expecting to live, she entered into an arrangement with her husband, Henry Romoser, whereby she was to execute and deliver to him a deed of gift of said real property, and he in turn was to execute a like deed conveying the property to Catherine Meyers, a niece of Mrs. Romoser’s former husband, and place the same in escrow, to be delivered upon his death; that accordingly Mrs. Romoser executed- her deed to Henry Romoser, and that he continued to own the property to the time of his death; that while he made and signed the promised deed of gift to said niece he never actually delivered it to her nor in escrow for her, without, however, ever repudiating his agreement so to do. This failure of Eomoser to keep his agreement is charged in the complaint as fraudulent ; and it then proceeds to allege that he died intestate on January 24, 1914, and…