author: O’Brien, J.

text:
    John Hope, by Guardian, App’lt, v. William A. Brewer et al., Individually and as Executors, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Will—Trusts.
    Testator, by his will, gave the residue of his estate to his executors in trust to found an infirmary. By a codicil he revoked this power and directed them to realize the residue as soon as_ they conveniently could do so, and pay the proceeds to certain persons in Scotland in trust to found and maintain a charitable institution there. Held, that no trust was ere- * ated in the executors requiring the vesting of a legal estate in them, and lienee there was not a double trust.
    8. Same—Perpetuities.
    The provision in question is not invalid as unlawfully suspending the power of alienation of real estate and the absolute ownership of personal property, as the executors are required to sell as soon as convenient, and pay the Scotch trustees as soon as realized.
    8. Same.
    A bequest in trust, valid under the law of the trustee’s domicil, will be supported by our courts, although the same would be invalid under our statute against perpetuities if intended to be enforced in this state.
    Appeal from judgment at special term sustaining the validity of the trust of the residuary estate created by the last will and testament of Thomas Hope, deceased.

      Delos McCurdy, for app’lt; Robert Hunter McGrath, Jr., and Daniel G. Rollins, for Malcolm and others; James Thomson, for ex’rs, resp’ts.

       Affirming 40 St. Rep., 206.

   O’Brien, J.

The testator, who was born at Langholm, died in Connecticut in March, 1890, unmarried, without issue, leaving neither father nor mother surviving. His only next of kin and heirs at law are, a sister, Jane Hope, two nieces, and a nephew, John Hope, the plaintiff; the last three being children of a deceased brother. His property, comprising both realty and personalty, he disposed of by giving to Ms sister $30,000, to Ms nephew and nieces $10,000 each, to numerous charitable societies absolute bequests aggregating $50,000; and the entire residue of his estate was given to Malcolm, Maxwell & Smellie, of Scotland, to be used by them in founding and endowing at Langholm ’ an institution for the benefit of the town, to be called “ The Thomas Hope Hospital for the Poor.”

The question turns upon the validity of the trust created by the twenty-sixth clause of the will and the second codicil thereto. By the twenty-sixth article the testator. bequeathed all the rest, residue and remainder of his estate to his executors Brewer and Crowell, in trust, to found and endow an infirmary ; but whether the provisions of this article are valid or not we are not called upon to determine, for the reason that they are abrogated by the second codicil, which practically revokes the twenty-sixth article of the will and changes so much thereof as relates to the founding of an institution by taking from the executors and trustees Brewer and ■Crowell the power conferred upon them and substituting the following: “ Instead of said institution being founded and endowed by my said trustees, * * * I direct them as soon after my decease as they can conveniently do so to realize all the rest, residue and remainder of my said property and estate so bequeathed to-them, and to pay, assign and make over the whole proceeds thereof when and as soon as realized to 'and in favor of ‘ Malcolm, Maxwell & Smellie,’ as trustees and in trust, to the end that they may apply the same in founding, endowing and maintaining an institution for the care and relief of sick or infirm persons, to be established and located at Langholm.”

It will thus be seen that the testator, by this second codicil,, gives his entire residuary estate, after directing that it shall be converted into money, to three trustees resident in Scotland, in, trust in perpetuity for the benefit of a charity to be administered in that country.

The appellant insists that all these testamentary papers taken-together made dispositions of real and personal estate which are wholly void and invalid because the subject and object of such dispositions are each indefinite and uncertain, and because the power of alienation of real estate and the absolute ownership of personal estate are suspended by their force.

Considering' the language of the will and codicils, we do not understand that any contention arises as to the intent of the testator to convert the entire estate into personalty and to distribute the same to the various legatees to whom portions of the estate were bequeathed. It is insisted, however, that the testator in effect created two trust estates, one in favor of the resident executors and trustees, and through them another in favor of the Scotch trustees ; and appellant therefore contends that, as the gift of the residuary estate through the first trust to the Scotch trustees in trust is invalid, the equitable conversion of the real estate into personalty does not take effect. The error into which we think the appellant has fallen is in assuming that a trust in favor of the executors was created which required the vesting of a legal estate in them.

The testator intended just what in all cases is necessary, that the estate should be administered upon for the puipose of paying debts and legacies. Here the executors were charged with that-duty, to the end that after reducing the estate to personal property the proceeds might be distributed to the various legatees ; among whom were the Scotch trustees to whom the residuary estate was-given.

It is true that the validity of the gift of the residuary estate in trust to Brewer and Crowell, executors and trustees, must be determined by the laws of this state; and this, whether the trust relates to real estate, personal property, or both; and that a gift in contravention of the law of the testator’s domicil would be void everywhere. Chamberlain v. Chamberlain, 43 N. Y., 433.

In respect to the bequest to the Scotch trustees, who are not shown to be subject to any disability here or at the place of their domicil, they are competent to take the estate. Our laws do not prohibit the bequest or the taking; and the evidence shows that under the law of Scotland the bequest made was a legal and valid bequest to the Scotch trustees for a charitable use. Whether such a trust could be created and enforced in this state is not the question ; for, in view of the unvarying line of decisions made by our courts, “ it is no part of the policy of the state of New York to interdict perpetuities of gifts in mortmain ” in other states or countries. Manice v. Manice, 43 N. Y., 303; Chamberlain v. Chamberlain, id., 424. As said by Allen, J., in Chamberlain v. Chamberlain, in respect to a bequest which should have been invalid if made to a New York corporation: “Bequests in aid of foreign charities, valid and legal in the place of their existence, will be supported by the courts of the state in which the bequests are made.”

This leaves but a single other question, which is the one that was mainly urged upon this appeal, as to whether or not the management and control of the estate conferred upon the executors Brewer and Crowell created a trust which was invalid, as unlawfully suspending the power of alienation of the real property and the absolute ownership of the personal property, so as to prevent the application of the principle of equitable conversion.

It has been frequently held that trustees only take such an estate in quantity and duration as is" requisite to supply the lawful purposes of the trust. And in determining whether or not the power of alienation has been illegally suspended, it remains to determine what duties or trusts were created which it was necessary for the executors or trustees, Brewer and Crowell, to possess or have in order to discharge the duties imposed upon them. That they took no estate in the lands, and that they were required to immediately convert the real estate into personalty, are plainly manifest from the language of the testator. The words used are positive and mandatory. The will makes it incumbent upon the executors to sell all the testator’s real estate, and does not in any respect leave it to their judgment or discretion; nor is there any duty imposed upon them which requires them to hold the estate beyond such a period as is required for a reduction into money and.a distribution to the legatees designated in the will.

We do not, therefore, think that the contention of the appellant can be maintained, that no time is limited within which the executors of the will are to pay over the fund to Malcolm, Maxwell & Smellie, or that the same is void because the fund is not limited upon a life or lives in being. As stated by the learned justice below, “ There is nothing in the will that postpones the period of payment of the legacy to the Scotch trustees. On the contrary, they are directed to pay it as soon as realized, and it stands in this respect in the same position as every other legacy in the will, and the law requires it to be paid in the ordinary course of administration.”

All the other questions upon appeal were disposed of by the court below, and we might well have rested the affirmance upon the careful opinion rendered by the learned judge, which clearly and fully disposed of all the questions now presented. Upon an examination, we see no reason for disturbing the conclusion reached by him, and we are, therefore, of opinion that the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


source: Caselaw Access Project

author: Barrett, J. Van Brunt, P. J.

license: Public Domain

text:
    Charles F. Gall, App’lt, v. Amelia Gall et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    Specific performance—Agreement to devise residue of estate.
    In an action for specific performance of an agreement by plain tiff’s uncle to make him his heir the proof rested on declarations of the uncle, some of which were that he had made a will in his favor in consideration of his giving up his business and coming to live with him; to others he stated that it was done because plaintiff had changed his name to his own to perpetuate it and the business, and again that he had made an agreement with plaintiff that if he would remain with him he would give him everything he possessed for changing his name, and would leave him the business and everything he possessed excepting some few legacies. The affidavits in the application for change of name stated'that the uncle intended to make plaintiff a legatee. Thereafter the uncle married and had issue. Meld, that under this proof the agreement was uncertain as to consideration and the amount of property to be ultimately realized, and was unilateral, and that specific performance would not be decreed.
    Appeal by plaintiff from a judgment in favor of the defendant dismissing the complaint without costs.

      Abram Kling, for app’lt: A. Simis, Jr., for resp’t; B. F. Blair, for infant defts.
   Barrett, J.

It is undoubtedly the settled law of this state that “ where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity, in a case free from all objections on account of the adequacy of the consideration or other circumstances rendering the claim inequitable, will compel a specific performance.” Shakespeare v. Markham, 10 Hun, 322; affirmed, 72 N. Y., 406; Parsell v. Stryker, 41 N. Y., 480. Such a contract, however, especially when it is attempted to be established by paroi, is regarded with suspicion, and not sustained except upon the strongest evidence that it was founded upon a valuable consideration and deliberately entered into by the decedent. Waterman on Specific Performance, § 41.

The cases in which performance of such contracts have been enforced in this state were principally cases where specific property was agreed to be devised or bequeathed upon an adequate consideration.

Such was the case of Parsell v. Stryker, (above cited) where, indeed, the contract sought to be enforced was in writing and entirely specific.

The lands which were the subject of the agreement under consideration in Mutual Life Insurance Co. v. Holloday, 13 Abb. N. C., 16, consisted of a definite tract called “Ophir Farm.” This' was also the case in Sherman v. Scott, opinion of Rumsey, J., 13 Abb. N. C., 20, note; affirmed, 27 Hun, 331. In Matthews v. Matthews, 62 Hun, 111; 41 St. Rep., 851, the agreement was a certain specific part of the decedent’s premises and chattels.

We have, however, found no case in this state where an agreement to leave the whole of one’s estate, real and personal, to a particular person has been enforced. On the contrary, there are cases where specific performance of such a contract has been refused. It was refused in Lisk v. Sherman, referred to in the same case, 25 Barb., 433, when, after the dismissal of the bill, an action was brought for money compensation. The refusal was based upon the uncertainty which necessarily existed with regard to the subject matter. This was recognized in Shakespeare v. Markham, supra, where Talcott, J., oberved that:

There was no restraint by the supposed contract upon the testator’s power to dispose of the same, or any part thereof during his life, and the amount which he should have at his death was therefore wholly uncertain. The contract, therefore, by reason of its uncertainty, was one which a court of equity would not be under the necessity of compelling performance of.”

The case of Lisk v. Sherman was approved of in the case last cited, both at general term and in the court of appeals. Talcott, J., at general term said it was quite similar to the case then under consideration, as the agreement “ was that the plaintiff was to live with and take care of the testatrix as long as the latter lived, and at her death was to have all the property which the testatrix should leave.”

It is vitally important that the statute of wills should be maintained in its integrity; and the courts should not, by lessening or weakening the well-defined pre-requisites to specific performance, furnish a loop-hole for the evasion of its provisions. So important are these provisions with respect to testamentary disposition, that it has been doubted whether in any case, especially when the contract is sought to be established by paroi testimony, so patent a means for their evasion as bills for specific performance should have been allowed. Shakespeare v. Markham, supra. It is certain, however, that in this class of cases the ordinary rules which govern in actions to compel the specific performance of contracts, and which furnish reasonable safe-guards against fraud, should be rigidly applied. These rules require that the contract be certain and definite in all its parts; that it be mutual and founded upon an adequate consideration; and that it be established by the clearest and most convincing evidence. Even then, when the contract limits a man’s right to dispose of his property by will, it is regarded with suspicion and enforced only when it is apparent that the hand of equity is required to prevent a fraud upon the promisee. There is another rule which should be strictly adhered to in this class of cases, and that is that the remedy is a matter of judicial discretion and that relief should be withheld where a decree for specific performance would work injustice to innocent third persons or where it would be contrary to public policy. Armstrong v. Armstrong, 1 St. Rep., 531, and cases there cited.

Applying these principles to the case under consideration, we think the judgment of the special term, dismissing the complaint, was correct. In the first place, the contract was not established with reasonable certainty. It was not made with parents for the benefit of an infant, but directly with an adult. The proof rests entirely upon the declarations of the decedent. Some of these declarations were, it is true, made in the presence of the plaintiff, but they were not in the nature of a present bargain.

Many of these declarations were merely as to the decedent’s intention, while others were as to what had been done. He told some witnesses that he had made a will in the plaintiff’s favor, and that this was done in consideration of the plaintiff coming to the decedent’s home and living with him, and giving up his business and home in San Francisco. To another witness, he gave as a reason for making his will in plaintiff’s favor that he wanted to perpetuate his name and also his business. To still another, he said he had made his will and had made Charlie (the plaintiff) his heir, as Charlie had given up his business interests in San Francisco and had taken his name to perpetuate his name and business. When the plaintiff, at decedent's request, had his name changed to Grail by a judicial order, the decedent told the attorney who attended to the matter that “ Charlie was to be his heir and assume his place in the business at his death.” To his niece, Rebecca Funkenstein, he said that he had made an “agreement with Charlie, that if Charlie would leave his home and remain with him he would give him everything he possessed for changing his name, he would leave him his business, his property and everything he possessed, excepting some few legacies that he left to her sister and brother and the three cousins in Mew Zealand.” The plaint-ff’s mother testified to the same effect.

It is quite uncertain from this testimony what precise agreement, if any, was ever made between the plaintiff and the decedent. If there was any actual agreement between them it is impossible to say whether the consideration therefor was the change of name or the care which was to be given to the decedent, or the sacrifice of the California business. Then,too, if an actual agreement on the decedent’s part is to be inferred from these declarations, such agreement was uncertain. There was a reservation of the right to make some legacies; and the complaint charges an undertaking “ to leave the remainder of his estate, both real and personal,” to the plaintiff. Mo specific property, it will be observed, but whatever he might happen to have at the time of his death, without even a general statement as to its extent, character or value. How is it possible, under well settled rules, to enforce such an agreement were it conclusively established ? And even if the consideration were clear, how can its adequacy be determined when the property to be ultimately realized therefor was necessarily unknown at the time the agreement was made ?

Further than this, there was no binding mutuality. The plaintiff could have left the decedent at any time without violating any engagement on his part. The observations.made in the House of Lords of England, in Maddison v. Alderson, L. R., 8 App. Cas., 467, are pertinent on this branch of the case. There the decedent induced a woman to serve him as housekeeper, without wages, for many years, and to give up other prospects of establishment in life, by a promise to make a will leaving her a life estate in land. He, in fact, signed the will, but unfortunately for the woman it was not duly attested. It was held that there was no valid or enforceable contract. One of the law lords said that:

“ The case thus presented was manifestly one of conduct on the part of the appellant (affecting her arrangements in life and pecuniary interests) induced by promises of her master to leave her a life estate in the Moulton Manor Farm by will rather than one of definite contract for mutual considerations made between herself and him at any particular time. There was certainly no contract on her part which she would have broken by voluntarily leaving his service at any time during his life, and I see no evidence of any agreement by her to serve without, or to release her claim for wages. If there was a contract on his part it was conditional upon and in consideration of a series of acts to be done by her, which she was at liberty to do or not to do, as she thought fit; and which, if done, would extend over the whole remainder of his life.”

The present case is weaker for the appellant than that just cited, for here the plaintiff received a salary for his services in the decedent’s business, and lived with the decedent. Further doubt is thrown upon the existence and precise nature of the alleged agreement by the affidavits upon which the application was made in April, 1883, to change the plaintiff’s name. The plaintiff there states:

“ That your petitioner’s reasons for assuming such name are that your petitioner is a nephew of Joseph Gall of the city of Hew York; that said Gall is advanced in life, and has no wife or children, and is desirous that his name be continued, and that your petitioner should take and bear his name, and that it is the name of Gall; and that said Gall has expressed his intention to make your petitioner a legatee under his, said Gall's, will, if your petitioner shall take and bear his name.”

The decedent, in his affidavit upon the same application, states:

“ That he has no wife or children, and is desirous that his said nephew should assume and bear his name, and that on the condition of his so doing it is his intention to make the said Charles Funlcenstein a legatee under his will.”

Here we have an expression of intention, but not a word in either affidavit as to any agreement, much less a,n agreement to make the plaintiff his residuary legatee.

Further, in the plaintiff’s affidavit of October 28, 1886, presented to the surrogate, he makes this statement:

“ About Uovember 10th, 1882,1 took charge of my uncle’s interest in the Union Square business. I did so at the special instance and request of my uncle and aunt, who insisted that I should remain with them and give up my position in San Francisco, and that if my conduct would merit it, they would adopt me as their son, having no children, and thus perpetuate the name of Gall, of which name and his business the old was

This statement was entirely inconsistent with the unconditional agreement set forth in the present complaint, and it throws additional doubt upon the existence of any such agreement.

These considerations would have sufficed to sustain the dismissal of the complaint, but they are reinforced by the fact of the decedent’s second marriage and the existence of lawful issue. The parties, whatever their original understanding, could never have contemplated a restriction upon the decedent’s right to marry or to provide for his children in case such marriage was fruitful. Nor could they have contemplated the taking by the plaintiff of the decedent’s entire estate to the exclusion of any such future wife or child. If such an agreement had been made, it certainly would have been against public policy and void. Whatever agreement was made was necessarily subject to such possibilities, and was limited by implication accordingly.

It will not, therefore, be necessary to consider the question with regard to the statute of frauds, as, for the reasons already given, the judgment should be affirmed, with costs.

O’Brien, J., concurs.

Van Brunt, P. J.

I concur in the result. I do not think that the courts will enforce a contract whereby a party deprives himself of all power to bequeath or devise by will the property of which he is the owner at death except in cases of adoption, where the contract is made for the benefit of an infant and not to the exclusion of children. It will certainly not do so in a case where the agreement is unilateral, and where it may be terminated by the other party at will.


author: O'Brien, J.

text:
    Robert A. Davis, Resp’t, v. Catherine B. Seaman et al., Adm’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Evidence—Books of account—Proof of correctness.
    In an action or proceeding against the legal representatives of a deceased person, testimony of the plaintiff is incompetent to prove the correctness of his books of account.

      % Decedents’ estates—Physician’s bill—Proof of.
    In support of a claim for services as a physician of the deceased, the only evidence was the books of account of the claimant, the correctness of . which was testified to by himself alone; testimony of two witnesses that they had settled his bills but did not see or examine his books, and a witness who testified that for a portion of the time claimed the decease^ and claimant resided in the same house and were frequently together, but that he could not say whether their relations were professional or social; that claimant was with deceased about three or four days before she died and prescribed for her. Held, that the books of account were improperly admitted, and that the evidence was insufficient to support the claim.
    Appeal by defendants from order confirming report of referee, to whom was referred under the statute a disputed claim.

      George W. Hopkins, for resp’t; A. M. & G. Card and W. E. Steiger, for app’lts.
   O'Brien, J.

The plaintiff’s claim was for professional services alleged to have been rendered defendants’ intestate between June 22, 1888, and January 22, 1889, amounting to $500. The referee to whom the claim was referred found in favor of the plaintiff iti. the sum of $440 ; and from the judgment entered upon the referee’s report this appeal is taken.

The question presented is, whether the conclusion reached by the referee was founded upon any sufficient and competent evidence. The burden was upon the plaintiff of showing employment, professional services, and the extent and value thereof. To establish these the only evidence offered by plaintiff was his books of account and the testimony of one A. S. Diller. What is necessary to be established ordinarily before books are admissible in evidence has been clearly stated in Vosburgh v. Thayer, 12 Johns., 461, .which has been frequently referred to and followed. Where, as here, however, it is proposed to introduce a book of account as against the representatives of a deceased party, the additional fact must be kept in mind that § 829 of the Code prohibits the claimant from testifying “ concerning a personal transaction or communication between the witness and the deceased person.” As said in Knight v. Cunnington, 6 Hun, 105; “Where a plaintiff desires to establish his case against a-deceased debtor by resort to his books * * he must establish his employment, if his claim is for services rendered, by competent evidence; and then by proof that he keeps correct books of account and that his debtors have settled with him finding them to be correct, he may be enabled to put them in evidence. * * * It may be said also that the plaintiff’s right to prove the correctness of his books himself, or to make any statement with regard to them, against a deceased person, is extremely doubtful. * * The book certainly relates to a communication or transaction with the deceased and is, as already suggested, the very foundation on which his claim rests.”

In the case of Knight v. Cunnington, the court said that it was unnecessary to examine the question as to whether the plaintiff could prove the correctness of the books himself, because the testimony was not objected to, nor was the question presented upon proper exceptions. Here, however, the objection and exception were properly taken, and the testimony of plaintiff in proof of the correctness of his books was received over the defendant’s objection.

Exclusive of plaintiff’s testimony, two witnesses were examined, patients of the plaintiff, who testified to having made payments for professional services rendered by the doctor to their families. The first witness, one Hackett, testified that the doctor presented him a bill which conformed to the amount which he had agreed to pay for certain services to be rendered, and that he had paid the bill when presented. He testified: “I never saw any books of account belonging to the doctor; never examined any books, and any payments I made I did not make because he presented the bill; I made an agreement with him for the confinement; I paid him every time he came after that one dollar for every visit.” It is true this witness testified that he saw books of account, and that when he went for medicine he saw the doctor write it down in the book; but he stated that he never examined the book.

It is difficult to reconcile the witness’ testimony; nor is it necessary, because it did not tend to establish the facts necessary, upon the authority of Vosburgh v. Thayer, supra, to make the books of the plaintiff admissible.

The other witness, Nicholson, testified that he never saw any books, and that any settlements made were without reference to the plaintiff’s book of account.

We are thus left in this case with the plaintiff’s evidence alone to support the books of account, which if eliminated from the case would leave it barren of any evidence in favor of plaintiff's claim against the deceased.

The respondent, in support of the view that the testimony of plaintiff as to the correctness of the accounts is competent against the representatives of a deceased person, cites McGoldrich v. Wilson, 18 Hun, 443. It will be seen, however, by an examination of that case, that the testimony of McGroldrick was not objected to, and that several witnesses were examined who were employed by McGroldrick in the business and who testified in regard to the manner in which the accounts were kept, which was in effect that memoranda were made on a slate and then transferred to an account book, and it was held that such an account book was admissible in evidence because there was nothing in the case which would create a suspicion “ in regard to the honesty or accuracy with which the accounts were kept.” Here, however, as already stated, the objection was taken to the admissibility of the books of account, and their correctness was not supported by other witnesses. We think, therefore, in view of the character and kind of testimony adduced to support the correctness of the book of account offered, that the referee erred in receiving it.

We have already said that, exclusive of this book, there was no other evidence in the case to support the claim. It is true that one Diller was examined, who testified that he and the doctor both lived in the house with Mrs. Wetherbee during the spring and summer of 1888, during which time she had been more or less sick ; that she went to bed on the 22d of September and died on the 22d of January. This witness does state that Dr. Davis was there from about the 19th of January until the time she died, and that she had a number of prescriptions filled that the doctor had ordered. He also testified that up to the last year of her life Mrs. Wetherbee was a remarkably healthy woman; that she used to call upon the doctor, but whether such calls were social or professional he could not tell, but that he saw them together, he could not recollect the number of times.

Taking into consideration the fact that the doctor lived in the same house with the deceased, that they were frequently together, and that even this witness is unable to détermine whether the calls made by the deceased upon the doctor, or by the doctor upon the deceased, were professional or social, this testimony is stripped of any weight or force, except so far as it relates to the visits which he testified he knew the doctor made professionally between the 19th of January and the date of her death on January 22, 1889. We think, too, having in view the fact that this witness and the doctor were living in the same house with the deceased, and the questions that arose in respect to their exact relations, that in favor of the representatives of the deceased some greater latitude should have been allowed the latter upon cross-examination by the referee.

We are of opinion, therefore, that not only was it error to have received the book of account, but that an examination of the entire record presents no such satisfactory proof as could justify a finding by a referee or by this court that the burden wliich was placed upon the plaintiff of establishing his claim had been made out by satisfactory competent evidence.

We think, therefore, that the judgment appealed from should be reversed, and the claim referred to another referee, with costs to appellants to abide the event.

Van Brunt, P. J., and Barrett, J., concur.


text:
    Frances E. Godine, Resp't, v. Henrietta Kidd et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Contract—Adoption.
    A contract made in 1844 between the parents of a child and its adopters, in consideration on the one hand of an agreement to take the child and bring her up as their own and give her the property they might have at their death, and on the other the surrender of the child by its parents, where the child grows up and serves and cares for her adopters until their death should be enforced.
    3. Same—Statute of frauds..
    Such an agreement, though not made with reference to real estate, is not within the statute of frauds because not in writing, as it is taken out of the statute by the performance of one of the parties.
    3. Same—Evidence—Code Civ. Pro., § 839.
    The mother of the child is not incompetent to testify to such agreement under § 839 of the Code, as the child does not derive-her title or interest to the property by assignment or otherwise from the mother, but from her adopters under the terms of the contract.
    Appeal from decision directing a verdict in favor of plaintiff, ordered to be heard in the first instance at general term.

      Warren Higley, for app’lts; Elliot Williams, for resp’t.
   O’Brien, J.

The plaintiff, claiming to be the owner of a one-fourth interest in the premises in West Washington Place, brings this action to eject the defendant, who is in possession of the premises. The complaint alleges that one Elizabeth Knapp died in June, 1890, being at that time seized in fee of the property; that her title thereto was derived through one William Parscyl, who died seized and possessed of the lot of land on the 11th day of May, 1849, leaving a last will whereby he devised the same to Edwin Knapp and the said Elizabeth Knapp, his wife, and the survivor of them. Edwin Knapp died July 4, 1887, leaving Elizabeth Knapp, his wife, surviving, who thereupon became seized in fee in her own right of the premises in question, and continued in possession thereof until the time of her death. That she having died intestate, the plaintiff, who was a niece of said Elizabeth Knapp and one of her heirs, became entitled to one undivided fourth part of such real estate. In answer to the claim thus made, the defendant alleged as a defense that in April, 1844, her mother, with the consent and approval of her father, gave and surrendered her, then an infant of the age of one and a half years, to the said Elizabeth and Edwin Knapp, for and. in consideration that they then and there promised and agreed to adopt and bring her up as their daughter, give her their náme, make her their heir, and that the property they might have at their decease should go to her in case she should survive them; that in pursuance of such agreement she was immediately taken by the Knapps and lived with them, and so continued until the time of their death, and was at all times treated by them as their daughter, bearing their name and being by them given in marriage under the name of Henrietta Knapp to Bichard B. Kidd.

Upon the close of the evidence the court directed a verdict for the plaintiff (ordering the exceptions to be beard in the first instance at the general term), upon the ground that the equitable defense set up was not sufficient to exclude the heirs ‘ at law. It was thus assumed by the learned trial judge, just as the evidence warranted, that an agreement substantially as set forth in the defense was established. It was made to appear that Mr. and Mrs. Knapp, who were childless, made application to the mother of the defendant, when the latter was but eighteen months old, for permission to take and bring the child up, agreeing to treat her as their own daughter and in all respects to make provision for her as their own child, including a disposition of their property in her favor at their death. The agreement, so far as any obligation was imposed on a child towards parents, was fulfilled by the defendant; and so far as concerns that part of the agreement by which the Knapps were to leave her their property, this was partially performed by the will made in favor of the defendant by Mr. Knapp, who at the time claimed and supposed himself to be, as did Mrs. Knapp, the owner, not only of the personal property which by the terms of his will went to the defendant, but also of the real estate, in which, however, together with his wife, he only took an estate by the entirety; which left the property in such position that it did not pass, as he intended it should under the terms of his will, to the defendant, but passed to his wife by reason of her surviving him.

Were it not for this misapprehension on the part of the Knappsas to the person wdio had the right to devise the property, no question would now be presented, because the evidence abundantly shows that the husband assumed that he had carried out the agreement by leaving all his property to the defendant and to his wife who survived him ; under the like impression that the property had been so devised that after her life estate it would go to the defendant, Mrs. Knapp died leaving no will. It thus happens that by reason of intestacy the property will descend to her heirs at law, unless the agreement which was set up by the defendant is sufficient to justify her retention thereof.

In effect, the defense seeks to obtain a specific performance of the agreement made by the Knapps with the parents of the defendant at the time of her adoption; and there being no real dispute upon the facts, the question is, whether a contract made in this state in 1844, between the parents of a child and its adopters in consideration on the one hand of an agreement to take the child and bring her up as their own and give her the property they might have on their death, and on the other the surrender of the child by its parents, and the child growing up and serving and caring for her new parents until their death, can be enforced.

The adverse view upon this question taken by the learned trial judge was undoubtedly due to the importance attached by him to the laws passed in this state with reference to the adoption of children. He correctly says that the law of this state until the year 1873 never recognized such a thing as the adoption of children. In 1873 an act was passed by which, in a certain sense, the relation of parent and child was established between the child of a stranger and a married man and woman with the mutual consent of both. In 1887 that was enlarged, so that a child adopted had heritable qualities and might take the property of the father or mother to the exclusion of those who otherwise would have been the heirs at law, provided there were no natural children of the persons adopting the child.”

While, therefore, the act of 1873 must be regarded as the first formal enactment providing for statutory adoption, and thus beyond question legalizing the same, this very act (chap. 830, Laws of 1873), by its thirteenth section, recognizes the fact that adoptions had taken place prior thereto, because it provides that “ nothing herein contained shall prevent proof of the adoption of any child heretofore' made according to the methods practiced in this state from being received in evidence,” etc. While, therefore, adoption was not known to the common law, and was never in any way regulated by statute in this state until 1873, its existence prior to the latter date was undoubtedly recognized. We think, however, that the learned trial judge was unduly influenced by a consideration of the provisions relating to statutory adoption in determining the question presented for his consideration; It was not one as to whether there had been a formal adoption pursuant to some law or statute which would have entitled the defendant, by virtue thereof as aq adopted child, to succeed to the property of the adopting parents; but, as already said, the question was, whether an agreement, such as has been here established, can be enforced in equity.

In the case of Gall v. Gall (handed down herewith), this questian has been considered by this court, and the views expressed by Mr. Justice Talcott, in Shakespeare v. Markham, 10 Hun, 322, have been referred to with approval. It was in the latter case said: There is upon the authorities no doubt that in a case where a certain and definite contract is clearly established even though it involves an agreement to leave property by wid, and it has been performed on the part of the promisee, equity in a case free from all objections on account of the adequacy of the consideratian, or other circumstances rendering the claim inequitable, will compel a specific performance.” Again, the courts require clearest evidence that a contract founded on a valuable consideration, and certain and definite in all its parts, should be shown to have been deliberately made by the decedent.

In his able review of the authorities in the Gall case, Mr. Justice Barrett says, it is true, 'that those in which performance have-been enforced were principally cases where specific property was-agreed to be devised or bequeathed upon an adequate consideration. He further states: “We have found no case in this state where an agreement to leave the whole of one’s estate, real and personal, to a particular person has been enforced. On the contrary, there are cases where specific performance of such a contract has been refused.” He says: “ It is vitally important that the statute of wills should be maintained in its integrity. * * *" So important are these provisions with respect to testamentary disposition that it has been doubted whether in any case, especially when the contract is sought to be established by paroi testimony, so patent a means for their evasion as bills for specific performance should have been allowed. It is certain, however, that in this class of cases the ordinary rules which govern in actions to compel the specific performance of contracts, and which furnish reasonable safeguards against fraud, should not be extended, but should be rigidly applied. These rules require that the contract be certain and definite in all its parts, that it be mutual and founded upon an adequate consideration, and that it-be established by the clearest and most convincing evidence. * * * That the remedy is a fnatter of judicial discretion, and that relief should be withheld where a decree for specific performance would work injustice to innocent third persons or where it would be contrary.to public policy.”

Upon the application of these principles in the Gall case, it was held that the contract sought to be enforced “ was not established with reasonable certainty. It was not made with parents-for the benefit of an infant, but directly with an adult.”

It will thus be seen that while the courts are reluctant to-enforce such contracts where there is the slightest suspicion of fraud, or the slightest doubt as to the existence and certainty of the contract, yet the law recognizes that specific performance will be decreed of a definite contract founded .upon an adequate consideration which is established by the clearest proof. Where, therefore, the act of adoption is based upon a contract, it is not the law or statute regulating adoption that is to prevail, but" the law relative to contracts. Wharton Conflict of Laws, § 251.

Applying the principles thus laid down for our guidance, the conclusion to be reached in this case must necessarily depend upon the character and strength of the evidence adduced to support the contract alleged. In respect thereto we have no more difficulty than did the learned trial judge in arriving at the conclusion upon the testimony that Mrs. Kidd while an infant was adopted by Mr. and Mrs. Knapp and “ made substantially and virtually their 'child.” The agreement made between these people and the mother of Mrs. Kidd, showing a complete surrender of the child to them, on condition that they should have the care and custody of the child free from any control or interference on the part of the parents, and upon their death should leave her their property, is clearly established. We have not only direct testimony as to the terms of the agreement, but all the surrounding circumstances unequivocally support its existence. So complete was the control vested in the Knapps that from 1844 to the date of Mrs. Knapp’s death in June, 189.0, the defendant never knew but that she was actually the child of Mr. and Mrs. Knapp, and it was only after her marriage that she learned she was the child of other parents.

The enforcement of the contract here will not result in injustice to any third j)ersons, nor is it against public policy; but in view of the literal way in which it has been performed upon the part of the defendant’s parents and her own, it would be an extreme hardship and both inequitable and unjust if she were now prevented, after all these years of performance on her part and that of her parents, from enforcing it. Even though we should assume, therefore, that none of the arrangements between the parties was of original binding obligation upon the defendant’s parents, yet the subsequent performance and fulfilment thereof by defendant and her parents, so that thereby the Knapps actually got all they bargained for, would furnish a sufficient consideration to support-their promises as effectually as if the agreement had been of original binding obligation. What the Knapps bargained for was, at the very least, forbearance by and on the part of defendant’s parents of some of their rights, and was an adequate and sufficient consideration for their promises and undertakings.

It has frequently been held that the consideration for a contract or promise need not be adequate in point of value. If there be any consideration the court will not weigh the extent of it; it has no means of scrutinizing the varied hidden motives and reasons that may have influenced the parties and induced them to enter into the contract, nor can it determine upon the prudence or propriety of the transaction. Where an offer is accepted by the party doing the act which forms the consideration, and when the promisor has had the benefit of the consideration for which he bargained, it is no answer in an action brought for a performance of the agreement to say that the promisee was not bound by the contract; it is enough if the promisee did it on the faith of the undertakings of the promisor and upon showing that the latter got the benefit of it. As said in Leake on Contracts (p. 613), “The adequacy of the consideration is for the parties to consider at the time of making the agreement; not for the court, when it is sought to be enforced.” Here, with the consent of the defendant’s parents, the Knapps obtained the privilege of supervising and directing the defendant’s education, her life, habits and tastes, the formation and development of her character, and the privilege of treating her as their own daughter, and of being regarded and loved by her as her parents. They at the time were childless, and were no doubt actuated by the same feelings and instincts which or■dinarily move lonely and childless people to adopt as their ■own the child of others; and that there was resultant benefit to them is abundantly established by the evidence. The defendant not only regarded them as her parents, but in all respects conformed to the strictest requirements of an affectionate and dutiful child.

Upon these facts, who would question the worth, adequacy and sufficiency of the consideration received by the adopting parents? Lives that are drear and blank are thus oftentimes cheered and animated and filled with new hopes and ambitions, fresh impulses and awakened energies. These are the contributions of youthful love and affection and companionship to childless old age. But whether or not the results expected from adopting the defendant were in all respects realized, this in no way affects the adequacy of the consideration moving from the parents of the defendant and supporting the promise made by the Knapps.

On the part of the parents and on the part of $le defendant it was fully and completely performed, and all of the youth, early womanhood and a considerable portion of her married life, the years intervening between 1844 and 1890, were devoted by the defendant in performing those filial duties of affection and care which, according to all the evidence in the case, is shown to have been that of a loving daughter towards aged and, in their latter years, sickly parents. A contract which has been "thus established, entirely free from doubt or suspicion, founded upon an adequate ■consideration which has been fully performed on one side, and the intention to perform which on the other was only rendered .abortive by a mistake as to the situation and ownership of the property, should be enforced in its entirety unless some settled principle of law or equity would prevent its enforcement.

As already stated, there is abundant law to sustain the view that “ where a certain and definite contract is clearly established, ■even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity in a case free from all objections on account of the adequacy of the consideration, or other circumstances rendering the claim inequitable, will compel specific performance.”

Though recognizing this well settled law, the respondent insists, in addition to the other objections to defendant’s right to retain the property which have already been discussed, that there are two insuperable objections to her obtaining any relief. The first is, that as the property in question is real estate, and the agreement set up in the answer is a paroi agreement, supported entirely by paroi testimony, it cannot be enforced because void by the statute of frauds, not being in writing. The answer to this, however, is that a verbal agreement that has been performed by one of the parties, though made with reference to real estate, is taken out of the statute of frauds and is valid in law.

The second objection goes to the admissibility of the evidence of defendant’s mother (which was the direct testimony offered .as to the terms of the contract), upon the ground that such evidence was incompetent under § 829 of the Code of Civil Procedure. This section provides that, upon the trial of an action, a person from, through or under whom a party derives his interest or title, by assignment or otherwise, shall not be examined as a witness in behalf of the party succeeding to his title or interest, against a person deriving his title or interest from, through or under a deceased person, concerning a personal transaction or communication between the witness and the deceased person. We fail, however, to recognize any force in this contention, because we do not see that the defendant derived her interest or title by assignment or otherwise from her mother; but, on the contrary, her rights were obtained under a contract made, it is true, by the mother, but under the terms of which she derives from the Knapps her title and interest, if any, in and to the property. Were this a contract made by defendant’s mother for her own benefit, which had been assigned to the defendant, then there might be some force in the suggestion. But it is clear that this is a case where the contract was made by the mother on behalf and for the benefit of the child; and her interest was in no way derived from or received through her mother. We think the test of this objection is to be found in a consideration of whether or not the mother could have maintained any action for this property, or whether she at any time or under any circumstances would have any interest therein. We think it reasonably certain that the conclusion to be arrived at must be that the mother could not maintain an action to enforce the contract for her own benefit, nor had she any interest at any time in the property to which the defendant succeeded. There is abundant authority to sustain the position that a person for whose benefit a contract is made may maintain an action thereon, although the consideration was one between the promisor and the third nerson. Todd v. Weber, 95 N. Y., 181.

Upon the law, therefore, as applied to the facts of this case, we are of opinion that there was no valid objection to the enforcement of the contract, and upon the undisputed facts it was error on the part of the trial judge not to have granted the defendant’s motion for a dismissal of the complaint. The defendant’s exceptions, therefore, to the refusal to rule in her favor should be sustained and the judgment reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., and Barrett, J., concur.


text:
    John W. Cochrane et al., Ex’rs, Resp’ts, v. Cornelia Elizabeth Schell, App’lt, and Sarah Ann Kip et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Will—Action to construe.
    Executors who are in doubt as to the rights of the persons interested under a will as to surplus income, and as to their own duties in respect thereto, are not entitled to a general construction of the will, but only so far as to reach a determination as to their present duty.
    2. Same—Trust—Undisposed op income.
    Testator, by his wil', gave the residue of his estate to his executors in trust to receive the ren.s and income, and to pay certain specified amounts to his daughter and grandchildren, and on the death of the daughter to transfer all the estate to the grandchildren. The income largely exceeded the sums so directed to be paid. Reid, that the trust was one of those provided by the statute, and was not invalid merely because it failed to dispose of the entire income, and that the surplus should be paid to the grandchildren, who were entitled to the next eventual estate.
    Appeal from judgment construing will.

      James Otis Hoyt, for app’lt; Frank L. Hall, for pl’ffs-resp’ts; Chas Steele and Walter C. Gilson, for def’ts-resp’ts.
   O’Brien, J.

The object of this action was to obtain a judicial construction of the last will and testament of Adam W. Spies, deceased, and particularly of the ninth and twelfth paragraphs of said will as the same are modified by the third and fourth paragraphs of the second codicil thereto, with a view to having a determination of the persons to whom surplus of income in the hands of the executors and trustees should be given.

As most of the questions arising upon this appeal are dependent for their solution upon the view to be taken as to the scope of this action, a preliminary statement of what is sought by the ■complaint is rendered necessary.

The complaint alleges that Adam W. Spies died in May, 1891, leaving a last will and testament by which the plaintiffs were appointed executors and trusteesthat all the above named defendants are the only heirs of law and next of kin, and the only persons entitled to share in the income of distribution of the estate under the terms of the will; that the principal of the estate largely ■exceeds the amount of the specific bequests made by the said will, together with any probable claims against it; that the amount of income largely exceeds the payments directed to be made; and that the plaintiffs are in doubt as to the rights of the several defendants under the provisions of the will, and especially as to the proper and legal disposition of any surplus or income from the .said estate remaining after the payments therefrom directed by the said will to be made, and as to their duties as executors and trustees in respect thereto.

While, therefore, the object sought by the action might at first blush be regarded as an attempt to obtain a construction of the ■entire will, it is evident that the primary and essential purpose was to have a determination in respect to the proper and legal disposition of the surplus of income. The facts showing an existing doubt in regard to a present question, we do not think that the court would have any right to extend the scope of the action beyond a determination of such present existing question. In other words, the executors have only a right to ask the opinion of the court as to their present existing duties, what they shall now •do, not what they may do or shall hereafter do upon any future facts. The plaintiffs were, therefore, entitled only to instructions and an opinion from the court as to their duties to-day. That such must be the rule is evident when we consider the character and nature of the action and remember, as is well exemplified in this case, that a broader rule would result in passing upon- the rights of parties not before the court and perhaps still unborn.

For the purpose of guiding these executors and trustees in the discharge of their duties, and of disposing of the question presented, it was undoubtedly necessary for the learned judge below to so far construe the will as to reach a determination as to the persons who would be entitled to the next eventual estate, it being conceded that the persons so entitled should receive the surplus income. While, therefore, a number of questions were presented to the trial judge, just as they are presented upon this appeal, for discussion, the real ones involved relate solely to the validity of the trust to plaintiffs and a proper judicial determination of the persons to whom they may properly pay over the surplus of rents and income which may remain after the payment of the annuities provided in the will. That this view of the limited scope of this action is correct is enforced by the pleadings, and particularly by the failure of any of the defendants as against each other to ask for any affirmative relief, or, with that object in view, to serve, as required by the Code, their answer upon their co-defendants. We are of opinion, therefore, that, whatever may be the determination as to these questions, the judgment, as amended, adjudging that the testator’s residuary estate was vested absolutely in remainder in the eight grandchildren, and that the surplus income of the estate, in case of the death of any grandchild during the continuance of the trust created by the will, is payable to the heirs and next of kin of such grandchild, should be so amended as to exclude any such determination thus made, and should be confined solely to a determination whether the trust under the will was valid, coupled with the direction to the trustees to distribute the surplus income among those entitled thereto.

To determine these questions resort must be had to the will and codicils. By the ninth paragraph, all the residue of the testator’s estate, both real and personal, is given to his executors and trustees thereinafter named, and to the survivor and survivors of them and their successors, in trust, to collect and receive all rents of the estate "and all interest, dividends and income from the personal estate, and, after paying taxes, insurance and other legal and necessary expenses thereon, to pay thereout to the daughter and to the grandchildren named, certain amounts annually. By the tenth paragraph, power of sale is given to the executors covering all the property granted to them by the ninth. The twelfth paragraph, as to which the principal question arises, is as follows :

Twelfth: At the death of my said daughter Sarah Ann, to close this trust I direct that my executors and trustees convey and transfer all my estate, both real and personal, then remaining in their hands to such of my grandchildren as shall then be living (except my said granddaughter Sarah Ann French), viz. : Arthur De Witt Cochrane, Adam W. Spies Cochrane, Cornelia Elizabeth Schell, Henry Spies Kip, Garret Berg Kip, William Rudolph Kip and Florence Adele Kip, equally, share and share alike, and I hereby give, devise and bequeath the same to such seven grandchildren, but if any of said seven grandchildren shall die previous to the decease of my daughter Sarah Ann, leaving issue him, her or them surviving, then I direct that such issue shall take the share to which their parent would have been entitled hereunder (if living); under this clause of my will said shares to be received by said grandchildren or their descendants free from any control or claim of any husband that she or they may have at any time.

By the fourth paragraph of the second codicil, he directs that his granddaughter Sarah Ann French shall be included in the division of his estate as mentioned in the twelfth clause, and shall share therein equally with his other seven grandchildren.

It therefore appears that, until the death of the defendant Sarah Ann Kip, the testator has provided for the distribution of but $20,000 of the annual income, which, in the event of the arrival at the age of twenty-five years by the defendant Arthur De Witt Cochrane, would be increased to the amount of $22,000. The court below found that the testator’s residuary estate consisted of real estate of the value of $1,000,000, yielding an income of about $80,000, and personalty amounting to $2,000,000, yielding an income of about $60,000; making the annual net income of the residuary estate about the sum of $80,000; thus leaving after the payment of annuities a surplus of about $60,000 every year undisposed of. ^

Whatever doubt may have existed as to what rule prevailed at common law, the statutes of this state make provision for the disposition of surplus income in certain cases as follows: “When, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.” 1 R. S., 726, § 40.

With respect to the excess here, neither the will nor the codicils contain any provision for its disposition; and the question whether the statute applies is to be determined by the conclusion to be reached as to whether, in consequence of a valid limitation of an expectant estate, there is a suspense of the power of alienation or of the ownership.

On the one side the position is taken that as to his residuary estate the testator died wholly or partially intestate; while on the other, it is as strenuously insisted, as found by the learned judge below, that the grandchildren took a vested estate in remainder in such residuary estate. This latter view assumes that the trust created by the ninth and tenth paragraphs of the will is valid, and vests the whole residuary estate in the trustees during the life of Mrs. Kip, just as the contention of the appellant is predicated upon the theory that no valid trust was created, and no estate was vested in the executors and trustees. Among the four express trusts provided by statute is one “to receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for any shorter time.” It would seem, therefore, that the testator did what the statute permitted him to do; and the only argument urged against the validity of the trust results from a failure to direct the disposition of all the income. It is evident, however, that the testator

deemed it requisite that all his residuary estate should be devoted to the execution of the trusts, and there is no right or power in the court to assume the responsibility of deciding otherwise. If the argument thus urged against the validity of this trust is to prevail, it would follow that unless a fund can be set apart which shall produce exactly the amount of the annuities, and no more, the trust would be invalid. That such is not the law has been determined by the cases of Hawley v. James, 16 Wend., 60; Leggett v. Perkins, 2 N. Y., 297; Haxtun v. Corse, 2 Barb. Ch., 506.

In the first case it was said: “ It can make no difference whether the trust extends to all the rents and profits of an estate, or is confined to some specified sum of money. It is not neces.sary that the trustee should have a discretion as to the amount to be applied; the donor may settle that for himself.”

Besides these cases, however, a consideration of the purpose sought to be effected by the statute relating to the disposition of surplus income shows that cases may arise where all the income is not disposed of during the continuance of the trust. If, therefore, a failure to dispose of the entire income would render a trust pro tanto invalid, there would be no income to dispose of and a case could not arise to which the statute would be applicable. This would be in effect to hold that the statute regulating the disposition of surplus income was nugatory and useless, because applying to a contingency that could never happen. It is plain, therefore, that the trust is not invalid merely because there may be income from the trust estate beyond the amount required to pay the annuities provided by the will. Besides those already referred to, the statute has been applied in the following cases where questions in respect to undisposed income under a trust have been presented. Cook v. Lowry, 95 N. Y., 103; Pray v. Hegeman, 92 id., 508; Barbour v. De Forest, 95 id., 13; Horton v. Cantwell, 108 id., 255; 13 St. Rep., 615.

This being a case, therefore, where the statute will apply, it remains to determine who are the persons presumptively entitled to the next eventual estate, because to such must be paid over the surplus income. We think, upon a reading of the will and codicils, that these persons at the present time are the eight grandchildren to whom the expectant estates are given: this conclusion applying to the income from personalty as well as to the rents and profits from the realty.

It will thus be seen that we agree with the conclusion reached by the learned trial judge as to the disposition to be made of the surplus income, the only criticism to be made relating to the determination of questions not properly within the scope of the action ; our conclusion being that the decree should be limited to declaring that the trust under the will was valid, and directing that the trustees should distribute the present surplus income equally among the eight named grandchildren. We think that to this extent the judgment should be affirmed, and in other respects should be modified, thus leaving the other questions as to the interests of the parties to be determined when they arise, the costs of the appeal to all parties to be paid out of the fund.

Van Brunt, P. J., and Barrett, J., concur.


text:
    John W. Cochrane et al., Executors, Resp’ts, v. Sarah Ann French et al., App’lts, and Sarah Ann Kipp et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    Appeal from judgment construing will.

      Charles Steele, for app’lts; Frank L. Hall, for pl’ffs-resp’ts; James Otis Hoyt and Walter C. Gilson, for def’ts-resp’ts.
   O’Brien, J.

The questions discussed upon this appeal are the same as those involved in the case of Cochrane et al. v. Schell, herewith handed down, and the conclusions therein reached are applicable, and a similar disposition of this appeal should be made.

Van Brunt, P. J., and Barrett, J., concur.


author: Van Brunt, P. J.

text:
    In the Matter of Catherine R. Smyley et al.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    Attorneys—Summary proceedings against—Moneys received conditionally.
    Appellant was retained by respondents and other heirs to collect from a foreign ancillary administrator the amount realized by him from the estate. The administrator disputed the amount due, and finally remitted to appellant the amount he admitted to be due, with instructions to hold it in trust for the heirs hut not to pay it to them until they had duly and properly signed a release. Some of the heirs signed releases and received their share, but respondents did not tender any release or consent to a discontinuance of the action brought. Feld, that the administrator was not bound to pay except as the result of a judicial decree, and if he chose to-make a settlement had a right to place it in appellant’s hands as he did under restriction, and the latter had no right to dispose of the money except pursuant to the authority conferred upon him; that if respondents desired the money they were bound to tender releases, and that the court had no power to summarily direct payment.
    Appeal from order directing the appellant to pay over certain moneys alleged to be in his hands as the attorney of the respondents.

      D. McCurdy, for app’lt; W. B. Wilder, for resp’t.
   Van Brunt, P. J.

It is not necessary to state in detail the facts established by the voluminous record presented upon this appeal. We think it to be established that the relation of attorney and client existed between the appellant and the respondents, and the only question which is open for discussion is as to whether under the circumstances developed the appellant, who is the attorney for the respondents, should be compelled to pay over the money in his hands which is claimed by them.

It appears that in February, 1868, one Captain W. H. Smyley, for twenty years American consul to the coast of Patagonia, and United States commercial agent to the Falkland Islands, departed this life at Monte Video, in South America, leaving an estate in said Falkland Islands. Captain Smyley left him surviving Catherine E. Winter, his widow, one of the respondents, Catherine R. Smyley, a daughter, the other respondent, William H. Smyley, Jr., a son, and Evelina J. Shuttleworth. his only heirs at law and next of kin.

Letters of administration on the estate were thereafter issued by the surrogate of the county of Queens and State of New York to his widow, and subsequently one George M. Deane was appointed ancillary administrator by the colonial court in the Falkland Islands, and pursuant to such letters took possession of the real and personal estate of said deceased. The respondents subsequently retained attorneys to collect from said Deane the amount realized from the estate of said deceased, and finally the appellant was so retained.

It is not necessary here to discuss the facts which lead to the conclusion that the relation of attorney and client existed between the appellant and respondents.

The said Deane, having made certain remittances on account of the estate which were duly paid over to the parties interested, came to this country, and while here attempted to make a final settlement with the heirs of Smyley for the moneys of said estate which had been collected by him; the persons interested claiming a larger amount from said Deane than he was willing to pay. Finally, on the 11th of November, 1887, the said Deane mailed to the appellant a draft on London for the sum of £429.0.11 sterling, being, as stated by him, the balance due the estate of the late W. H. Smyley in the Falkland Islands, which amount he directed the appellant to hold in trust for the heirs of such estate, but not to pay it to them until they had duly and properly signed a release. Before the receipt of this letter the respondents brought actions, by the service of summons, against Mr. Deane for over $10,000 alleged to be due them from Deane as administrator. Deane subsequently saw the appellant and retained the firm of which the appellant was a member to defend said actions, authorizing them, as is claimed by the appellant, to defray the expenses of said action out of the draft which had been mailed to them; and the appellant’s firm shortly afterwards appeared for said Deane.

Frequent demands were made by the respondents upon the apjrcllant for their share of the money which had been placed in the appellant’s hands by Deane; but the appellant refused to pay except upon withdrawal of the suits and the full settlement of the whole controversy between Deane and themselves. Two of the shares (namely, that of Mrs. Shuttleworth and of W. H. Smyley, Jr.,) were paid to them upon their execution of releases. And it appears by the letter of the appellant’s firm to the respondent Winter, dated January 6, 1888, that the respondent Catharine Smyley had signified her desire to discontinue the action begun by her against Deane and accept the money held by the appellant, and she is asked whether she too wished “ to discontinue the action and accept the money now here in full settlement.”

This, however, Mrs. Winter appears to have 'refused, and shortly thereafter Mr. Deane died.

The only question which it is necessary tó discuss in the disposition of this appeal is whether the appellant was bound to pay over this money without obtaining the releases which were demanded by Deane as a condition of its payment. It is to be observed that as to two of the shares, upon the receipt of the release the money was paid; and that there was a refusal upon the part of the respondents to discontinue their actions and accept the money in full settlement as required by Deane until after his death. And in fact it does not appear in the record that there • ever was any tender of releases or offers to discontinue the actions-brought by the respondents against Deane.

It is urged upon the part of the respondents that Deane had no-right to require the execution of any releases as a condition precedent to the payment and distribution of said fund by the appellant among the heirs. In this proposition we cannot agree with the counsel for the respondents. Deane was not bound to pay this money except as the result of a judicial decree; and if he chose to pay the same without that formality he had a right to- ‘ exact any instrument which he might think necessary for his protection, as a condition of payment. This being his position, he had the right to place the money which he was willing to pay in settlement of the claims made against him as administrator in any person’s hands and to restrain the payment of that money until the acceptance of such conditions as he chose to impose. And if the person receiving the money paid the same over in violation of those conditions, he would make himself liable to Deane for any damage resulting to him by reason of such a breach of trust. Therefore when Deane placed the fund in the hands of the appellant with the injunction that the same should not be paid out until releases were executed, the appellant had no right to dispose-of the money except in pursuance of the authority conferred-upon him by Deane.

It appears, as already stated, that to two of the parties who were-willing to execute releases as required by Deane, their shares were paid; but to the respondents who, as far as this record shows, never offered the required releases, no payment was ever made; and it is-to reach this money that this application was made and granted:

" We think this was clearly erroneous. If the respondents desired the money in question, they were bound to tender the releases as a compliance with the condition precedent which Deane had placed upon its payment.

It is true that it is claimed by the respondents that they were-willing, so sore was their need, to relinquish all their claims against the estate on the receipt of this money, but an examination of the case fails to show any such willingness or offer prior to the death of Deane, or, for that matter, after his death ; and the letter of January 6, 1888, shows that no such offer had been made. It is true it would appear from such letter that the respondent Smyley may possibly have been willing to recede from the position taken in order to receive her share of the fund, but no tender of any kind of either a release or discontinuance was ever made even by her.

We think, under the circumstances, the court had ho power to direct the payment of the money in question. We do not think that in claims of the character developed by the papers in this proceeding the court should attempt to dispose of the rights of parties in this summary manner, and that it is only where a party shows that he has a clear, absolute, unincumbered right to the immediate possession of money received by his attorney, on his behalf, that such proceedings should be entertained.

The order appealed from should, therefore, be reversed and motion denied, but without costs, because the point upon which the appeal is decided was not specifically raised either before the referee, or in the court below.

Barrett, J., concurs.


text:
    The San Remo Hotel Co., Resp’t, v. Michael Brennan, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Injunction—Summary proceedings—Modification op lease.
    In an action to restrain the prosecution of summary proceedings for non-payment of rent under a sealed lease for ten years, it was claimed by plaintiff that the premises were not ready for occupation at the time covenanted in the lease, and that in consideration of a waiver of a claim for such breach defendant consented to a reduction of the rent for the first year. Rent at such reduced rate had been paid, but defendant, relying on the terms of the lease, had commenced summary proceedings for nonpayment of the balance. Held, that the agreement claimed by plaintiff, if proved, was one which could be availed of to modify the lease, and that it was a proper case for the continuance of a temporary injunction until the trial of the action.
    3. Same—Bond.
    It appearing that the difference between the rent reserved by the lease and the reduced rent for the year would amount to §17,000, a bond in the sum of $20,000 was sufficient.
    .3. Same.
    As the injunction is only directed and limited to preventing a dispossession for non payment of rent, additional security should not be required for the Croton water, which the lease also required plaintiff to pay.
    Appeal from order continuing injunction restraining defendant from dispossessing plaintiff.

      William D. Guthrie, for resp’t; James P. Campbell, for app’lt.
   O’Brien, J.

This action was brought by the plaintiff as lessor .against the defendant, its landlord, to restrain him from proceeding to dispossess it for the non-payment of rent.

The lease was made under seal on the 21st day of March, 1891, and was to run for the period of ten years from the 1st of October, 1891. The rental during the first five years was to be at the rate of $6,000 per month, and during the remaining five years at the rate of $7,000 per month. In addition to the rent, the tenant agreed to pay the annual Croton water rates on or before August 1st of each year, and also to keep the premises, machinery, etc., in repair and running order at his own expense. The defendant never received the full rent reserved in his lease, but on October 10, 1891, took $4,000 for October, and thereafter $3,000 for ¡November rent, and each month subsequently, including February, $3,500. By the terms of the lease, the premises were to be ready for occupation on October 1st.

The plaintiff insists that this covenant was violated, in that a large number of the apartments, hallways and rooms were not completed and ready, and that the steam fitting, electric light apparatus, etc., were unfinished and incomplete. On the other hand, the defendant produces numerous affidavits tending to show that, the hotel was finished and in good condition on the 1st of October, 1891. As the result of such failure to fully complete and have the entire premises ready for occupancy, the plaintiff asserts that, a loss resulted and that it was damaged to the extent of $50,000, for which it would have had a good cause of action against the defendant. As a consideration for waiving this claim, plaintiff states that in December, 1891, an agreement was entered into between it and the defendant, by "which the rent reserved in the lease should be reduced from $6,000 to $3,500 per month, which reduction was to be continued until October, 1892. Plaintiff’s claim, therefore, is that the rent for the first year had been reduced by paroi agreement executed on its part, founded on ample consideration, to $3,500 per month, and that it is ready and willing to pay that, amount.

The defendant, insisting upon his right under the lease to the full rental of $6,000 per month for the balance of the first year, namely, from March to October, 1891, had begun summary proceedings to dispossess the plaintiff at the time of the commencement of this suit. The ground for relief prayed for by the plaintiff is, that as the lease was under seal it could not avail itself in the summary proceedings of the paroi agreement reducing the rent during the balance of the first year, and that consequently it-would be dispossessed and remediless unless a court of equity intervened by injunction.

The court below, until the trial of the action, continued a temporary injunction restraining and suspending the dispossess-proceedings, upon condition of plaintiff’s giving a bond in the sum of $20,000, which latter condition has been complied with; but from the order continuing the injunction this appeal is taken.

In disposing of the motion, the learned justice delivered the-following opinion:

“ After a careful examination of the voluminous papers submitted on this motion, I have reached the following conclusions
“First: The assignment of the lease to the defendant was made with the consent of the defendant, and he cannot now be heard to complain of the same.
“Second: Some portions of the hotel were unfinished and unfit for occupancy on the 1st of October, 1891, and for some time thereafter, and the plaintiff had a valid claim for damages because of such fact, and the waiver of such damages would be a sufficient, consideration for an agreement on the part of the defendant to accept a reduced rent until the 1st of October, 1892.
“Third: There can be no question that the defendant agreed to accept and did accept a reduced rent for several months in full payment of the rents reserved in the lease. Whether the defendant agreed to accept a reduced rent until the 1st of October, 1892, or whether he declined to make such agreement for any definite-period and only agreed to take a less sum until times should be better, is in dispute, and it is impossible to determine that question upon ex parte affidavits.
“ Upon all the papers, the statement made on behalf of the plaintiff as to the agreement seems to me to be the more probable one, but it is for the trial court to determine what the actual fact was.
“Fourth. If the plaintiff upon the trial shall prove that the agreement was such as it claims the agreement was, I think it probable that it will succeed in the action.
“Fifth. If the injunction is continued until the trial, the defendant can be fully protected from all loss by a proper undertaking; whereas, if the injunction is dissolved, and the lease is terminated by dispossess proceedings, the plaintiff will suffer irreparable injury.
“Sixth. The motion to continue the injunction should be granted on condition that the plaintiff give such undertaking.
“ The order will be settled on notice, and the amount of the undertaking will then be fixed.”

It will thus be seen that upon the disputed question of fact he has reached a conclusion favorable to the view advanced by plaintiff, leaving it, however, for the trial to determine finally the merits of the positions taken respectively by the parties. In the absence of any such preponderance of proof as would justify us in holding that the conclusions reached upon the facts by the learned judge were erroneous, we are not disposed, upon a motion of this kind, to disturb such conclusions.

The serious question presented, however, relates, not to the facts as concluded by the judge, but to the law as applicable thereto. This goes to the very foundation of the right of the plaintiff to maintain this action. The ground for the relief prayed for by plaintiff, as already stated, was the inability to avail itself of the agreement claimed to have been made, by which the rent was reduced, and which in summary proceedings would have been unavailing as a defence, for the reason that the original instrument of lease was under seal, and the effect would be to modify the same by a paroi agreement.

It is insisted by appellant that the contract set forth in the complaint, being an oral one intended to reduce the rent reserved in, and in that respect to modify, a lease for ten years, which by statute must be in writing, and to which the parties had affixed their seals, is void at law and may be repudiated by either party so far as the oral modification remains unexecuted. In support of this proposition we are referred to the cases of Coe v. Hobby, 72 N. Y., 141; Smith v. Kerr, 108 id., 31; 13 St. Rep. 115; McKenzie v. Harrison, 120 N. Y., 260; 30 St. Rep., 934, and McGreery v. Day, 119 N. Y., 1; 28 St. Rep. 597.

■ In Coe v. Hobby, it was held that a contract or covenant under seal cannot be modified before breach by a paroi executory contract. In Smith v. Kerr, it was held that a simple executory agreement, without consideration, to alter the terms of an existing unexpired lease in which no breach had occurred, was void. In McKenzie v. Harrison, p. 263, the court said: “We shall not question the rule that a contract or covenant under seal cannot be modified by a paroi unexecuted contract." These cases, however, in no way destroy the force of the rule, maintained by many cases, that after the breach of a sealed agreement it may be modified in any respect, or wholly rescinded by an executed paroi agreement founded upon a sufficient consideration. Dodge v. Crandall, 30 N. Y., 294, 307. A paroi modification of a sealed instrument, to be enforceable, must be an executed, as distinguished from an executory contract, and it must be a valid binding agreement, founded upon a sufficient consideration. Therefore, if the facts here had-shown that the landlord had performed all the covenants on his part, and that thereafter the tenant, having entered into possession, had made an arrangement with the landlord for an abatement of the rent secured by a sealed instrument with respect to any portion.of the term; notwithstanding such an arrangement an action would be maintainable for the amount stipulated in the sealed lease. This was the question which the court of appeals disposed of in McKenzie v. Harrison, 120 N. Y., 260; 30 St. Rep., 984, where the landlords, after having reduced the rent, and accepted payment of instalments thereof in full “ until times are better,” sued for the balance of the instalment under the lease for which they had receipted in full, and a verdict was directed in their favor. The court therein said : “ We shall not question the rule that a contract or covenant under seal cannot be modified by a paroi unexecuted contract. * * * Neither shall we question the views of the court below, to the effect that the alleged oral agreement was void so far as it remained unexecuted. The lessors had the right to repudiate it at any time, and demand the full amount of rent provided for in the lease; but in so far as the oral ■agreement had been executed, as to the paj'ments which had fallen due and had been paid and receipted in full as per the oral agreement, we think the rule invoked has no application.”

The question here presented is different from that decided in McKenzie v. Harrison, supra, in that, if the facts stated by the plaintiff can be proven upon a trial, that, having a valid claim for damages by reason of the breach of the covenant for occupation and enjoyment on and after October 1st, this claim was waived in ■consideration of the paroi agreement to take a less rent for the first year, such an agreement executed on the part of the plaintiff, ■and partly performed by the defendant by the allowances, made for the months of the year that have passed, we do not think could have been repudiated. And this, we think, will become apparent if for the purpose of disposing of the question we assume the plaintiff’s facts to be sustained by competent pi’oof. Thus assumed, if the premises were not ready for occupancy on the 1st of October, 1891, and the tenant had gone into partial possession, it could have successfully defended an action for the rent or have brought a suit in equity for an apportionment. Brown v. Wakeman, 42 St. Rep., 677; Kelly v. Miles, 48 Hun, 6; 15 St. Rep., 319.

As said by Mr. Justice Daniels, writing the opinion in the case of Kelly v. Miles, supra: “ The occupancy assured to him ” (the tenant) “.by the lease was the consideration for his covenant to pay, and to the extent that he was deprived of the ability to occupy by the act of the owner under the authority and assent of the defendants, the plaintiff was entitled to an abatement and apportionment of the rent.”

These cases are authority for the position that one who enters-into possession of part of premises, all of which has been hired by him, does not thereby waive his right to equitably set off against the rent reserved in the lease the value of the portion of the premises the possession of which may have been withheld by reason of the failure of the landlord to fulfil the agreement on his part to have them ready for occupancy. They are, also, authority for the-maintenance of an action such as this, wherein it is sought to stay dispossess proceedings against the tenant, where the facts relied upon by the tenant are not available in such proceedings as a defense.

We are therefore of opinion that a paroi agreement, such as is asserted by plaintiff and made the basis of his complaint, is not purely executory, and one that therefore may be repudiated by either party. If upon a trial it can be shown that the premises were unfinished and unfit for occupancy on October 1st, and that thereby the plaintiff had a valid claim for damages as against the defendant, which in consideration of waiving was made the basis of an agreement by the defendant to take a less sum of the year ending October 1, 1892, then is presented within the authorities a care where a paroi agreement, based upon a sufficient consideration after a breach, has been established, which can be availed of to modify a lease under seal, and which cannot be repudiated if shown to have been executed by one of the parties and partially executed by the other. Even though this view should be in seeming conflict with some of the authorities, we think that the questions presented were serious enough to require their disposition in a more deliberate manner than by affidavits upon a motion, and that it was a proper case to continue the injunction until a trial could be had; and this for the reason well expressed by the learned judge that, “if the injunction is continued until the trial, the defendant can be fully protected from all loss by a proper undertaking; whereas, if the injunction is dissolved, and the lease is terminated by dispossess proceedings, the plaintiff will suffer irreparable injury.”

The only other question relates to the amount of the undertaking given by the plaintiff upon the injunction.

The difference between the rent reserved in the lease and the amount payable under the agreement as claimed by plaintiff would, on the 1st of October, 1892, should the defendant be successful, require the payment by plaintiff of the sum of $17,500. A bond, therefore, in the sum of $20,000 we think was sufficient. Should the trial not be had within a time that shall fully protect the defendant, or should any facts arise entitling the defendant to additional security, the opportunity is always present to obtain additional security upon application.

In respect to the claim that, in addition to the rent reserved, security should also have been given for the Croton water which the plaintiff had agreed to pay, it is sufficient to say that it is entirely independent of the question involved here as to the amount of rent, and this injunction in no way impairs the defendant’s right to insist upon the performance of this condition in the lease, or any other conditions or obligations on the part of the plaintiff; the injunction itself being directed and limited to preventing the plaintiff being dispossessed by reason of a failure to pay the difference between $3,500 and the $6,000 reserved in the lease. For this difference, as already stated, $20,000 is ample security; and this, with the right which is given to defendant, should the trial of the case be unnecessarily delayed, to move for additional security, will amply protect him.

Upon an examination, therefore, of the record, showing the reasons for the making of the order appealed from, we think the learned judge was right in giving the plaintiff an opportunity to have a trial where it could produce and examine its witnesses and, if able, establish the good faith of its claim that the hotel was not ready for occupancy at the date agreed upon, which resulted in damages to it, and which in consideration of a reduction of the rent for the first year it waived.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Barrett, J., concur.