text:
    In the Matter of the Petition of Anna M. Tienken.

      (Court of Appeals,

      Filed March 1, 1892.)

    Will—Vesting of estate.
    By his will testator gave certain land to his wife for life and the remainder to his executors in trust for the life of the wife, to give her a certain annuity an d divide the balance among his children, with power of sale of certain portions of the realty, two-thirds of the proceeds to be divided among the children. It further provided that if any child should die leaving issue, such issue should take the father’s share, and that after the expiration of the life estate the land should be sold and the proceeds divided among the children. One of the sons died after testator’s death and during the life of the widow, leaving a widow and children. Held, that the estate vested in the children at the death of the testator, the trust only postponing the period of enjoyment and the sale being intended to conveniently sever the interests of those already entitled.
    Appeal from judgment of the supreme court, general term, second department, reversing decree of surrogate of Kings county.

      Treadwell Cleveland, for app’lts; Theo. K Melvin, for resp’t

       Affirming 39 St. Rep., 883.

   Finch, J.

The fundamental question upon -which. the construction of this will turns is whether an estáte' in remainder vested in the children of the testator at his death, or in such of them as should survive the death of the widow and consequent termination of the trust. The general scheme of the will contemplated two essential results : a provision for the widow during her life through the operation of a trust securing income for her support, and, subject to that, a gift of all the property to the testator’s children ; but the details of that general plan have been formulated in the terms of the will with such a degree of ambiguity and uncertainty as to have evoked a difference of opinion in the courts below, and to justify a careful consideration of the question presented.

The trust for the benefit of the wife was created by the fourth clause of the will. By the-third clause the testator had given his homestead in Flatbush to his wife for life, together with the furniture and household appurtenances, absolutely and forever. His will then gives, devises and bequeaths to his executors all the rest, residue and remainder of his real estate in trust during the life of his wife for certain stated uses and purposes. These were to pay to his wife $2,000 each year, in quarterly payments of $500, and out of the-income remaining to pay all taxes, water rates and assessments and all necessary repairs, and, in the final words of the clause, “ apply the balance or remainder, once a year, between my children, share and share alike, for their use, benefit and maintenance.” The controversy between these parties begins with this clause. The appellants contend that it vested the whole and entire estate, except the life estate of the widow in the homestead, in the executors as trustees; that there was no estate in remainder created by the will, or which could descend without it; and that there were and could be no ultimate rights in the children, except by and through the trust-.

So far as this clause is concerned, considered by itself and without reference to the later provisions which are claimed to explain or qualify it, there would seem to be no ground for enlarging the legal estate of the trustees beyond one for the life of the widow. It is devised with that precise and definite limitation in the terms of its creation, and no purpose of the trust, as thus far indicated, requires in the trustees a legal estate beyond or superior to one for the life of the widow alone. The rule is settled in this state that the trustee takes a legal estate commensurate witli the equitable estate, and that outside of that there may be remainders and future estates or powers of sale adequate to terminate the trust. Crooke v. County of Kings, 97 N. Y., 421. In the present case, under and by force, of the fourth clause, the equitable estate bounded by the life of the wife dictated a legal estate in the executors having the same limitation, and the terms of the devise as expressed in the will correspond with the necessary legal result. There was, therefore, outside of the trust a remainder in fee which went somewhere, and which either descended to the heirs-at-law upon the death of the testator, or was devised by the further terms and provisions of the will; and we cannot, under the fourth clause at least, get rid of the inquiry upon the appellants’ theory that the entire legal estate vested in the executors and no remainder existed. It is further to be observed that in this clause the phrase “ my children ” plainly refers to the testator’s four living children who were then in his mind and who were to share equally in the balance of income when his will should take effect.

The fifth and sixth clauses which follow serve to modify the trust in the discretion of the trustees as it respects two specific parcels of the real estate. The executors were entrusted with a power of sale which they were at liberty to exercise during the life of the widow and before the original period fixed for the termination of the trust. But upon such sale one-third of the net proceeds realized was to remain as a trust fund in the hands of the executors for the benefit of the wife, and the remaining two-thirds was to be divided, as the words are, “ equally among my children share and share alike.”

This power of sale in no manner enlarged or changed the quality of the estate vested in the trustees by the fourth clause. It was a power in trust which in and of itself, and although perhaps connected with a right to receive the rents and profits, did not vest title in the trustees. Cooke v. Platt, 98 N. Y., 35; Chamberlain v. Taylor, 105 id., 192; 7 St. Rep., 517. Of course it could add nothing to the scope and extent of the legal title vested in the executors for the life of the wife. Two things about this discretionary power, however, are worthy of consideration. It is again “ my children ” to whom the testator refers as distributees, and the expression does not mean and cannot mean such of them only as should be living at the death of his wife, for the precise "purpose of the authority conferred was a possible distribution earlier than that event. The second thing demanding our attention and to rest in our memory is that outside of the trust provision for the widow the balance of proceeds of the sales goes at once and absolutely to the use and benefit of the children.

The eighth clause of the will has been quite prominent in the controversy, and- two very different interpretations have been given to it, either of which its language will possibly bear. It reads thus: “ Whereas, in this will is mentioned and described gifts, devises and bequests to my children, if any of them should be dead, leaving issue surviving them, I do direct that the issue of any of my children deceased shall take the same share their parent would have received had such parent remained living, and to be divided among them, the said issue, share and share alike.” I think its true meaning and office was to put in the placó and stead of a child who should die before the testator, but leave issue surviving, such surviving issue as recipients of the parent’s share, standing collectively in his or her place as one of the children to whom property is given. The general rule is that the death referred to, in the absence of any other named period, is- one in the testators lifetime, Vanderzee v. Slingerland, 103 N. Y., 53; 2 St. Rep., 732, and while the provision made was probably needless in view of the protection afforded by the statute, 2 R. S., 66, § 52. Matter of Wells,. 113 N. Y., 400; 22 St. Rep., 717, that fact will not alter the construction, unless some other, making the clause necessary and effective, should be found to be both a possible one and within the testamentary intention.

I am inclined to think, therefore, that the eighth clause of the will, instead of dictating our conclusion must itself receive interpretation from our final view of the testator’s intention. It is, however, an argument of some force that the clause itself was needless except upon a construction which postponed the vesting until the death of the widow. Granting its force in that respect, we shall see, I think, -that it is more than balanced by other inferences founded upon the language of the same clause and to which I shall later recur.

We come now to the tenth clause, which is the one mainly relied on by the. appellants, and which reads thus: “ After the death of my wife I empower and direct the surviving executors to sell all of my real estate remaining unsold at public or private sale, in fee simple absolute, by deed under seal, at the best possible .price and divide the proceeds equally among my children, share and share alike.” The argument founded upon this provision is that there was an equitable conversion of the land into money at the date of the widow’s death and a gift over at that date of personal property merely; that the legacy given was not to come into existence until the prescribed event; and that the rule applicable is, that where there is no gift except in the direction to divide at a future period time enters into the substance of the gift, and the vesting rather than the enjoyment is postponed.

It is certain that there was no equitable conversion out and out and operating from the death of the testator, and none can be implied at an earlier date than the death of the widow, for none was directed prior to that event. The land, therefore, remained real estate at the death of the testator, unconverted in fact or in equity, so that the remainder in fee descended or passed by the will, and must be accounted for. We have already, seen that it did not go to the executors, whose legal estate was solely for the life of the widow, and was not at all enlarged by powers of sale which themselves conferred no title ; and it seems imperative to say that the remainder passed by descent or devise to the four children who survived the testator, and were identical as heirs and devisees. In either case it passed subject to the trust and the powers of sale, and the appellants’ position must necessarily be that the legal title to one-fourth of the estate which vested in the son Henry M. was defeasible and contingent, and subject to be defeated by his death in the lifetime of the widow, without issue, through the exercise of the power of sale imperatively commanded and the inevitable division of the proceeds among the children surviving the widow. The question thus becomes simply whether the power of sale and distribution of proceeds was a postponement of the time of enjoyment of an estate already vested and merely a plan or- mode of division of such estate among those fully entitled, or a scheme to divest the estate of one or more dying without issue before the widow in favor of those who should survive that event. And thus, while disagreeing with the appellants as to the scope of the legal estate vested in the trustees and pursuing a somewhat different route, we are confronted with, the same substantial question, which has been the pivotal point of the argument, in the form of an inquiry whether Henry M. took an absolute remainder in fee or one contingent upon his survival of the widow and which by his earlier death was defeated so that nothing beneficial could pass to his widow by his will.

O.ne other provision of the will and one contained in a later codicil should first be brought into view as bearing upon a correct conclusion. By the eleventh clause of the will the whole residue and remainder of the testator’s personal estate was given one-third to the widow and two-thirds to the four children absolutely at his death, vesting in them at that date, the designation used being still the one uniform and familiar phrase, “my children.”

The material portion of the codicil reads thus: “ Whereas, I have advanced to my son, John H. Tienlcen, for business purposes since the making of my aforesaid last will and testament the sum of fifteen thousand dollars, which he promises and agrees to refund with interest at five per centum per annum, How, in the event that he fails to pay the "same, I order and direct that the amount of said sum, with interest thereon, which' is n.ot paid at the time of my death, or at the time a division is made of my property as my will directs, shall be deducted from his share and benefit in my property as in my said will mentioned, and if he be dead, to be deducted from the share his issue would receive, and the sum so deducted to be divided between 'my wife and children in manner as in said will mentioned, but excluding' my son John, or his issue, from sharing in the sum so deducted.”

How, taking this will as a whole, in all its parts, and in view of its clear and obvious purposes, we deem it impossible to resist the conviction, which even impressed itself partially upon the surrogate and controlled the conclusion of the general term, that the testator’s intention and design, which he supposed himself to have accomplished, was to vest the whole of his estate in the four children living at his death, with a substitution of their issue for those who should then be dead, but postponing the possession and «enjoyment of the real estate during the life of his wife so far and so far only as to secure for her the necesssry annual income for her support. Whenever and wherever, consistently with the trust for her benefit, it was possible to give to the children an immediate possession without deferring it in the least degree, that possession is given at once and absolutely. In the fourth clause the. entire balance of income, after the annuity to the wife and the current ■expenses of the real estate, is given to the children absolutely and without contingency or delay. Under the discretionary powers •«of sale one-third is invested to produce a trust income for the widow, but the remaining two-thirds escapes from the trust and .goes to the children. Two-thirds of the whole residue of the personal estate is given to them immediately and without postponement because that provision in no manner harms or affects the "trust for the wife, and when that trust ends, everything in equal proportion is to be divided among the children.

In the eighth clause the testator declares that there are in his will “ devises ” to his children. There are none upon the appellants’ construction, only legacies, and those deferred. The word is used early in the will, before the final dispositions, but when "those were in his mind and evidently -contemplated. The word was not used negligently or carelessly, for the phrasing of the will indicates legal intelligence and fitness in technical expression, and we are, therefore, bound to infer that in the thought of the testator there was a devise to his children, which could only have been of the real estate subject to the trust.

It is significant, also, that the distribution in the tenth clause is in terms “ among my children,” share and share alike. It is not .among my surviving children, among those who shall then be living, or among those and the issue of such as shall have previously died, but among “my children,” an expression already many times previously used and- invariably in one definite sense, as meaning the four children living at his death, or represented by their issue, if earlier deceased. The provision, too, is one merely for division and intended not so much to create a right as to sever an existing one. It is quite difficult to conceive that the testator used the words “my children” in an ambulatory, ■changing or ambiguous manner; that in his thought it meant, or might mean, four of them at his death, three of them upon a sale under the fifth clause, two of them at a sale under the sixth ■clause, and one or none at the end of the trust if such deaths .should occur along the line; and that without any specific words of survival or any appropriate provision for the emergencies. It is more reasonable to say that the phrase used in one sense at the beginning and at the end of the will was used in the same sense in the clause of' distribution.

In the eighth clause and in the codicil the testator refers to the •share of a child, the share such child would have had if death had not intervened, and as belonging to or devolving upon the son or daughter at the moment when the will should take effect. "The manner of its use indicates that it referred to a child’s share in the whole estate rather than in some undefined part of it, and when direction is given that John’s debt, if not paid at testator’s: death, shall stand deducted from his share, unless paid before the-final distribution, and giving the wife a part of the deduction,, there is contemplated as existing in John a share in the whole-estate, his share, while the wife is living and before the ultimate-distribution. If the testator had meant merely John’s share in the personal estate he would have said so, since that might have been and possibly was insufficient to cover the debt.

In this connection, recurring as was promised to the phrasing-of the eighth clause, it is worthy of notice that upon either of the suggested constructions it contemplates a share in the whole-estate belonging to a child at the death of the testator and vesting-in him at that date. Upon the construction which we have adopted, of a death in the testator’s lifetime, it substitutes for the-share which a child would have had at that date the same share vesting in his or her issue, and omits any provision for issue upon-the parent’s later death because such issue would take it by inheritance at least. Upon the appellants’ construction, that the death referred to means a death before or after that of-the testator and at any time preceding the death of the widow, it necessarily contemplates a share existing in each child at every moment of the prescribed period, and so as well at the death of the testator as at any succeeding day prior to the decease of the widow.

In the respects discussed, the will very much resembles that upon which we passed in Goebel v. Wolf, 113 N. Y., 405; 23 St. Rep., 176. There as here there was no direct gift of the residue to the children living at testator’s death; there as here there was-a trust for the support of the widow followed by a direction to-divide among the children; there as here the uniform words of designation w.ere “ my children ” without words of survivorship» or terms indicating selection among them ; there as here there was a gift of personalty outright and advances made chargeable as-against the share of a child. We held in that case that the estate subject to the trust vested in the children at the death of the-testator, drawing that conclusion from the collective provisions of the will. I think the inference is quite as strong in the present, case. The provisions of the will indicate a purpose to follow the-legal rules of descent and distribution, modified only by the trust, for the support of the widow. Of the proceeds of the discretionary sales, one-third is held for the widow and two-thirds go to the» children; the personalty is given in the same proportions; the-trust estate is in lieu of dower, and at its close the proceeds go to-the children.

The clause of sale and distribution must therefore be regarded as a direction and authority given for the convenience of division and solely for that purpose. Having no other, it may become unnecessary and the devisees hold and retain the land in its real and actual character. The fiction of an equitable conversion is adopted only where it is a needed element to determine ownership. Equity will not resort to the fiction where the same right devolves upon-the same persons whether the property be treated as money or land, and where no rights of third persons depend npon the .alternative. When we have determined from a view of the whole will that the four children of the testator living at his death took .vested interests in the property, subject only to the prior life estates of the widow and the executors, and subject also to the exercise of the powers of sale, we have rendered the question of an equitable conversion quite immaterial. If the gift was a be-q,uest it vested in the children ‘living at the testator’s death because the fund given was certain to be created, resting upon no doubtful contingency, dependent upon no possible discretion, and sure to exist and devolve in enjoyment at the appointed time.

We have therefore said that the rule of construction founded ■upon'a gift flowing only from a direction to divide has many exceptions and is to be used as an aid to ascertain the intention and not as a force to pervert it. I have observed in general that where at has prevailed it has been where no contrary intention was fairly indicated, and where its own force was somewhat strengthened .and its indication corroborated by further facts. We feel quite .satisfied in the present case that the trust postponed only the period of enjoyment and the sale was intended to conveniently sever the interests of those already entitled.

The judgment of the general term, should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    In the Matter of the Probate of the Will of Samuel Wilcox, Deceased.

      (Court of Appeals,

      Filed March 1, 1892.)

    Will—Probate. .
    The probate of a will was contested-, both on the ground of want of due execution and of the alleged alteration of the instrument after its execution by the testator. The latter issue was not tried, the surrogate refusing to admit it to probate upon the first ground upon the conclusion of the examination of the witnesses to the will. The general term, upon appeal, reversed the decree of the surrogate and directed that the will be admitted to probate. Held, error; that the case should have been remitted to the surrogate to be heard upon the question of the alleged alteration.
    Appeal from judgment of the supreme court, general term, fifth department, reversing decree of surrogate denying probate of the will of Samuel Wilcox, deceased.

      C. D. Kiehl, for app’lt; Walter S. Húbhéll and Eugene Van Voorhis, for resp’t.

       Modifying 37 St. Rep., 463.

   Peckham, J.

Proceedings were commenced before the surrocounty purpose of proving a certain instrument in' writing to be the last will and testament of Samuel Wilcox, deceased.

Citations were duly issued, and some of the next of kin appeared and opposed, the probate of the instrument on the ground that it had not been duly executed, and that it was not the free and unrestrained will of the testator, and that, as the instrument was presented -for probate, it was different from, and not the same paper executed by the testator, and that it had been willfully and. intentionally changed and altered in material parts by parties in interest since the death of the decedent. Upon these issues the parties went to trial before the surrogate. The proponents examined the subscribing witnesses to the will, and they were cross-examined at some length, and both examinations-were confined to-the sole question of the due execution of the instrument. Upon the conclusion of the examination and cross-examination of the-subscribing witnesses the proponents offered the instrument in evidence, and, upon the objection of the contestants that the same-had not been sufficiently proved, the surrogate refused to admit it-to probate, and held that there was a failure of proof as to its due execution. Probate Was refused on that ground alone.

The contestants offered no proof in the case. ISTo one but the-subscribing witnesses had been examined. A ■ decree was ■ there- - upon duly entered refusing probate, and from such decree the-proponents appealed to the general term of the supreme- court. That court held that the evidence of the subscribing witnesses-sufficiently proved the due execution of the will, and thereupon it reversed the decree of the surrogate and directed that the will should be admitted to probate. From the judgment entered upon this order of the general term the next of loin have appealed to-this court

The judgment of the general term recites that the decree of the-surrogate was reversed upon the facts, and the findings of. thcsurrogate were therein disapproved. As there was in the record nothing but the evidence of the two subscribing witnesses, and! neither in any way-contradicted the other, and it was simply a. . question as to what inferences should be drawn from testimony not conflicting, but which did'not, in exact words, prove the due-execution and publication- of the instrument, the case seems to.be-within our decision in the Matter of Hunt, 110 N. Y., 278; 18 St. Rep., 118.

In that case the only testimony was that of the subscribing-witnesses, such testimony not being contradictory, yet not proving- " in exact language the existence of the necessary facts. The surrogate held the testimony not sufficient, while the general term was of a contrary opinion and reversed his decree, and directed, him to admit the will to probate. The judgment of the general term in that case contained the same statement as in this, viz. v that the decree of the surrogate was reversed upon questions of fact. We held that notwithstanding such statement, where it appeared that all the evidence was returned, we" could look at the-case and seeif there were any real conflict, and if not, the general term, in reversing the surrogate, had the power to itself decree the admission of the will to probate where it simply differed.with, the surrogate in regard to the proper inferences to be drawn from evidence not conflicting. A question of fact might possibly arise-upon evidence not conflicting in terms, where inferences might, be drawn either way, and where a decision either way would not be considered as against evidence. But here it does not seem to> us that there is but one fair and legitimate inference properly to-be drawn, and that one in favor of the proof of due execution.

In the proceeding now before us there is, however, another issue which was properly made before the surrogate, and that was. as to the alleged alteration of the instrument .after its execution by the testator. That issue has never been tried. No evidence was given upon it before the surrogate. There was no occasion to do so. The surrogate, upon 'the conclusion of the evidence offered on the part of the proponents upon the question of the due execution of the will, held that its proper execution had not been proved, and upon that ground refused to admit it to probate. There was, therefore, no necessity for the contestants, in-view of a decision in their favor, to ask to be permitted to give-evidence upon another issue. Probate of the will -had been refused, and that was all that the contestants asked or desired. The general term, upon reversing the surrogate’s decree, should, therefore, have remitted the proceedings to him for the trial of the issye as to the alteration of the proposed will after its. execution.

In the case of Dack v. Dack, 84 N. Y., 663, the general term, made a decree similar to the one made here, and this court held that it should have remitted the case to the surrogate to be heard upon the question not theretofore passed upon by him. There is nothing in the Code that we have been referred to which changes-the rule thus laid down in the case of Dack v. Dack, and we think the judgment of the general term should be modified by providing for sending the case back to the surrogate of Monroe-county to try the issue as to the alteration as set up in the contestants’ grounds of contest. The costs should abide the final result in the surrogate’s court and be provided for as he may-think proper.

All concur.


author: Gray, J.

text:
    James Porter, Pl’ff, v. Thomas J. Dunn, Ex’r, Def't.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Decedent’s estate—Husband and wife—Evidence—Code Civ. Pro „ § 829.
    Plaintiff presented a claim against the estate of defendant’s testator for services performed by Ms wife for the testator, which was disputed and referred. Held, that as it was clear that the plaintiff’s wife was acting not for herself, but in the service of, and subordinate to, her husband, in. nursing testator, and so the husband was the proper person to maintain the claim, she was not incompetent, under § 829 of the Code, to testify to the contract or arrangement made for their performance.
    2. Same.
    Testator promised plaintiff’s wife that he would leave her $5,000 in his, will if she would nurse him. She cared for Mm eleven years, and he left her $500. _ The referee found for $7,599 less $500 paid and the general term cut it down to_ the $5,000 promised. Held, error; that the original promise way not carried out; he did give her $500, but that did not conclude plaintiff from claiming the reasonable worth of his wife’s service,
    (Earl, Ch. J., and O’Brien, J., dissent.)

      Appeal from, judgment of the supreme court, general'term, first •department, reversing judgment entered on report of referee, unless plaintiff stipulate to reduce recovery.

      Eugene S. Ives, for pl’ff; W. W. Westervelt, for deft

       Reversing 40 St. Rep., 776.

   Gray, J.

This proceeding was for the determination of a •claim, filed by the plaintiff with the executors of the last will of Patrick H. Kennedy, deceased, for. services rendered by plaintiff’s wife to the testator, in the capacity of a nurse, during a certain period of time previous to his death. It being referred under the .statute, by agreement, the referee reported in favor of the claimant, allowing him for the value of these services at a rate per week based upon evidence as to what such services were usually worth. Upon appeal from an order of the special term confirming the referee’s report and from the judgment entered by the plaintiff, the general term ordered a deduction from the amount .allowed and affirmed the judgment as so modified. Both parties appealed to this court, the plaintiff because of the deduction by the general term ; the defendant, because of the affirmance by the general term of the judgment.

Upon the defendant’s appeal it is argued, with respect to the claim, that it was one which belonged to the wife, by force of the statutes of this state which' regulate the status and the rights •of married women, and was not one which could have accrued to the plaintiff, under the circumstances disclosed. But as to this contention we agree with the general term that, from the evidence, it is clear that the wife of the plaintiff was acting not for herself, but in the service of and subordinate to her husband. 'The deceased rented a room in the plaintiff’s house and boarded in his restaurant. The plaintiff’s wife, while attending to the household duties and helping her husband in his business and being engaged in no occupation separate from that devolving upon her as a wife, also attended upon' the deceased and cared for him as • a nurse. Such services were rendered with the knowledge and assent of the husband. Moneys which were expended in and about her attendance upon the testator were pro•cured from the husband. Finally, she made no personal claim to be compensated for what she had done. These facts and circumstances sufficiently established the right of the husband to prefer- and to maintain the claim. The legislation in this state upon the subject of the rights of .married women has only resulted in abrogating their common law status to the extent set forth in the various statutes. They have not by express provision, nor have they by implication, deprived the husband of his common law right to avail himself of a profit or benefit from her services. It is true she may engage in a separate occupation and labor upon Tier own account and retain to herself the earnings therefrom; -but that was not the case here; nor is there the slightest evidence of "her having elected to labor upon her own account, or to consider herself entitled to the payment for -her services.

As, therefore, the husband did not derive his right to recover against the estate of the deceased, for the compensation due for the services rendered by his wife, through or under her, but was-asserting his common law right, the objection by the defendant to the reception of the testimony of the wife, as to the circumstances of her engagement aa nurse, under § 829 of the Code oí / Civil Procedure, was untenable.

This brings us to the consideration of the plaintiff’s appeal from the deduction by the general term from the amount allowed by the referee. The modification by the general term was stated in the order and judgment to have been made upon questions of law and fact, and we are thus authorized to examine into the evidence given upon the trial in order to discover whether there-were any facts which would warrant the appellate court in so-modifying the judgment below. The result of that examination does not satisfy us that there was evidence of any agreement with, the testator which would conclude plaintiff and prevent his recovering as upon a quantum meruit The facts are few and are-furnished by the testimony of the wife. When the testator became a tenant of the plaintiffs, in -1877, he was suffering from, consumption. Being attacked by a hemorrhage, he called in Mrs, Porter and asked her to take care of him. To quote from her testimony: “ He. asked me himself to nurse him. He told me to-take care of him and that he would give me $5,000 in his will; he said he would give me $5,000 in his will at this time, right in the beginning, the first day.” Again she testified: “I have testified that Mr. Kennedy said he would pay me in his will; he said it six or eight times; I was satisfied to wait until he died and I never thought he would do anything wrong, for he was a gentleman in every way.”

Upon that evidence, for that was practically all which could: be considered to bear upon any arrangement with testator, the: general term deemed the services to have been rendered under an. agreement on the testator’s part and that the sum of $5,000 measured his liability, or that of the estate. The evidence shows that, from December 20, 1877, when the testator came to live with plaintiff, to the time of his death, on ¡November 5, 1888, nearly eleven years, plaintiff’s wife, constantly attended upon him. During the lapse of that period all that appears about any compensation is that from six to ten times the testator said he would pay her, or remember her in his will.

The particular sum of $5,000 seems, only to have been mentioned in the beginning. When his will was read there appeared only a provision for a legacy to her of $500. This the executor paid over to her and, upon the present trial, he opposed the claim, principally, on the ground that plaintiff’s wife, and not plaintiff, was the proper party to maintain it. ¡N"either party seems to have-considered that there was anything which amounted to an agreement limiting the amount of compensation. The plaintiff supported his claim by evidence as to the value of the services rendered ; while the defendant denied his legal right to recover anything, and insisted that his wife had been fully paid by the legacy of $500. The difficulty in the way of sustaining the modification by the general term upon the facts, is in the very absence of facts to support the theory, expressed in their opinion, of an agreement •or obligation limiting a recovery; and there "is actually no other basis for their modification, if we disregard that theory.

The general facts in evidence, upon which the referee based his ■finding, are conflicting and would not warrant either an arbitrary ■deduction by the appellate court, or some other determination by it as to what amount the plaintiff should recover. This was not a case .where distinct or separate items went to make up the allowance, and where the court, in its judgment, might reject some of the items for error of fact or of law, and order a modification •accordingly. There was but the one claim for a continuous service as nurse.' As the referee was supported by the evidence in his finding as. to. its worth, it should not be disturbed arbitrarily. Within the reasoning of the opinion in Whitehead v. Kennedy, 69 N. Y., 462, 468, I think the general term had not the power to determine upon conflicting evidence what amount the plaintiff should recover in this case. Mor has its theory any actual support in the facts. When testator - first called in the services of Sirs. Porter, as a nurse, he said he would give her $5,000 in his will; but upon the subsequent occasions he only said he would remember her in his will. So he did; but not in the sum which "he had first mentioned. This would seem rather to negative any inference of an agreement or understanding as to compensation.

It- may be assumed that Mrs. Porter expected to be well remembered by testator in his will; but that would not conclude the plaintiff -from, claiming the reasonable worth of her services. Mot only was he not a party to any agreement fixing the amount to be paid for the services of his wife, but, in fact, there was no .agreement which the evidence discloses. Mor is the testator's promise to remember her in his will inconsistent with the right of the husband to claim for what her services were worth- The fact ■of the mention by the testator, in his first interview with Mrs. Porter, of an intention to give her $5,000 in his will, is not such .a fact in relation to evidence of value as to authorize this- reductian. He may have spoken in good faith, while Mrs. Porter listened, and believed, and probably .hoped; but where are the ■elements of an agreement'; or how does the promise of a testamentary gift, not performed, operate to -restrict the plaintiff’s right to recover on the value of his wife’s services ? And how •can such a promise tend to prove, or affect, the reasonable value of the services as thereafter rendered? I do not think that any inference can be drawn from the fact of a promised gift by will, except that of a purpose to enlist and to retain the services of the wife and the attentions of the family. -If any other inference ■could be drawn from the facts, upon which the general term might be supported in their modification of the judgment, I should ■strongly incline to it: for I am conscious that the claim is open to very severe criticism. Brought against the estate of the deceased ; allowed to run for nearly eleven years; supported by the :sole testimony of the plaintiiff’s wife, • with no admission of any payments meanwhile; these'are facts which might well create an atmosphere of grave doubt about the honesty of the claim. But these were considerations for the trial court and not such as may be acted upon by us.

The order and judgment of the general term should be reversed and the judgment entered upon the referee’s report shogld be affirmed, with costs in this court.

Finch, Peckham and Maynard, JJ., concur. Earl, Oh. J., and O’Brien, J., dissent, and are for affirmance. Andrews, J., not voting.


author: Earl, Ch. J.

text:
    Margaret Kain, Adm’rx, Resp’t, v. Patrick Larkin et al., App’lts.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Fraudulent conveyance—Evidence.
    It is not sufficient under the statute to condemn a conveyance of land as a fraud upon creditors, that it was not founded on a valuable considera-' tian. The person assailing such a conveyance must go further and show by other evidence that it was made with fraudulent intent. Proof that defendant transferred his money to his wife and gave his real estate to his daughter does not constitute such evidence, where it is not shown that he was thereby rendered insolvent.
    .3. Same.
    The fact that the defendant, a public officer, after the expenses in the action brought by the plaintiff against him for killing her intestate, after lie had been indicted, tried and convicted for the homicide, and had been confined a year in prison, and after he had lost and buried his wife, was fou ;d not to have any property to pay the judgment, is not sufficient evi-, dence that he did not have ample property left to satisfy plaintiff’s claim immediately after giving the deed to his daughter.
    3. Same—Evidence—Supplementary proceedings.
    It is error to allow a witness to give oral evidence of the statements made by a judgment debtor upon proceedings supplementary to execution, where the examination was reduced to writing and signed by the defendant. The written examination is the best evidence. Where the examination is not signed the rule would be otherwise.
    •4. Same—Res gesta.
    Declarations of the grantor made subsequently to the execution of the deed and no part of the res gestos are not competent as against the grantee, while, if properly proved, they would be competent as against the grantor.
    •3. Parent and child.
    A father may emancipate his minor child, even by paroi, and after such emancipation may make contracts with him and become liable to pay him for wages, and services rendered under such an agreement are a valid and adequate consideration for a conveyance of real estate to the child.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in .favor of plaintiff entered on decision of the court.
    In November, 1886, the defendant, Patrick Larkin, then a police officer in the city of Kingston, killed the intestate, David Kain. Thereafter the plaintiff was appointed administratrix of the estate of the deceased, who was lier son; and on the 6th day of January, 1887, she brought an action against Patrick Larkin to recover the pecuniary damages suffered by the next of kin of Per son from his death. At that time Patrick Larkin had on deposit in a savings bank about $1,400, and he owned real estate in the city of Kingston worth $3,000. ' On the 8th day of January, 1887, he drew from the savings bank all his money and redeposited $1,200 thereof in the same bank in the name of his wife, who was then living blit has since died ; and on the 12th day of January, 1887, lie executed and delivered to his brother Michael a mortgage upon the real estate for $3,000. The plaintiff’s action against Patrick Larkin was brought to trial in November, 1887, and resulted in a verdict and judgment in favor of the defendant. The plaintiff appealed from the judgment to the general term, and while that appeal was pending Patrick Larkin executed and delivered a quit claim deed of his real estate to his only child, the defendant, Maria E. Larkin, who was then under the age of twenty-one years. Thereafter on the 27th day of May, 1889, Michael Larkin executed and delivered to his brother Patrick a satisfaction of the mortgage for $3,000 above mentioned.. The consideration recited in the deed to the defendant Maria was in these words: “ In consideration of natural love and affection and the sum of one dollar.” In February, 1890, the judgment in favor of Patrick Larkin was reversed and a new trial was granted. The new trial was had and resulted in a verdict in favor of the plaintiff for $800 damages, besides costs. Patrick Larkin was indicted for the homicide, and w.as convicted and sentenced to prison in 1887, where he remained about a year, when he was pardoned, and released from prison.
    This action was commenced in February/1891, to set aside the deed from Patrick Larkin to his daughter, on the ground that it was executed and delivered to her for the purpose of hindering, delaying and defrauding the creditors of the grantor. The complaint alleges the recovery of the judgment by the plaintiff on the cause of action which accrued on the 21st day of November,. 1886; that the defendant, Patrick Larkin, at that time owned the real estate and had the deposit in the savings bank; that he drew the money from the savings bank, redeposited a portion thereof, executed the mortgage and subsequently ¿onveyed the real estatuas hereinbefore mentioned. The complaint further alleges that the conveyance of the real estate was made to cover up and conceal the right and title therein of Patrick Larkin, and for an inadequate consideration and with the intent to hinder, delay and defraud the plaintiff of her just rights, damages and claims against, him; that the deed was executed for the consideration therein expressed and for the further consideration not written therein, and made orally between the parties thereto at the delivery thereof, to the effect that Maria E. Larkin should take care of and furnish support to Patrick Larkin during his old age. The answer denied the fraud alleged in the complaint, and also that the-deed was without any consideration, or for an inadequate considertion, and alleged, on the contrary, that it was executed in good faith and for a sufficient and valuable consideration. The action was brought to trial and resulted in a judgment in favor of the-plaintiff, which has been affirmed at the general term.

      F. A. Westbrook, for app’lts; G. R. Adams, for resp’t..

       Reversing 43 St. Rep., 571.

   Earl, Ch. J.

There was a fatal defect in the plaintiff’s proof to establish the allegation the complaint that the deed from Patrick Larkin conveying his real estate to his daughter was executed for the purpose of hindering, delaying and demanding his ■creditors.

It is provided in the Revised Statutes, 2 R. S., 137, § 1, that •every conveyance of land made with the intent to hinder, delay or defraud creditors of their lawful, suits, damages, forfeitures, debts or demands, as against the person so hindered, delayed •or defrauded, shall be void; and in § 4 it is provided that the question of fraudulent intent in such a case “shall be ■ deemed a question of fact and not of law; nor shall any conveyance or charge be adjudged fraudulent as against creditors or purchasers solely on the ground that it was not founded on a valuable consideration.” Thus, by the express terms of the statute, it is not sufficient to condemn a conveyance of land as a fraud upon creditors that it was not founded on a valuable consideration. A person assailing such a- conveyance must go further, and .show by other evidence that it was made with the fraudulent intent condemned in the statute. An owner of real estate can make a voluntary settlement thereof upon his wife and children without any consideration, provided he has ample property left to satisfy all the just claims of his creditors. If the grantor remains solvent after the conveyance, and has sufficient property left to satisfy all his just debts, then the conveyance, whatever his intention was, cannot be a fraud upon his existing creditors; and when .•a.judgment creditor assails a conveyance made by the judgment debtor, he cannot cast upon the grantee the onus of showing good faith and of establishing that the • grantor was solvent after the conveyance, by simply showing that the deed was not founded upon a valuable consideration. But the person assailing the deed •assumes the burden of showing that it was executed in bad faith, and that it left the grantor insolvent and without ample property 'to pay his existing' debts and liabilities; and so it has been repeatedly held. Pence v. Croan, 51 Ind., 338; Sherman v. Hogland, 54 id., 578; Whitesel v. Hiney, 62 id., 168; McCole v. Loehr, 79 id., 432; Wilbur v. Fradenburgh, 52 Barb., 480; Dygert v. Remerschnider, 32 N. Y., 637; Holden v. Burnham, 63 id., 74; Bank v. Mead, 92 id., 637. Here there was no allegation in the complaint that the money deposited in the savings bank, and the real estate conveyed by the judgment debtor to his daughter, constituted .substantially all the property he liad, or that he was insolvent at the time of the conveyance, or that he was thereby rendered insolvent And there was no allegation in the complaint that he ■owed any debts, except the liability which he incurred by killing the plaintiff’s intestate.

The trial court found that “ there is no evidence that at the time of giving the deed he was indebted to any pérson, except .so far as his liability to this.plaintiff might be regarded as an indebtedness; ” and that “ it is not shown by the evidence that .at the time of .the execution of said deed, or before, said Patrick Larkin did not have ample and sufficient pecuniary means and. property to pay all claims and.demands against him, including the claim subsequently adjudged by the jury in October, 1890.. But the transfer of his real and personal (if valid), would so dl-' vest him of his property that he had not sufficient to satisfy the-judgment which plaintiff obtained.” By the latter part of this finding the trial judge meant that Larkin at the time of the recovery of the judgment by the plaintiff against him, and the- issuing and return of the execution thereon, which was about eighteen months after he had executed the deed to his daughteiythen did not have sufficient property to satisfy the judgment and execution. But. the fact that the defendant, after the expenses in the action brought, by the plaintiff against him, after he had been indicted, tried and. convicted for the homicide, after he had been confined a year in prison, and after he had lost and buried his wife, was found not to have any property to pay the judgment, is' not sufficient evidence that he did not have ample property left to satisfy the plaintiff’s claim immediately after giving the deed to his daughter on the 1st day of May, 1889, nearly eighteen months before. It was said-in Sherman v. Hogland, supra: “We do not think it. sufficient to charge that some months or years after the conveyance was executed no other property could be found on which to-levy an execution, or that at some subsequent time it was ascertained that the debtor had become wholly insolvent.” In McCole v. Loehr, supra, it was said: “ The. allegation that the grantor-died notoriously insolvent does not make the complaint sufficient.. .The character of a transaction is to be determined by the circumstances surrounding the parties at the time. it took place. The-validity of a conveyance does not depend upon subsequent events.. The question in such cases is the financial condition of the grantor at the time, for. if then solvent, his subsequent insolvency will not invalidate the conveyance.” And in Whitesel v. Hiney, supra , it was said that showing the financial condition 'of the grantor-fifteen months after the conveyance was insufficient.

In Pence v. Croan, supra, it was said : “We cannot think that, when such a party has shown that the conveyance was made without a valuable consideration, the-grantee must then assume the onus of proving that the deed was made in good faith, by-showing that the grantor had other means with which to pay his debts, or some other fact to rebut an inference of fraud. Such. a. rule would be in effect to abrogate the statute and entitle the-party attacking the conveyance to have it set aside by showing-merely that it was not founded-upon a valuable consideration,, which the statute prohibits.”

Our opinion, therefore, is that upon the allegations in the complaint and the proofs upon the trial and the findings of the trial judge, the plaintiff could not successfully assail this deed.' It is-quite probable that Patrick Larkin did divest him'self of all his property by the disposition made of his deposit in the savings bank and the-conveyance of his real" estate. But that should not be left to mere inference. If true it is capable of proof, and the-plaintiff, who comes into court alleging fraud and assailing the. deed therefor,, should furnish the proof.

Upon the trial but four witnesses were sworn, two of whom, testified, only to the value of the real estate. A witness by the name of Frederick Stephan was sworn on behalf of the plaintiff .and testified that he was the referee appointed to take the examination of Patrick Larkin in supplementary proceedings instituted against him by this plaintiff after her execution had been returned unsatisfied upon her judgment against him. It appeared that Stephan in pursuance of the order of the court had taken Larkin’s examination ; had reduced it to writing and read it over to him, and that Larkin then subscribed it; that after it was thus subscribed it was delivered by Stephan to the plaintiff’s attorney for further proceedings thereon by him.

Upon this trial, for the purpose of proving the statements made by Larkin as to the purpose for which he gave the deed of the land to his daughter, and the circumstances attending the execution and delivery of the deed, and the consideration upon which it was executed, the plaintiff called Stephan, and he was asked to state orally what Patrick Larkin had testified to upon the examination, which had thus been reduced to writing and signed by him.. The defendant Maria Larkin objected that the evidence was not competent as against her, and both defendants objected to the evidence as incompetent on the ground that it was secondary, and that the examination which was then in the possession of the witness should be produced and put in evidence for the purpose of showing the statements made by Larkin on 'that examination. The trial judge overruled the objections, and while he held that the evidence was not competent, and that he would not receive it as against Maria Larkin, he held that it was competent as against the defendant Patrick Larkin, and he decided that it was not necessary to prove those statements by putting in evidence the ■examination as reduced to writing and signed. There can be no question that it was erroneous to permit the witness to give oral evidence of the statements made by Patrick Larkin upon that examination. The examination had been purposely reduced to writing, and was required to be, that it might be subsequently reported to the judge who appointed the referee, and be used in .any further proceeding which the plaintiff might base thereon. That it might be accurate and reliable for any subsequent use it was read over to Larkin, and he subscribed it, thus verifying it by his signature. Thereafter the written examination thus subscribed was the best evidence of the statements wdiich it contained. If Larkin had after that examination been indicted for perjury for making a false statement in answer to questions put to him at that time, it cannot be'doubted that he could have made a successful defense to the indictment by showing that the alleged false answers were not contained in the examination as reduced to writing and subscribed by him.

After the examination had been read over to and subscribed by him it constituted the whole of the examination, and no statements made by him and not contained therein would be any part thereof. If he had been examined and his examination reduced ' to writing and not subscribed by him, undoubtedly any person who heard his examination could testify to any statements made by him, and such written examination would not be the primary evidence. So any person who hears a witness testify upon a trial, although the evidence is taken down by a stenographer, may undoubtedly testify to statements made -by- the witness. But where-the examination is reduced to writing and read over to and subscribed by the witness for the purpose of making an accurate and reliable record of the evidence given by him, then the examination thus subscribed is the primary evidence, and it would violate-the fundamental rules of evidence to permit witnesses to be called and give from their memory evidence of statements thus made. If the statements which the plaintiff proved by Stephan had been contained in a letter written by Larlcin, every one would admit that oral evidence could not be given of the contents of the letter, but that the letter, if it could be found and produced, would be the primary evidence, and would have to be resorted to to prove its contents. This evidence violated the rule which requires a party to produce.the best evidence of which the case in its nature is susceptible. The rule is intended to prevent fraud and mistake, and is essential to the pure administration of justice. It forbids the introduction of substitutionary or secondary evidence when the original or primary evidence can be had. Where statements-are formally reduced to writing for the express purpose of making a record of them and they are subscribed by the parties, the-writing thus subscribed is the primary evidence, and when it is in the possession of a party or can be produced, it alone furnishes the competent evidence of its contents. In Vincent v. Cole, 1 M. & M., 258, Lord Tenterden said: “ I have always acted most strictly on the rule that what is in writing shall only be proved by the writing itself. My experience has taught me the danger of relying on the recollection of witnesses, however honest, as to-the contents of written instruments. They may be so easily mistaken that I think the purposes of justice require the strict enforcement of the rule.”

In People v. Hinchman, 75 Mich., 587, the defendant was examined before a justice of the peace, who held him for trial at the circuit. His examination was taken under oath before-the justice and reduced to writing, and was filed. Upon his subsequent trial at the circuit his examination was presented in-court, and the court admitted the oral testimony of the complaining witness as to what Hinchman testified to before the-committing magistrate as admissions made by him in the case; and it was held that that was error. The learned judge writing the opinion said: “ There was no claim made that the written deposition did not contain all the testimony given by the defendant on the examination. The written deposition was the-best evidence of what Hinchman testified to, and when it appeared that it was present in court it was the only admissible evidence-of that fact. And it did not cure the error for the prosecutor to say that it was present and he could read from the deposition' if counsel desired. It was sufficient for the counsel to object to the-Introduction of the improper testimony, and he.was not obliged to express his desire to have the deposition read." Further illustrations of the rule which condemns this oral evidence will be found in Hamilton v. People, 29 Mich., 195; Newcomb v. Griswold, 24 N. Y., 298; White v. Price, 108 id., 661; 13 St. Rep., 696.

The trial judge very properly held that the declarations of the grantor made subsequently to the execution of the deed, and no part of the res gestee, were not competent as against the grantee, while if properly proved they would, be competent as against him. Every fact which it is necessary for the plaintiff in such a case to establish in order to set aside the deed must be established by evidence competent as against the grantee, and the mere declarations of the grantor are not competent to establish any fact as against the grantee. And so we have uniformly held. Cuyler v. McCartney, 40 N. Y., 221.

We think we can see in the findings of the trial judge that while he ruled that these declarations of the grantor were not competent as against the grantee, he allowed them some influence in his findings of fact upon which his judgment was based.

The defendant Patrick Larkin was twice married. His first wife was the mother of Maria E. Larkin. Maria, as a witness on her own behalf, testified that subsequently to the death of her mother her father frequently promised that she should have this real estate, and that he gave her her time, and said to her that her wages should be her own. She thereafter earned money as a dress maker, and contributed to the support of the family, consisting of her father, her step-mother and herself. After her father had committed the homicide she went to Hew York and engaged in dress making there, and while there her father requested her to come home and take care of her step-mother, who was then sick, and promised that she should have a conveyance of the real estate ; and she came home and took care of her step-mother and contributed largely to the expense of keeping up the household. According to her evidence, in consideration of her contributions to the support of her father’s family, he frequently promised that she should have this real estate ; and she testified that it was in pursuance of that agreement that he conveyed it to her. Upon this evidence of Maria, among the conclusions of law made by the trial judge, we find the following: “ That in so far as said deed was given for the services of the defendant Maria E. Larkin, rendered for her father in his family while a minor, the same were an inadequate consideration therefor as against this plaintiff, as such services belonged to her father.” If the learned judge meant to hold, and did hold, that Larkin could not make an agreement with his minor daughter to compensate her for her services, and that services rendered under such an agreement could not be a valid and adequate consideration for a conveyance of real estate to her, he erred, because it .is the undoubted rule of law in this state that a father may emancipate bis minor child, even by paroi, and after such emancipation may make contracts with him and become liable to pay him for wages, and after such emancipation the child -has the right to his own wages, the disposition of his own time, and, in-a great measure, the control of his own person. In Schouler’s Domestic Relations, 3d ed., § 268, it is said: “ The-minor who is -released from his father’s service stands as to his-contracts for labor, either with -strangers or with him, upon the same footing as if he had arrived at full age; and such being the case, the father may himself contract to employ and pay the child for his services, and be bound in consequence like any stranger tofulfil his agreement.” And the text is sustained by ample-authority.

We have, therefore, reached the conclusion on the whole case that the ends of justice require that this action should be tried again, and that the rules of law which we have herein referred to should be properly applied and enforced.

The judgment0should, therefore, be reversed and anew trial granted, costs to abide event.

All concur.