179 A.D. 112 | N.Y. App. Div. | 1917
The action was brought by the Central Trust Company of New York, as trustee under the last will and testament of Mary Eliza Dewey, deceased, for the construction of the will and to settle and adjust its accounts as such trustee and to adjust and determine the rights of the various defendants in the balance of the trust fund remaining in the possession of the trustee.
The testatrix died on March 25, 1888, leaving a last will and testament dated March 31, 1886, which was admitted to probate in the county of New York.
Among other things the will provides that certain securities specified therein amounting to $100,000 at par, belonging to. the testatrix, be delivered to and held by the plaintiff in trust for the benefit of her two sons, William Pierce Dewey and Eugene Edwin Dewey, in equal proportions and that out of said fund and the income therefrom the plaintiff pay to each of her said sons the sum of $4,000 per annum in quarterly
Eugene Edwin Dewey died June 26, 1891, without issue. William Pierce Dewey thereafter received from plaintiff the sum of $8,000 per annum.
On or about November 7, 1904, William Pierce Dewey executed and delivered to the New York Finance Company an alleged assignment by which in consideration of $20,320, he purports to assign to it, its successors, etc., a full one-half portion of all his right, title and interest in and to the estate held for his benefit by the Central Trust Company of New York under the will of his mother and agreed that a certain will which was made by him concurrently therewith should be irrevocable. The will referred to was made on the same day and purported to bequeath to the New York Finance Company a full one-half share of any balance of the estate that might remain in the hands of the trustee at the time of his death. William Pierce Dewey thus attempted to exercise his power of appointment derived from his mother’s will in favor of the New York Finance Company. At the same time Selina Lucille Dewey, the wife of William Pierce Dewey, executed and delivered to the New York Finance Company an agreement in which, after reciting that the agreement was made in order to induce the said New York Finance Company to purchase the interest, she undertook and agreed “to do any and all things possible to expedite the collection thereof * * * and to execute and deliver any and all instruments
Thereafter and on or about November 21, 1905, a precisely similar transaction was consummated between the said William P. Dewey, Selina L. Dewey, his wife, and the defendant John M. Ward, by which Ward claims in the same way to have purchased Dewey’s remaining one-half interest in his mother’s estate.
On or about December 9, 1913, William P. Dewey died without issue, a resident of the city of Los Angeles, Cal., leaving a last will dated February 22, 1913, and duly probated January 5, 1914. This will gives to his wife, Selina L. Dewey, all the property held in trust by the Central Trust Company which under his mother’s will he was empowered to bequeath, thus exercising the power of appointment in his wife’s favor. Letters testamentary were issued to Selina L. Dewey.
Thereafter the defendant Ward made claim to one-half, the defendant Wood’s executors to one-quarter, and defendant Banes, as trustee, to one-quarter of the fund remaining in the hands of the trustee, and Selina L. Dewey made claim to the whole by virtue of the power of appointment exercised under her husband’s will. The claims of Wood’s executors and of Banes rest upon assignments made by the New York Finance Company.
Thereupon plaintiff brought this action to determine the rights of the parties.
The court at Special Term has decided that the assignments and other documents delivered to the New York Finance Company and John M. Ward by William P. Dewey were valid and enforcible only to the extent of the life interest of William P. Dewey. In thus deciding the court was undoubtedly right.
The court, however, found that the agreements made by Dewey’s wife alleged to be confirmatory of her husband’s contracts, etc., preclude her from taking any interest under her husband’s will, given to her by his exercise of the power of appointment derived from his mother’s will.
In its 12th conclusion of law the court decides that the confirmatory agreements of the wife of William P. Dewey preclude her from taking any benefit under the power of
The court then directs the distribution of the property which passed by appointment to the wife among the claimants to the exclusion of the wife. An examination of the instruments signed by the wife will disclose that they have no reference to the corpus of the estate, the income of which was to be paid her husband and that the court has wrongly construed it. Those instruments purport to confirm the transfer and sale only of the interest then owned by William P. Dewey, that is, a life interest, and Mrs. Dewey agrees therein to execute whatever instrument may be necessary to confirm the vesting of that particular interest only. It follows that her interest in the estate as given to her by her husband’s will is not affected by her agreements. But assuming that the appellant executed the agreements for the purpose of assuring to the assignees the ultimate possession of the corpus of the estate in accordance with Dewey’s will.in their favor, we arrive at the same result. The agreements of Mrs. Dewey were executed as part of the transactions between Dewey and his assignees. Those transactions, so far as they relate to the will made in favor of those assignees, are illegal and not enforcible. (Farmers’ Loan & Trust Co. v. Mortimer, 219 N. Y. 290.) The vice that makes .them unenforcible would be present also in the agreements of Mrs. Dewey. (Dewitt v. Brisbane, 16 N. Y. 508; Sirkin v. Fourteenth Street Store, 124 App. Div. 384; Wyeth v. Braniff, 84 N. Y. 627; Woodworth v. Bennett, 43 id. 273.) To enforce them would be to accomplish the manifestly illegal purpose of thwarting the
The judgment so far as appealed from is reversed and the judgment as entered modified in accordance with this opinion, with costs to the appellant and to the plaintiff, respondent, against the defendants, respondents; the order to be entered hereon specifying the findings reversed and with appropriate new findings, to be settled on notice.
Clarke, P. J., Scott, Dowling and Page, JJ., concurred.
Judgment so far as appealed from reversed, and judgment as entered modified in accordance with opinion, with costs to appellant and to plaintiff, respondent, against the defendants, respondents. Order to be settled on notice.