144 N.Y.S. 457 | N.Y. App. Div. | 1913
On November 23, 1899, Jane M. Sands, then past seventy years of age, signed a paper writing and delivered the same to Mary F. Ga Nun, the plaintiff in this action. It was in the form following:
“I, Mary F. Ga Nun, do promise to care for Jane M. Sands in sickness and health as long as she lives. I, Jane M. Sands do promise to pay Mary F. Ga Nun Seventy dollars a month for the support of the house and her clothes as long as I live, and at my death she is to have Twenty thousand dollars that she will find in the Safe Deposit in New York and she is to take
From that date for a period of about six months, and until May 1, 1900, plaintiff did care for Miss Sands, and was able and willing to continue so to do. Notwithstanding this, on the latter date Miss Sands left plaintiff’s house and went to reside with defendant until her death, which occurred on the 16th of August, 1906. At the time of the making of said instrument, and for some time prior thereto, Miss Sands had a box in the New York Safe Deposit Company. On November 20, 1900, she relinquished it, and there is no evidence that thereafter she ever secured a box elsewhere. Neither is there any evidence as to its contents, either at the date of the signing of the instrument or at the date of its surrender, but at the time of her death Miss Sands did not have $20,000 or any other property in any “ Safe Depositin New York,” or elsewhere, nor any box in any safe deposit company. Prior to her death she had conveyed away all of her property except a trifling amount not exceeding in value about $100.
Plaintiff asserts that the instrument above referred to constitutes an absolute agreement upon the part of the maker to pay her the sum of $20,000 upon her death, in consideration of care to be furnished to her. Asserting that she is a creditor of her estate to that extent, she brings this action in behalf of herself and all other creditors of said Jane M. Sands against defendant in her capacity as executrix of her will, and also individually, first, to establish the indebtedness of said estate to her, and, second, to set aside certain conveyances of personal property alleged to have been made by Jane M. Sands to said defendant in fraud of creditors, and to impress a trust upon certain real property alleged to have been purchased by defendant with the proceeds of personal property thus fraudulently secured,
The learned court at Special Term has found that plaintiff is a creditor of the estate of Jane M. Sands to the extent of $20,000, with interest thereon from August 16, 1906, and that she is entitled to judgment setting aside certain conveyances of personal property and impressing a trust upon the real estate.
Upon a previous trial of this action the learned court at Spe
The learned counsel for respondent contends that upon the previous appeal the Court of Appeals must have held that this portion of the instrument was contractual, since otherwise it would have affirmed the judgment dismissing plaintiff’s complaint. We do not so construe the decision, and deem ourselves warned by the language of the opinion that the court considered this question an open one. We must, therefore, at the threshold of this case determine it, for if plaintiff is not a creditor she cannot maintain this action. (Pers. Prop. Law [Con-sol. Laws, chap. 41; Laws of 1909, chap. 45], § 19; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 268.)
We think that the contractual part of the instrument under consideration was limited to an obligation upon the part of plaintiff to care for Miss Sands “in sickness and health” as long as she lived, and to an obligation upon the part of the latter to pay her seventy dollars a month therefor, and that the remaining provisions of said instrument are testamentary in character. Whether it is sufficient as a will, if the property had still remained in the safe deposit box, it is not now essential to determine. The important question is as to the nature of this clause of the instrument, whether this sum was to be paid for the care “in sickness and health ” which plaintiff was to give to decedent, or whether this was already provided for by the preceding clauses of the same instrument, and this provision for the payment of $20,000 was in the nature of a gift, the
Treating the clause beginning with the words “and at my death ” separate and distinct from that which precedes, it would seem clear that such is-the character of this disposition. The preceding words, taken in connection with the established facts in the case, tend to strengthen rather than detract from this impression. For six months, namely, from the first of November until the first of May, the sum of twenty-five dollars a month was paid as rent for the apartment where plaintiff and decedent resided. It also appeared that previous to going to live with plaintiff, Miss Sands paid six dollars a week for her
It is true that in speaking of this instrument, as to the contents of which Miss Sands seemed to have been ignorant until a copy thereof was sent to her a short time before the settlement above referred to and after she had ceased to reside with plaintiff, both she, and on other occasions the defendant also, speaking of the instrument as a whole, referred to it as a contract. Mistaken terminology.cannot establish legal rights. Color is further lent to the theory that this disposition of $20,000 was testamentary in character by the fact that, as part of the same clause of the same instrument, plaintiff was made the agent of Miss Sands after her death to deliver a portion of her property to others, which clearly is in the nature of a posthumous disposition thereof. Finally, the provision that “ all my clothing and wearing apparel and silver (in short) everything
It may not he amiss, however, to remark in conclusion that, even if the action would lie, it is doubtful if the evidence sustains the findings of resulting insolvency from such conveyances as were made to defendant, or that such conveyances were entirely voluntary. It does appear that within a short time after Miss Sands went to live with defendant she ceased to pay hoard, and that thereafter defendant did provide and care for her for nearly or quite six years; that during the later months of her life she provided her with a nurse, which her condition then made necessary, and that defendant herself paid the funeral expenses, exceeding in amount the sum of $500, although it is admitted that she did receive funds from Miss Sands to enable her to make the payments last referred to. Neither is there any evidence that by reason of the transfers which the learned court at Special Term has found were made to defendant, if the evidence sustained such findings, Miss Sands thereby became insolvent. We fail to discover any evidence as to the amount or value of Miss Sands’ property at the time when the promise to give plaintiff $20,000 was made,
Where, as it appears in this case, plaintiff has been fully compensated for all of the services which she actually rendered, a court of equity should not feel called upon by a strained construction of an instrument in the handwriting of the person claiming benefits under it, or by a strained construction of the evidence, to award the plaintiff the sum of $20,000 for no services whatsoever.
The judgment appealed from should be reversed upon questions of fact as well as of law, and as the action cannot be maintained, judgment should be directed dismissing the complaint, with costs.
Jenks, P. J., Rich and Stapleton, JJ., concurred; Thomas, J., concurred in result.
Judgment reversed upon questions of fact as well as of law, and judgment directed in favor of the defendant dismissing the complaint, with costs of the action and of this appeal. Order to be settled before Mr. Justice Burr.