9 N.Y.S. 145 | N.Y. Sup. Ct. | 1890
Lead Opinion
On the 2d January, 1884, Peleg IC. Graves, then a resident of Ellisburgh, in the county of Jefferson, died leaving, him surviving, his widow, Jennette Graves, and, as his only heirs at law, five children, of whom the plaintiff is one. On the 1st January, 1884, he made a will, in due form, in and by which he gave all his property, real and personal, to his wife, Jennette, absolutely, and appointed her executrix with full power of sale. This will was admitted to probate on the 18th January, 1884. The real estate consisted of four farms, one of which was called the “Home Farm,” and is in controversy in this action. There was also personal property about sufficient to pay the debts. About the 4th March, 1886, Jennette Graves, as the court below found, executed and delivered, individually, deeds of all the real estate except the home farm to the heirs of Peleg K. in equal shares, taking into account, and charging each, such advances as the testator had made to them, severally, in his life-time. On the 7th August, 1886, Jennette died, having on the 10th June, 1886, subscribed a paper purporting to be her last will and testament, sealed and attested by two subscribing witnesses, in form as required by the statute for the execution of wills, and which instrument imports on its face to be a legal and valid will of real and personal estate. By this will, Jennette Graves gave to the defendant Lula Graves, her grandchild, the home farm, above referred to; and the balance of her property she gave in equal shares, to the five children of herself and said Peleg K. Lula Graves is an infant under the age of 14 years, and the daughter of the defendant Charles Graves. The claim of the plaintiff is that Peleg K. Graves, before lie
In Re O'Hara, 95 N. Y. 403, it was held that where a person, even by silent acquiescence, encourages a testator to make a devise or bequest to him with a declared expectation that he will apply it for the benefit of others, this has the force and effect of an express promise so to apply it, as, if he does not intend so to do, the silent acquiescence is a fraud; and, in case of such a declared intention and promise, if the testator has named some certain and definite beneficiary, capable of taking the provision intended, the law fastens upon the devisee or legatee a trust which equity, in case of his refusal to perform, will enforce on the ground of fraud. In such a case, it is said, (page 413,) equity acts, not because of a trust declared by the testator, but because of the fraud of the legatee. For him not to carry out the promise by which alone he procured the devise and bequest, is to perpetrate a fraud upon the devisor which equity will not endure. The statute of frauds and of wills are not in the way, for the devise is untouched. The property passes under it, but the law deals with the holder for his fraud, and out of the facts raises a trust ex maleficio, instead of resting upon one created by the testator. The fraud which justifies the equitable interference consists in the attempt to take advantage of that which has been done in performance or upon the faith of the agreement, while repudiating its obligation under cover of the statute. The facts should be proved beyond reasonable question. Id. 420. See, also, Gilpatrick v. Glidden, 81 Me. 137,
The testimony of the attorney was objected to by the defendants as being within the prohibition of section 835 of the Code of Civil Procedure. As the evidence was received and considered by the court, the objection is not available here to the respondents. We must assume the testimony properly received.
The attorney testified that after the will was written, and before it was signed, there was an interview between Mr. Graves and his wife, in which he said he was very sick; that “he desired to make an equal distribution of
The declarations of Mrs. Graves were competent evidence, not only to corroborate Mr. Ramsdell, but to show what the arrangement in fact was. The testimony as to the declarations is not contradicted. The witnesses were not interested, and there are no circumstances that seriously impair the testimony, or render it improbable. Kavanagh v. Wilson, 70 N. Y. 179. No evidence was given on the part of the defendants.
As the case stands before us, and giving proper effect to the acts of the parties on the partial division, I am of the opinion that the proofs established, beyond a reasonable question, that the devise in question was made upon the request of Mr. Graves to his wife to divide the same, at or before her death, equally between their children, and her promise to him to do so. This conclusion would call for a reversal of the judgment.
In explanation of the statement made by the witness Ramsdell at the time of the compromise and settlement of the judgment against Silas Graves, the plaintiff offered to show by the witness that the settlement was upon the voluntary offer of the holder of the judgment, previously made. This was objected to by the defendants, and excluded, and plaintiffs excepted. This exception was well taken. The explanation was competent and material; for, if the statement was only casual, and not by way of inducing a settlement of the judgment, its bearing upon the credibility of the witness would be quite different from what it would be if made to induce a compromise, and at a time when the actual situation was important to be known. Standing alone, this exception might not be of sufficient importance to call for a reversal; but it should be considered, in view of the other aspects of the case. The evidence of the witness- was very important, and it was claimed that his subsequent statements impaired his credibility. The circumstances under which the statement was made should have been received. Judgment reversed upon the exceptions, and new trial ordered; costs of appeal to abide the event.
Concurrence Opinion
I concur in that part of the opinion of Merwin, J„ which points out the error in refusing the offer by the plaintiff to show bv the witness Ramsdell that the settlement of the judgment against Silas Graves was made upon the voluntary offer of the holder of the judgment, previously made; and, by reason of that error, I think a new trial should be granted. The questions of fact involved in the case are very important, and the evidence of Ramsdell is vital upon the principal and pivotal question. Because the principal question of fact has been once passed upon by a trial judge, a new trial before a jury, upon issues settled, would perhaps be more satisfactory. These views lead me to concur in the result, and join Merwin, J., favoring a reversal of the judgment now before us. The judgment should be reversed on the exceptions, and a new trial ordered, with costs to abide the event.
Concurrence Opinion
I concur in result on ground stated in memorandum of Hardin, P. J.