105 N.Y.S. 1079 | N.Y. Sup. Ct. | 1907
Action to set aside assignment, bill of sale, mortgage, and bond, and to have a transaction appearing on the face of the instruments as an absolute sale declared to be a loan. The action is brought for the purpose of having declared fraudulent, usurious, and void an assignment, bill of sale, bond, and mortgage by which the sum of $12,000 is transferred and secured by the plaintiff Heise to the defendant. Although the relief prayed for in the complaint is of the character just stated, it is nevertheless said in the brief that the plaintiffs propose and are ready, upon the cancellation and surrender of these obligations, to repay to the defendant, with interest, the amounts actually received by the plaintiff Heise in, the transaction.
The facts in the case necessary to be stated are as follows: The plaintiff Heise is the beneficiary under the will of her father, Edwin R. Hearne, who died March 11, 1899, leaving a will, by the terms of which, after the payment of certain bequests, the residue of his estate, both real and personal, was left to his two brothers in trust to divide the income thereof among his four daughters, of whom the plaintiff Heise is one, for a period of 10 years succeeding his death, and at the end of that time, to wit, on March 11, 1909, to divide the principal, with the provision that if any of his daughters should die before such date her.1 share should go to her issue, or in default of such issue to her surviving sisters. The estate consisted of real property of the value of about $100,000, besides stocks and other securities amounting approximately in value to $300,000. The share of the plaintiff Heise of the income has been each }rear from $6,000 to $9,000. The trustees of the estate are exempt by the provisions of the will from giving bonds, but are men of wealth and high character. The assignment to the defendant, which was made on the 28th day of March, 1905, is expressly subject to prior assignments of $13,000 to the Eagle Insurance Company of London, made in February, 1904, and of $7,550 to the same company made in October of that year, and an assignment of $12,000 made to Julius Nahm in February, 1905, making an aggregate charge prior to the interest of the defendant of $32,500. The assignments to the Eagle Insurance Company of London were negotiated through the firm of Jenner & Co. of this city, and no claim is made of any intimacy
When examined, however, these various points are found to have little force. The contingency of the death of the plaintiff Heise before the expiration of the trust term was guarded against by insurance policies duly assigned to the defendant. The trustees, although nonresidents and not under bonds, arc experienced and successful business men of high character and of wealth, and the value of the estate, taken as a whole, was such that there could never have been any serious question but that the plaintiff’s share would be much more than sufficient to cover the assignment in question, together with all previous
Upon all the facts I am of the opinion that the plaintiffs are entitled to- judgment as prayed for, but only on condition that they repay to the defendant the sum of $2,100, the amount agreed upon and received by the plaintiff Heise, with interest thereon, and also the amount paid for the insurance policy taken as collateral security for the loan, with interest on such premium, upon a proper reassignment of such policy from the defendant to the plaintiffs. If the defendant’s counsel thinks any other conditions should be imposed, suggestions to that end will be considered upon the settlement of the decision, of which let five days’ notice be given.