20 Barb. 141 | N.Y. Sup. Ct. | 1855
Lead Opinion
Charles P. Cornwall, now deceased, made a general aasignment, dated 25th of July, 1838, to Thomas Whit-son, deceased, and John Nostrand, in trust to sell and convey so much real estate as should be sufficient to pay his debts, and to lease any part of the land, and apply the rents and profits to his support during life. Cornwall tos infirm, and in debt; and being incapable from bad health of attending efficiently to his affairs, he placed his property under the control of two neighbors,. Whitson and Nostrand, who seem to have been actuated by kind and disinterested motives in accepting this trust. The land which was assigned consisted of several tracts in Queens county; -that called “ the Bayside Farm,” was the most valuable—its value considerably exceeding the whole indebtedness of Cornwall.
The trustees made efforts to sell other portions of the estate; but, notwithstanding strenuous and faithful exertions, they failed in this attempt; and, at last, having received an offer from Samuel Willetts, of the city of New York, a man of wealth and high credit, for the Bayside Farm, for the sum of $15,000, they sold it to him for this sum. This was done with the full knowledge and consent of Cornwall. The trustees executed a deed to Willetts about the 23d of November, 1838, in which Cornwall joined. Willetts did not then pay any part of the purchase money, but gave to the trustees his personal obligation, without security, to pay the amount on the 1st of April, 1840, or on the 1st of April, 1839, in case possession of the premises
Cornwall died on the 4th of February, 1839 ; and soon after his death, the trustees delivered over to Benjamin W. Strong, his executor, the security in question without an assignment in writing. Ho interest money on this security was in arrear at this time; and, after it came into the hands of the executor, it continued to be regularly paid; until the 1st of May, 1841, some time after the principal became due. After this time no interest was paid on this or the prior mortgage, until the foreclosure of the latter in 1844. Strong, the executor, took no measures to enforce the payment of the interest or the principal. After satisfying the first mortgage, the surplus remaining was $4936.84, which Strong as executor applied for and obtained upon thé bond and mortgage of Hall to the trustees, leaving due for principal and interest, the sum of $2502.73, for which a de
This action is brought to recover the deficiency, from the trustees. Have they been guilty of any dereliction of duty either in selling the property, or in lending the money to Hall 1 This may be considered rather an agency, than a trust in the ordinary or technical sense. The fiduciary estates, for which the stringent rules of courts of equity have been particularly intended, and to which their vigilance has been directed, are not those in which the grantor and cestui que trust are one and the same person, retaining and exercising control over the property. In the present case the grantor, at all events, at any time after the payment-of the debts, could revoke the authority of the trustees, and rescind the conveyance, as to its prospective effect. Indeed this instrument differs, practically, very little, if at all, from a power of attorney, executed by a person in the place where the duties of the attorney are to be performed, and where the property is situated. Temporary convenience seemed to be the motive of the grantor in executing this instrument; he was infirm physically, necessarily confined to his house; and two of his friends, immediate neighbours, kindly undertook to manage his affairs, for the purpose of extricating his property from debt, and relieving his mind from anxiety and trouble. Ho other motive whatever seems to have influenced the minds of any of the parties to this instrument. If it can be called a trust in the technical sense, there was no cestui que trust but Mr. Cornwall himself. He was, no doubt, a man of intemperate habits; and his mind like that of every person who is addicted to such habits, was to some extent impaired; but not in such a degree, as to render him incapable of comprehending his own interest, and of deciding, as correctly as the generality of men, upon the subjects in delation to which he was consulted by the trustees. His preference for farms, over city property, differs from the opinion of most well informed and shrewd capitalists ; but, it may, nevertheless, be well doubted, whether a farm, situated in a populous neighborhood and near several great thoroughfares, is not safer for a permanent investment than any
Some portion of the evidence undoubtedly shows that Cornwall was a man of “ low mental capacity;” but this does not prove that his assent tó the acts of the trustees was not given freely and intelligently. He died on the 4th of February, 1839; Haughworth lived with him for four months previous to and until his death; and he states, positively, that “ Cornwall could converse with Mr. Miller or any body else, as well as any person, before his last illness.” The investment was made in Nov. 1838. But even if his mental feebleness may be deemed so great as to leave him at the mercy of every designing person, did the trustees, in fact, take advantage of his weakness, and for any sinister purpose of their own or of others, betray the confidence which he had reposed in them ? I cannot find a particle of evidence to warrant any conclusion of this kind. I cannot even perceive that there was any thing equivocal in their conduct; nor can I find any proof of such neglect or mismanagement as to warrant this court in making them responsible for any deterioration in the security, in which a part of the purchase money of Bayside Farm was invested. I do not think that we could do' so without a palpable violation of all equitable principles, even if they were trustees in the most technical sense, and they were acting for married women, or infants, or persons totally incapable of judging for themselves. It cannot be expected from trustees, that"|hey are to act upon principles different from those which actuate cautious and prudent men in the transaction of their own affairs. Otherwise, the office of
The report of the referee should be set aside, and the judgment reversed, with costs.
Concurrence Opinion
I concur in the opinion that the judgment should be reversed. Upon the facts the defendants should have had judgment; and as all the facts in the case are evidently before the court, there can be no good reason, as far as I can perceive, for sending the parties again before- the referee.
The clerk will enter an order reversing the judgment, with costs.
Mitchell, P. J. concurred.
Judgment reversed.
Mitchell, Clerke and Cowles, Justices.]