22 N.Y.S. 978 | N.Y. Sup. Ct. | 1893
The decree of the surrogate, of February 6, 1861, entered upon the accounting of the executor, finally settled and disposed of the personal estate .of the testator. This was expressly conceded upon the argument, and such was doubtless the effect of the decree. That being so, there remained only the real estate, and the rents, issues, and proceeds thereof, to be accounted for. The first transaction, after the settlement of the personal estate, disclosed by the record, is the deed of Charles Lang to Conrad Schumacher, dated December 20, 1862, in which Lang conveys all of his estate, title, and interest in the real estate left by the testator. As the devisee and legatee of his deceased wife, he had become vested with all of the right, title, and interest that she had in the estate of her deceased father. Under the will, Ledrich had given the real estate to Schumacher, the executor, but in trust, with power to sell the same, and divide the proceeds equally among his children. The legal title was thus vested in the trustee. But he held it for the benefit of the children, and the proceeds belonged to them. They were the equitable owners. Lang, being one of such equitable owners, and entitled to a share of the proceeds, executed the deed in question. In it he undertook to convey all his estate, title, and interest. It is contended that he was not the owner, and therefore he conveyed nothing. True, he was not the legal owner, but, as we have shown, he was the equitable owner, and had an interest in the proceeds, which he could convey or release.
Again, it is said that the will, devising the real estate of the executor, with directions for it to be sold, worked an equitable conversion of the realty into personal property. Suppose this to be so. It is not, however, apparent how the rights of the parties would be changed. The children would still be the equitable owners, entitled to the proceeds; and we know of no rule that prevents-the "transfer of personal property by deed. We are aware of the doctrine that prohibits a trustee from dealing with trust property for his own benefit. He will not be permitted to take advantage of his cestui que trust; but where the cestui que trust, is of full age, and stands upon an even footing with the trustee, we see no reason why he may not settle with the trustee, for a consideration, and either release or convey his interest in the-trust estate.- It appears to us that the appellant, by the deed to Schumacher, undertook to convey his interest in the estate to Schumacher -for the consideration of $250, which sum he admitted was paid to him, and that by reason thereof he is now estopped from claiming any further interest in the estate.
Mrs. Schumacher petitioned the surrogate for a settlement of the accounts of Conrad Schumacher in April, 1890, and in such
These views render it unnecessary to consider the question raised under the statute of limitations.
The decree should be affirmed, with costs. All concur.
