206 A.D. 762 | N.Y. App. Div. | 1923
I dissent from the reversal of the decree of the surrogate in the matter of the sale of the Dark Island property to the appellants. The surrogate has found that there was no actual fraud or false representations as to value, and as to this I understand the majority of the court agree. So far as breach of any fiduciary or trust relation between the appellants and the executors is concerned, I think the evidence shows that Miss Marjorie Bourne, in making the purchase, was not relying in any way upon the judgment or advice of the executors, or her brothers and sisters. She was acting for herself, and her sister Mrs. Strassburger was with her. Neither of these ladies asked any advice from the executors. She admits that her brother Arthur, one of the executors, advised her not to buy the property. She made an offer of $370,000 through her brother-in-law, Mr. Strassburger, asking the executor Vail to conceal the fact that it was her offer from her brother. After the contract was made and after the deed was delivered she lived on the property during the summer of the years 1919, 1920 and 1921, and when she began her litigation her alleged grievance was entirely different from that now asserted. It is idle to speak of this property as worth but $40,000 or $50,000, the amount of the valuations as appraised or assessed. Her father had actually expended upon the property more than the sum at which it was carried upon his books and which was the sum bid by her, and its replacement value in 1919 was double that sum. She was relying, not on the executors, but upon her own judgment and that of her sister and her brother-in-law, Mr. Strassburger, whom she appointed her attorney in fact. In fact her letters show that she resented any interference by the executors with Mr. Strassburger. Upon the evidence here, Miss Marjorie Bourne and her sister, Mrs. Strassburger, were at all times dealing at aim’s length with the executors and the other members of the family. They were women of great wealth, determined to obtain this particular property, and I think they should be held to their bargain. Kapper, J., concurs. Settle order on notice.