139 A.D. 1 | N.Y. App. Div. | 1910
Lead Opinion
On January 3, 1886, James Misbet died, leaving a last will and testament, whereof Margaret M. Wright was executrix, and under which she is testamentary trustee, and whereby a life estate in all his property was given and devised to his wife Janet, with remainder to his three children, Margaret, James and Andrew ; in case of the death of any of them before the decease of his wife, then his or her child or ehildrén should succeed to the parents’ share; but while the shares of" James and Andrew were stated to be given to them absolutely, the share given to Margaret was. for her life.only; at her-death her one-third share was to be divided among her surviving children, and in case she died without children, ■ then it was to go to her brothers or their issue. James Misbet owned the premises 231 West Thirty-third- street, Mew Tork city, and under his will, his wife having died in March, 1.886, his sons James and Andrew each then became seized of ■ a one-third interest in said premises and his daughter Margaret M. Wright became entitled to the life estate in the remaining one-tliird. Prior to January 16, 1902, she purchased the interest of her brothers in the premises, and thus became seized in fee of an undivided two-thirds interest therein and was the owner of the life estate in the other one-third. On or about January 16, 1902, she sold the premises for $27,000 which she deposited in a trust company in her individual' name. ■ Of this amount she was the absolute owner in her own right of $18,000 representing the value of an undivided two-thirds of the purchase price, and the remaining- $9,000 was held by her in her representative capacity, slie being entitled to-the income therefrom for life. . Being thus the owner of $18,000 she began in September, 1905, to make advances to her daughter, Mrs. Margaret E. Gallen, which by February 27, 1906, amounted to $4,500. It is the contention of -Mrs. Wright that these were payments procured to be made by her daughter’s pleas of poverty and demands for her share of her grandfather’s (James Misbet’s) money; In response to questions which were leading in the' highest degree, but to which no objection was taken, she insisted that this was the sole reason why
There was then received in evidence an agreement in writing under seal, dated November 20, 1907, between Margaret E. Callen and Margaret M. Wright, wherein was recited the prior gift by mother to daughter of the sum of '$4,500 under a verbal agreement that the daughter would pay the mother four per cent per annum upon said sum in semi-annual payments during the latter’s lifetime, and whereby the daughter covenanted to pay such interest on the first days of January and July of each year, and whereby the mother “ for herself, her heirs, executors and administrators, does covenant, promise and agree to and with the said Margaret E. Callen that she, the said Margaret M. Wright intended to make a gift of the said * * * $4,500 to the said Margaret E. Callen, and does hereby declare the same to have been a gift, subject, however, to the agreement to pay the sum of 4% per annum thereon during the lifetime of the said Margaret M. Wright, and she does hereby further covenant, promise and agree that upon her death her heirs, executors and administrators shall not make any demand from her, the said Margaret E. Callen, for the said sum of * * * $4,500, nor shall she, the said Margaret E. Callen, be obliged to pay the said sum pf * * * $4,500 during the lifetime of the said Margaret M. Wright, nor shall she be obliged to account for or pay to the heirs, executors, administrators or assigns of the said Margaret M. Wright the said sum of * * *• §4^500.” It is not disputed that this sum of $4,500 is the same as that represented by the'advances made to the daughter aggregating $4,500. The agreement is not attacked ; it is not claimed to have been procured by fraud, duress or undue influence; it is not even sought to be explained. It affords the most persuasive and. complete corroboration of Mrs. Callen’s testimony. The learned surrogate said he did
The decree appealed from is reversed, with costs to the appellant -against the respondent personally, and the. proceeding remitted.to the -Surrogate’s Court for further action in accordance herewith.
McLaughlin, Clarice and Scott, JJ., concurred.
Concurrence Opinion
. I concur with Mr. Justice Dowling. This was a voluntary proceeding instituted by Margaret M. Wright: ' The relator alleged that James ¡Nisbet died leaving a last will and testament by which he devised to the petitioner during the term of her natural life
Decree reversed and proceedings remitted, as stated- in Opinion with . costs to appellant against the respondent personally.