41 N.Y.S. 862 | N.Y. App. Div. | 1896
Lead Opinion
I agree with Hr. Justice O’Bbien that the interest of Mrs. Sclioeneman in the real estate in question at the time of the conveyance was dependent upon the precedent life estate in her mother; that by her death prior to her mother’s her interest ceased and her ■children took a vested estate in remainder under the will, and that this interest of Mrs. Sclioeneman was alienable though liable to be ■defeated by her death before the death of her mother. Although I am of opinion that the remainder was contingent upon her surviving her mother, the intention of the testator clearly being to postpone the vesting of the estate until the death of the life tenant, for by the will the direction was that after the death of her mother the whole of said property, both real and personal, was to be divided and paid over equally among the testator’s children then surviving, or the issue of any children, if any should die leaving issue, such issue to take the parent’s share. The estate granted, however, by either of the children of the testator during the lifetime of the mother would be dependent upon such child’s surviving his or her mother, and in case the child died before the mother no estate would pass under such a conveyance. Upon the death, therefore, of Mrs. Sclioeneman the undivided sixth interest in the estate vested in her children subject to the life estate of her mother; and the defendant Loeb, upon the happening of that contingency, was the owner in fee of but five-sixths of the real property described in the conveyance, the other one-sixth being vested in the children of Mrs. Schoeneman. As no estate vested in Mrs. Schoeneman, no estate passed by her deed to Loeb. Had she survived her mother, the remainder would then have vested, and under the covenant of warranty in the ■deed the fee of an undivided one-sixtli of the property of the testator would then have passed to Loeb; but such interest never having
It is quite apparent from a consideration of the deeds and the bond and mortgage that the parties to this transaction correctly appreciated the situation, understood the effect, upon Loeb’s title to the property, of the death of one or more of the children of the testator before that of their mother, and that the deed and bond and mortgage were prepared with a view of protecting Loeb on the happening of such a contingency. The deed which was executed and finally accepted by Loeb contained a covenant whereby the parties of the -first part (the grantors) did jointly and severally covenant and agree to and with the party of the second part, his heirs and assigns, that the said parties of the first part “ are lawfully seized in their own right of a good, absolute and indefeasible estate .of inheritance in fee simple, of and in all and singular the above-granted and described premises,” with a general covenant of warranty. There was a breach of this covenant of title at the time of the execution of the deed. Hone of the grantors had a good, absolute and indefeasible estate of inheritance in fee simple in the property. They had, however, an interest in the property which, upon the death of their mother, would become such an estate as they intended to convey, and under the covenant of warranty that estate would become vested in the grantee upon the death of the mother. This being the condition of the title, Loeb accepted the deed in question, paying a portion of the consideration for the property in cash and giving back a bond which was to become due upon the death of the mother, in whom the life interest was vested, secured by a mortgage upon the property conveyed. That bond ran to the children of the testator who had joined in .the deed jointly. There is no express provision in the bond as to the respective interests of the obligees, and it would be assumed, therefore, that they were entitled to share equally. That, however, was a mere inference drawn from the absence of an express or implied provision showing a .contrary intention as between the obligees themselves; and it seems to me that the question to be determined is whether or not the facts and circumstances surrounding the transaction show that such an intention existed as between the obligees. It is quite immaterial to the obligor just what dispo
hfo case exactly in point has been cited to us, but it seems that the principle established in the case of Pease v. Egan (131 N. Y. 272) applies. There, a testator had left certain real estate to his wife for life, with the remainder to his children upon the youngest child attaining the age of twenty-one years. That real estate was subject to a mortgage. He also left certain personal estate to which the children would become entitled absolutely upon the death of their mother. The widow in order to protect the real estate paid the mortgage out of this personal estate, causing the same to be satisfied of record. One of the children died before the youngest child arrived at the age of twenty-one, and the question was whether or not this mortgage upon the real estate passed by way of subrogation to the representatives of the deceased child so as to entitle them to enforce the lien of the mortgage against the real estate. The court said: “ The daughter in fact has discharged a debt against another, and in the discharge did not act as a mere volunteer. This
I think, therefore, that the judgment was right and it should be affirmed, with costs.
Van Brunt, P. J., Williams and Patterson, JJ., concurred; O’Brien, J., dissented.
Dissenting Opinion
There is no serious dispute about the facts, which are clearly and succinctly stated in the opinion of the .learned judge at Special Term as follows:
“ This is an action for the foreclosure of a purchase-money mortgage. The property originally belonged to-one' Jacob Li-ngsweiler,*163 who died in June, 1882, leaving a will which was admitted to probate in August, 1882. By this will he devised the premises in trust to his executors to collect and receive the income, and, after paying the necessary expenses of the estate, to pay the remainder of said income to his widow during her lifetime, and upon her death the real and personal property was directed to be divided and paid over equally between his children named in said will, or the issue of said children if any should die leaving issue. The six children of Jacob Lingsweiler, with the widow, their mother, conveyed the premises to the defendant Loeb by two deeds, each deed containing the usual full covenants. One of the deeds was dated May 10th, 1887, and was signed by the widow and the six children. After this deed was drawn and before its delivery, on May 18th, 1887, Frederick, one of the children, conveyed his share in the premises to his brother Charles. The deed of May 10th not being satisfactory to Loeb, as to its covenants, another deed dated May 27th, 1887, was drawn, the covenants therein being not merely joint, as in the previous deed, but joint and several. Frederick did not join in this deed, having already, as above stated, conveyed his interest to his brother Charles. The two deeds were then delivered to and accepted by Loeb ; and the mortgage and bond for $15,000 now in suit were given back by him. Julia Schoeneman, one of the children of Jacob Lingsweiler, died on the 17th of November, 1888, during the lifetime of her mother, and her estate is represented in this action by the defendant Hart, who succeeded her executor on the resignation of the latter. The mother, Elizabeth Lingsweiler, died on the T5th of August, 1893. Mrs. Schoeneman, the daughter, left three children, who were of full age at the time of the trial and who are parties to this action. In the bond for $15,000, executed by Loeb at the time of the delivery of the deeds aforesaid, the following provision was inserted: ‘And in the event that the title to any share or interest in the said premises shall fail, the said Solomon Loeb, his heirs, executors, administrators and assigns may make such reasonable payment as shall acquire the share or interest which shall so fail, and the amount so paid shall constitute a credit upon the principal sum provided to be paid by this bond; and, in the event that the said Solomon Loeb, his heirs, executors, administrators and assigns shall not acquire such share or interest by payment, the*164 reasonable value thereof shall constitute a credit upon the said principal sum, it being understood that any amount of which the said Solomon Loeb, his heirs, executors, administrators or assigns shall .thus obtain the benefit shall correspondingly reduce the liability of the said obligees on the covenants undertaken by them in their said deed and that said covenants shall remain and shall only remain in force for any residue or liability upon their part.’ Julia Schoeneman, having died before her mother, as before stated, the defendant Loeb purchased the interest of her children in the property and paid therefor the sum of $6,000, to which it is conceded that he is entitled as a credit upon the bond, thus reducing the pi-incipal sum to $9,000.”
The legal questions presented are: (1) What, if any, was the interest of Julia Schoeneman in the property at the time she joined in the conveyance to Loeb ? (2) What was the interest of her children upon the death of the 'life tenant, she having died before that event? .(3) Has Hr. Hart, as a trustee or administrator of Hrs. Schoeneman, any interest in the unpaid $9,000 ? (4) Should he be required to pay to the plaintiffs the amounts by which their shares in the mortgage were diminished by allowing a credit of $6;000 on the bond ?
The two first of these questions involve a construction of the will of Jacob Lingsweiler. It will be noted that there is no gift made to the children except by the direction to the trustees to divide and pay over the estate to the children on the death of the wife, and the rule applicable in such case is that the gift to the class includes only those of the class living at the time that the gift takes effect. The testator, apart, however, from any rule, expressly provided that it was only the children “ then ” (i. e., at the death of his wife Elizabeth) surviving among whom his estate should be distributed. The direction to the executors is to divide among the children then surviving “ or issue of children, if any shall die leaving issue, such issue to take the parent’s share.”
In The Matter of Baer (147 N. Y. 348), where the will directed the trustees to apply the rents, etc., to the use of the life tenant, “and upon her death to convey the remainder ‘to the children and lawful heirs of my brother, Harmon Hendricks, deceased, to share and share alike,per stirpes,’ ” the court said: “Where final division
It will thus be seen that the construction here given to the will is similar to that given to it by the learned trial judge, that Mrs. Schoeneman was vested with a remainder dependent upon the precedent life estate in her mother, and that by her death prior to her mother’s her interest ceased and her children succeeded as remaindermen under the will. The estate, however, of Mrs. Schoeneman and of all the other children of Jacob Lingsweiler, of which they became possessed at the death of their father, was, nevertheless, an estate which belonged to them, and was none the less alienable, even though liable to be defeated by the death of any of them before the death of their mother. (Sheridan v. House, 4 Keyes, 569; Moore v. Littel, 41 N. Y. 66; Woodgate v. Fleet, 64 id. 566 ; Ham v. Van Orden, 84 id. 257; Surdam v. Cornell, 116 id. 305.) The complaint correctly alleges, therefore, that under the
Reading these covenants in the light of the conditions inserted in the mortgage and bond, it is evident as to what was the intent of the covenantors, and in what sense they were understood by the covenantee Loeb ; because, not only did they not have at that time an “ indefeasible estate of inheritance in fee simple,” but they knew it and Loeb knew it, and the provision was made that in the event of any of the children who were covenantors dying before the life tenant, then Loeb should purchase the interest which had thus jiassed to the issue of the child dying, and provision was also made for his being reimbursed for any moneys so paid, and for crediting the same upon the principal sum due on the mortgage. That this was the understanding of all the parties is further evident from the fact that Loeb had taken a lease of the premises for twenty-one years; that the deeds to him were expressly subject to such lease ;
Having thus in view the situation of the parties to each other respectively, it is not difficult to determine just what was the contract and the purpose of these several instruments. Loeb wanted to purchase the property, and the others were willing to sell; but there was the one difficulty in the way — that as the interest of any child was liable to be divested by his or her death before that of the life tenant, provision had to be made to protect Loeb for any amount that lie might be obliged to pay to secure the interest so failing — and as a result, we have the lease, the two deeds referred to, and the mortgage and bond, with similar provisions to protect Loeb, one of which extended the time for the payment of the principal of the mortgage until the death of the life tenant, when only it could be determined who had an indefeasible estate in fee simple in these premises. This estate of the children of Jacob Lingsweiler, which was a vested, alienable, future estate, and a separate and distinct interest from that of the contingent remaindermen, was what was jrarchased by the defendant Loeb and conveyed to him by the two deeds. This estate the children had a right to sell and Loeb to purchase; for, though it was but a future estate, whether vested or contingent, it was “ alienable in the same manner as an estate in possession.” (1 R. S. 723, § 13; id. 725, § 35; 3 Birdseye’s R. S. 2526, § 80 ; id. 2529, § 102.) Having, therefore, an estate or interest to sell, the consideration thereof, including the bond and mortgage, became at once the property of the six children, except that Charles was entitled to two-sixths by reason of the conveyance to him of Frederick’s interest.
Unquestionably, Loeb understood that he was not purchasing all the outstanding estates in the land, and the children, one and all, understood that they were selling them own interest, and did not purport to sell, and could not sell, the interest of any contingent remaindermen, and, hence, the agreement in regard to the reduction of the mortgage. This agreement embodied in the bond is, that in “ the event that the title to any share or interest in the said premises shall fail,” Loeb should make such reasonable payment as should be necessary to acquire a good title, and that the amount of money so paid should be credited upon the bond and mortgage. This is the
The difficulty with this conclusion is, that there is no evidence of any such agreement having been made between the parties, and the mortgage and bond are payable to all the children by name, respectively, and to “ their executors, administrators or assigns.” Moreover, the cash purchase money was paid to the children; and it would be just as equitable for the estate of Mrs. Sclioeneman to pay back to the others what she received of this cash as to take away from her estate the legal interest which she undoubtedly had in the bond and mortgage. What Loeb purchased and paid cash and gave a mortgage for was the estate which the children then had in the property; but having been undoubtedly advised of, and having in mind the contingency of the death of one or more or all of these children before their mother, provisions were inserted in the bond and mortgage, and covenants in the deed, which were intended to protect Loeb. He took the risk of the children dying and bought all that he could then purchase, and gave therefor the cash and mortgage to those who sold him all they then had to sell. The latter then acquired for the interests which they parted with as good a legal title to the bond and mortgage as they did to the cash purchase money. The agreement between themselves was that they should all stand equally, all receive an equal amount of the proceeds, all be equally interested in the mortgage, all be liable on the covenants in the deed, and that any reduction of that liability should inure to the
It is urged, however, that the covenants into which Mrs. Schoeneman entered with the others are sufficient to justify the court in withholding her estate from any participation in the mortgage, and in compelling it to make good to the others what they have lost by reason of her death and consequent failure of title; that while conceding that Mrs. Schoeneman had, and that Mr. Hart now has, the legal title to a one-sixth interest in the bond and mortgage, he should in equity be debarred from ever asserting or enforcing such ownership.
The argument presented to support this view is that, by their confirmatory deed to Loeb, the children jointly and severally covenanted that they were seized of the premises in fee, and had full power and authority to convey them; that, as it is now found that Mrs. Schoeneman was not seized of her one-sixth, and could not and did not convey it, it became necessary for Loeb to pay, and he did pay, the sum of $6,000 for such interest; that by the credit for this amount given to Loeb in this action, the four surviving covenanting children have paid it and discharged the obligation of their covenant; and that, since it was the title to the share of one of the joint and several obligors, Mrs. Schoeneman, that failed, those who paid are entitled to be subrogated to the right of Mr. Loeb, and are entitled to recover $3,500, the difference between the $6,000 damages payable by Mrs. Schoeneman and her one-sixth of the $15,000 mortgage. And in this connection the principle is invoked that “if as between joint debtors it has become the duty of one of them to pay the entire debt, the others, if they shall be compelled to pay it, will be subrogated to the securities and means of payment held by the creditor against the former, just as if they had been sureties of the former eo nomine.” (Sheld. on Sub. § 170.)
Much of the obscurity' concerning the real legal relations of the parties is due to the fact that the $6,000 was paid to the children of Mrs. Schoeneman, who by her will will be entitled to receive what her administrator may recover in this action as part of the proceeds of the mortgage, and it is this feature of their receiving more than any of the others that inclined the court to seek some principles upon which it could debar Mrs. Schoeneman’s estate from participating in the mortgage, and to find a way to compel it to pay what the other children of the testator have lost by reason of the payment which Loeb was obliged to make to Mrs. Schoeneman’s children. -1 think, however, that if, instead of regarding such payment as having been made to the latter, we were to substitute entire strangers, and keep entirely separate and distinct the legal entities, viz., the administrator representing the estate of Mrs. Schoeneman,
The same consideration that supports Mrs. Schoeneman’s title to the mortgage supports her title’ to the cash purchase money paid, and if her estate is to be mulcted in damages by reason of her death and failure of title, she should not only be deprived of any interest in the mortgage and pay what the others lost by reason of Loeb’s payment for the outstanding interest, but by parity of reasoning her estate should also be required to repay the proportion of the cash purchase price which she received upon the delivery of the deed. I think it improbable that Mrs. Schoeneman ever intended to enter into an agreement which would be fraught with such consequences to her estate. At the time the property was sold there were the interests of the life tenant and of the six children to be transferred. Assuming for the purposes of calculation that the interest of the life tenant in the cash purchase money of $20,000 then paid was $5,000, it would leave to be divided among the six children $2,500 apiece. If we could assume, therefore," that the contract was not to sell for $2,500 and her interest in the mortgage what she then had, but was an agreement by which she was to indemnify her co-covenantors in case of her failure to outlive the life tenant, then, as it has turned out, her estate would be entitled to no interest in the mortgage and would be liable for $3,500, the difference between her interest of $2,500 in the mortgage and the $6,000 which Loeb paid for the outstanding interest to her children, arid, in addition, her estate would be liable for the cash purchase money which she received. Or, if we assume that her estate would be allowed to retain the cash paid to her the net result of such an arrangement to Mrs. Schoeneman, would be that her future intereát in the premises, which was concededly a real one, was conveyed to Loeb, and that for such interest Mrs. Schoeneman’s estate was not only to receive nothing, but in addition was to pay damages as the. result of ■ the - transaction. That no such agreement in terms was made is conceded, nor can I see any way in which it can be implied from the documents which the parties used to effectuate their then intention; and
To summarize, therefore, I think that in selling to Loeb Mrs. Schoeneman acquired an equal interest with the others, not only in the cash purchase money paid at the time, but also in the purchase-money mortgage now in suit, and that the liability created by the covenants and the provisions of the bond was, by the agreement which they made, shared by all, and has been discharged by the credit upon the mortgage of $6,000; that the covenants run to Loeb, his heirs and assigns, and were intended to protect him, and were not intended to protect one covenantor as against the others; that the theory and arguments advanced for holding Mrs. Schoeneman’s estate liable to make good to the others what they have lost by the credit upon the mortgage of the $6,000 would be equally effectual to charge her estate with the cash purchase price which she received at the time of the delivery of the deeds to Loeb; and thence the conclusion would follow that for an interest which she could sell and convey she was not entitled to receive anything.
The decision is in the short, new form allowed by section 1022 of the Code of Civil Procedure, and although the general exception prescribed by that section was not taken, but specific exceptions to portions only of the decision, leaving material parts not excepted to, I think they were sufficient to raise the question as to the interest of Hart as trustee in the mortgage.
Having reached a different conclusion from the learned trial judge, the portions of the judgment appealed from should be reversed, and
Judgment affirmed, with costs.