194 A.D. 411 | N.Y. App. Div. | 1920
The plaintiff’s father died in 1887, leaving a will which purported to convey personal and real estate. The plaintiff was then three years of age. Her mother at her father’s death had two living children of a former marriage, one of which children was Leigh Arey, who was subsequently married to James H. Channon,. defendant, and by whom she had two children, Katherine Channon and Elizabeth Channon, defendants in this action. The plaintiff, thereafter, resided with her mother and with the said James H. Channon and his wife until she was eighteen years of age. Her mother had died in 1897. After her mother’s death James H. Channon was appointed .guardian of the plaintiff’s estate while his wife was appointed guardian of the plaintiff’s person. James H. Channon thereupon became possessed of assets belonging to the plaintiff’s estate of. a value in excess of $300,000. She knew little, if anything, about the details of her property. When she became of age she became interested in one Henry Ludlam, who was much her senior in age, and she proposed to marry him. This marriage was opposed by Channon and his wife, but she persisted and was thereafter married to him. On April 6, 1906, the day preceding her marriage, she signed a trust deed of property aggregating in value about $120,000 to the United Security Life Insurance and Trust Company of Pennsylvania. The trust thereby created in general was a trust to invest the property and pay the income therefrom to her for life, and at her death to her appointee by will, and in case she should die without leaving a will that her husband might take such part of the property as she would be entitled to take in his property if he died intestate, and the residue of the property was passed to the child or children of the grantor who should be living at the time of her death. There was a final contingent provision for the benefit of Channon’s daughters. This trust deed contained the following provision: “ The said Grantor shall have the right to change the Trustee
Before discussing the weight of evidence there is one further point that perhaps should be considered. It is claimed that the plaintiff had against her at the time of the commencement of the action certain claims of creditors, and that this transfer would be void as to those creditors, and it was strenuously claimed upon the argument before this court that at the instance of these creditors the trust deed could be entirely swept away. I do not so understand the law. To whatever
In examining the evidence I have been impressed with the intelligence and the keen perception shown by the plaintiff in her answers to the ■ questioning of the attorneys. The distinctions made by her in those answers show a rather unusual mental discrimination and intelligent appreciation of the information sought to be elicited. But this intelligence, as indicated by her examination, bears not a little upon the question of fact that is here for consideration, whether, eleven or twelve years before, when she had executed this trust deed, she understood what she was doing and understood the nature of the trust that she was creating. She swears that the deed was presented to her with a suggestion that it would be well to put the property in trust for three years in order that she might find out just what she wanted to do with it, and that at the end of three years she had the power of revocation of the trust to withdraw the property entirely to herself. This was when she was about to be married. The property thus to be held in trust was confessedly about one-half of her property, as was supposed at that time. The question occurs if it- were simply for the purpose of giving her three years to consider what was best to be done, why still more of her property was not put in that trust deed, and the further question, why she should cripple herself by this trust for three years with the power of absolute freedom at her will thereafter. This trust deed was drawn by Wilkinson at his suggestion. Wilkinson was a lawyer in Philadelphia. He was a trust officer of this trust company which was made the temporary trustee. He had been her father’s friend. He had been many years associated with a prominent law firm in Philadelphia, and the plaintiff and her mother had often visited at Wilkinson’s house, and he had apparently a personal interest in her. He swears that this deed was executed after many consultations in which she was informed that the trust was irrevocable and as she was about to be married that she concluded that it was a wise act to put this property in trust as a protection to herself and to her children thereafter in
With this conflict between the evidence of the plaintiff and the evidence of Wilkinson as to the plaintiff’s understanding of the provisions of the trust deed, with the apparently disinterestedness of Wilkinson, and the strong personal interest of the plaintiff, there is one significant fact which in my judgment should control the determination of this case. This deed of trust was executed in 1906. In 1915 the plaintiff, having dissipated her other available property, sought to obtain moneys from the trustee for the purpose in part at least of prosecuting her proceeding against her former guardian in the State of Illinois. The United Security Life Insurance and Trust Company refused to loan money upon the trust deed. The Connecticut Trust Company was willing to loan to the plaintiff money upon the security of that deed, and apparently for that reason alone the plaintiff exercised her right reserved in the trust deed of changing her trustee. For the purpose of obtaining this advance of moneys by the Connecticut Trust Company she executed her personal obligations, interest bearing, to the Connecticut Trust Company. The question at once arises, if the plaintiff understood that trust deed was revocable at that time, why she did not demand
The judgment herein should, therefore, be reversed, with
The fourteenth finding of fact is reversed and this court finds that the trust deed to the United Security Life Insurance and Trust Company in 1906 was executed by the plaintiff with full knowledge on her part that the trust therein created was irrevocable and with full understanding of its force and effect. Judgment is ordered in accordance with this conclusion, with costs.
Clarke, P. J., Dowling, Page and Greenbaum, JJ., concur.
Judgment reversed, with costs, and judgment rendered in favor of defendants upon the merits, with costs. Settle order on notice.