202 N.Y. 280 | NY | 1911
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *282 This action was brought for the purpose of obtaining an adjudication that the plaintiff is the owner in fee of the premises known as 76 West 125th *283 street, in the city of New York, and that the defendants, who claim title under a deed from William D. Leonard, be directed to convey the premises to the plaintiff and account for the rents received by them.
Joseph B. Hart died in the city of New York on or about the 4th day of December, 1878, leaving a last will and testament, which was duly admitted to probate on the 28th day of December thereafter. He left him surviving Emma S. Hart, his widow, and the defendants, who were his children. In his will he created a trust in favor of his widow during her life, with remainder over to his children, and appointed John Jay Nestell, George W. Hart and Emma S. Hart executors and trustees under his will. John Jay Nestell qualified as such executor, etc., and became the sole manager of the estate. Emma S. Hart, the widow of the testator, died on the 21st day of September, 1907, and thereupon her children, the remaindermen, called upon Nestell for an accounting as to his management of the estate. The plaintiff is the wife of Nestell, and on the 30th day of December, 1907, he conveyed to her the premises in question. After proceedings had been instituted in the Surrogate's Court by the remaindermen for an accounting of Nestell as executor and trustee, an examination of his accounts was had by an accountant, who reported him short in a large amount, and thereupon a claim was made that he had conveyed the real estate in question to his wife in violation of the rights of the remaindermen, and in order to procure an adjournment of the accounting before the Surrogate's Court the plaintiff was induced to execute a deed of the premises which had been conveyed to her by her husband, to his attorney, William D. Leonard, to be held by him in trust for the purpose of securing any amount that might be found due from her husband to the defendants. Thereupon "Leonard executed and delivered to the defendants a declaration of trust to the effect that he had accepted the conveyance above mentioned and held the premises *284 therein described for the following uses and purposes, viz.:
"First. To pay any and all sums which, upon a proper accounting by the said John J. Nestell, as sole surviving executor and trustee under the last will and testament of Joseph B. Hart, deceased, shall be decreed to be due and payable by him to Irene N. Collord, Charles H. Hart, Emma J. Sheridan and such other persons, if any, as by said decree shall be determined and adjudged.
"Second. To pay over any balance that may remain after the payments aforesaid to Emma E. Nestell, the grantor named in the said conveyance above mentioned, her executors, administrators or assigns.
"Third. For the purpose of carrying out the provisions above mentioned, to sell or dispose of the above-mentioned premises at public auction or private sale as may be deemed most expedient, and to execute and deliver to the purchaser or purchasers thereof, good and sufficient deeds or conveyances for the same, the proceeds thereof to be applied in accordance with the provisions above mentioned."
The proceedings before the surrogate for an accounting were thereupon adjourned from time to time, and subsequently and on or about the 3d day of July, 1908, an agreement in writing was entered into by John Jay Nestell and the defendants, by which he turned over and assigned to them a number of bonds, mortgages and stocks of corporations, of the value of $257,000, to be applied upon his indebtedness to them when the amount should be ascertained, and also agreed to cause to be transferred to them the real estate in question to be valued at $55,000, to also be applied upon such indebtedness, the surplus, if any, to be returned to him; and thereupon Leonard, the plaintiff's trustee, conveyed the premises to the defendants, pursuant to that agreement. The trial court has found that this conveyance was made with the knowledge and consent of the plaintiff. It is *285 not claimed, however, that she joined in the written contract, or that her consent was in writing. The court further found as a fact that $55,000 was the full value of the premises, and, as conclusions of law, that the deed executed by the plaintiff to Leonard was a valid conveyance; that the conveyance by Leonard to the defendants was also valid, and was in all respects ratified and confirmed by the plaintiff; that the defendants are entitled to the possession and control of the premises, and to the rents, issues and profits thereof, until such time as there shall be a final determination as to whether or not Nestell is indebted to the defendants by reason of his acts as executor and trustee under the will of Joseph B. Hart, deceased. And if the amount due from him exceeds the value of the premises as fixed by the agreement between him and the defendants, and the other personal property transferred by him to them, the defendants shall be adjudged to be entitled to retain the same as owners in fee, but if it shall be adjudged that any less sum than the total amount of the valuations placed upon the real estate in question and the personal property is due from Nestell, the defendants, on paying to him the difference, shall likewise be entitled to retain the real estate in question as owners in fee.
We are of the opinion that the deed from the plaintiff to Leonard is a valid instrument, and under the findings it cannot now be set aside as void; but it must be construed in connection with the declaration of trust executed by Leonard, and when so construed it becomes in effect a mortgage upon the real estate. Leonard, as her trustee, is authorized to pay the defendants the amount that shall be decreed by the surrogate to be due and owing by her husband upon his accounting as an executor and trustee of Joseph B. Hart, deceased, and to return any balance that may remain after such payment to the plaintiff. The plaintiff, therefore, continued to retain the right of redemption and to be the owner of the equity that should exist after the satisfaction of the defendants' claim. Should *286 the decree entered upon the accounting fail to show any indebtedness upon the part of Nestell over and above the bonds, mortgages and stock turned over to the estate, then the plaintiff would have the right to have the premises reconveyed to her. But if the decree was for a greater amount than that turned over by Nestell, she would only be entitled to have the premises reconveyed upon paying the amount so found due, or to receive back the surplus, if any, that may remain after a sale and the discharge of such decree. This, we think, is an interest in real property of which she cannot be deprived except by operation of law, or by her deed of conveyance in writing.
By section
The trial court found as a fact that $55,000 is the full value of the property. No claim was made upon the argument or in the brief of counsel that this amount was not the full value of the premises. The plaintiff's husband and the defendants were endeavoring to reach a settlement of their differences, but until the final amount had been determined by the decree the defendants desired to have the real estate in question held as security for the payment of any deficiency that may be found. It was under these circumstances that Leonard exercised his power of sale in conveying to the defendants. It may be that had Leonard protected the interest of the plaintiff *288 in the premises in making the conveyance, the provision under which the sale was made might possibly be construed as sufficient to authorize the transfer; but he clearly had no power by such a conveyance to deprive the plaintiff of her right to redeem or to have returned to her any surplus that may be left after the discharge of the decree of the surrogate on the final accounting of her husband as executor and trustee. The defendants had before them the declaration of trust. It or a copy had been delivered to them, as appears by the findings. They, therefore, were chargeable with knowledge as to the powers of Leonard as trustee. Ordinarily in finding errors of the character disclosed herein, we should order a reversal and a new trial. But in view of the fact that no question has been made that $55,000 was not the full value of the premises, we incline to the view that justice may be done between the parties by ordering a modification of the judgment so as to provide that if no indebtedness is found owing by Nestell to the defendants, the premises be reconveyed by the defendants to the plaintiff and they account for the rents and profits. But if the decree be that a balance is still due and owing from Nestell to the defendants, then that the balance of the $55,000 remaining after paying such decree, together with the rents and profits, be returned to the plaintiff, and as so modified affirmed, without costs of this appeal to either party.
CULLEN, Ch. J., WERNER, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ. concur.
Judgment accordingly. *289