52 N.Y.S. 653 | N.Y. App. Div. | 1898
Lead Opinion
Francis TV. Lasalc, a resident of Westchester county, died on the 13th of February, 1889, seized and possessed of a large estate, consisting of real and personal property. He left a will with several codicils, which were offered for probate to the surrogate of Westchester county, and were by him admitted to probate after a contest, and his decree admitting the will to probate was affirmed by the Court of Appeals. The executor named in the will renounced his trust and the plaintiff was designated in his place, and letters of administration with the will annexed were issued to it. In pursuance of the authority of those letters the plaintiff took possession of all the real and personal estate of which Mr. Lasalc died the owner, and proceeded to administer upon it according to the will. The heirs at law of Mr. Lasak were four children and a granddaughter of a deceased son. Mrs. Schermerhorn, one of the appellants here, was one of the children. By the will of her father she received only the income of $30,000 during her life, which was very much less than the share of the estate which she would have taken had her father died intestate, and she was apparently dissatisfied with the provisions of the will, which dissatisfaction existed to a somewhat less extent, apparently, in the minds of the other heirs at
During the time that elapsed from the adjudication of the surrogate of "Westchester county sustaining the will of Mr. Lasak, to the entry of the final judgment in jiartition, the plaintiff, claiming to be the owner of the real estate as trustee under the will, had collected the rents and jiaid out from them certain expenses and distributed a jiortion of them in the manner jirovided by the will. After the final sale under the judgment of jiartition, the plaintiff, whose title had been divested by that judgment, began this action to jirocure a settlement of its accounts and an adjudication as to the rights of the several defendants to share in the proceeds of the rents which remained for distribution after the jiayment of the exjienses. Answers were served in that action and it was referred to a referee before whom it was tried, and from the judgment entered upon his report this appeal is taken by several of the defendants. The principal question jiresented ujion the appeal arises by reason of the claim of Mrs. Schermerhorn, one of the heirs at law, that she is entitled to receive one-fifth of the rents jiaid over to the jilaintiff while it held this real estate as trustee under the will. Her projiosition is that the will having been declared void and it having been adjudged that Mr. Lasak died intestate as to the real estate, the jilaintiff took no title and is bound to account to the heirs at law for the rents and profits of that property which it held in defiance of their rights. The jilaintiff was a jiarty to the judgment in jiartition and insisted strongly ujion the validity of the will under which it claimed to have the title to this jiroperty. In that litigation it was defeated, and the judgment entered in that action is conclusive upon the jilaintiff that it had no right to take possession of this jirojierty; and as a result it is bound to account to the heirs at law for the rents and jirofits of the real estate precisely as any other jierson who takes jiossession of the real estate to which he has no title, is bound to account.
This makes it necessary to construe the agreement to ascertain precisely the rights of the parties. At the time the paper was made, the will of Mr. Basalt had been admitted to probate as a valid will of real, as well as personal, property. Under it the plaintiff held the title to the whole estate for the purposes of that will. It was receiving the rents of the real estate, as well as the income of the personal estate for the benefit of the eestuis que trust. The adjudication of the surrogate was conclusive as to the title to the personal property, which, as appears from the case, amounted to a
Under this provision Frost claims that he was entitled to receive not only all the rents which accrued after the 16th day of June, 1892, the date of this agreement, but the rents which had accrued and been paid over before, because he says that it was the clear intention of the parties, as stated in that portion of the agreement recited above, that the entire estate both real and personal should be divided. In this contention we concur. It is clear to us that the paper contemplated a division of the entire estate and that it stood, so far as the parties to it were able to make it stand, in the place of the will of their father which had been partly set aside, but which, except so far as their own personal interests were concerned, they did not object to. They took care of all the legacies which were payable, as well out of the real as out of the personal estate. They made a division of the entire estate, talcing into consideration what had been received by each person out of the personal estate; so that, as the result of the agreement, every person who was a beneficiary under the will, except the parties to that agreement, received precisely what the will gave him and the parties to the agreement received the remainder of the estate in such proportions as was satisfactory to them. It is quite clear that this distribution required that all the estate, both real and personal, should be taken into consideration, otherwise no equitable result could have been reached, and the necessary meaning of that portion of the agreement which was quoted above, which required the division to be made so that the entire estate, both real and personal, should be disposed of, as prescribed in the agreement, made it imperative to put into the fund for division all the property which was 'then held under the will of Francis Lasak, and make a final disposition of it; so that when the agreement had been carried out, the whole estate had been turned over to the persons who by this agreement were intended to
The only other question which arises upon the appeal is raised by the objection of Frost’s executors and of Mrs. Ives to the allowance to the plaintiff of certain portions of the rent which were paid by the plaintiff to Mrs. Chauvet after the execution of the conveyance of the 16th day of June, 1892. In its account the plaintiff credits itself with payments of rents to Mrs. Chauvet to the amount of §7,520, made between the 4tli day of October, 1892, and the 29th day of May, 1894, both days inclusive. Mr. Frost claims that, as he was the owner of Mrs. Chau vet’s interest at that time, these rents should have been paid to him and not to her, and Mrs. Ives makes the same claim, she insisting that she is the owner of these rents by a conveyance from Mrs. Chauvet. So far as her claim to be the owner of the rents is concerned, as between herself and Mrs. Chauvet, it is unnecessary to consider it. She, with Mrs. Chauvet, had joined in a conveyance of their interest to Mr. Frost, and so far as they were concerned he was the owner of these rents. When there shall come to be a distribution in which the respective shares of Mrs. Chauvet and Mrs. Ives are to be determined, it will be time enough to settle the question in what proper
On the Stli of July, 1892, the counsel for all the parties in the action of partition, including the plaintiff, consented that Calvin Frost might be made a party to that action, and the order recited the conveyance to Frost of four-fifths of this property. That certainly operated as notice to every party to the action that Frost had received a conveyance to this property and claimed title to it. But it further appears that on the fifteenth day of July one of the parties in that agreement went to the office of the plaintiff with the agreement and presented it to the president and asked him. to sign it, to which he replied that he would not do it unless Mrs. Ives would guarantee the company one per cent commission on the real estate, and upon that being declined, he refused to execute it for that reason alone. We think that the notice to the attorney of the conveyance to Frost of the property, the title to which was in issue in the action, was notice to the plaintiff; but whether that be so or not, there is no doubt that the presentation of this agreement to the plaintiff’s president on the fifteenth of July, reciting as it did the conveyance to Frost, was all the notice which anybody could require that the rights of those heirs at law had been conveyed to him. But the
It is claimed by the plaintiff, too, that it acted as the agent of Frost in distributing these rents. But that claim is clearly untenable. It was claiming in hostility to Frost. What it did was done under the will which Frost was attacking. The title it claimed was that derived from the will, which was not the title adjudged to be in Frost. There was no aspect of the case in which it could be said that the plaintiff was the agent of Frost in receiving and disbursing those rents.
The plaintiff finally claims that Frost ratified its action in paying these rents to Mrs. Chau vet by a letter dated on the 11th of May, 1894. All that appears with regard to this letter is.that it was received at about its date. It is addressed to the plaintiff and states that a conveyance had been made to him of their interest in the real estate of Mr. Lasak by Mrs. McKenzie and Mrs. Chau vet, and then continues, “ I write this to convey my assent to the payment to them of the shares of income which you would pay to them but for such conveyance.” No consideration was paid to Frost for this letter and it was entirely voluntary so far as appears. No action was ever taken upon the faith of it or upon the promise that it would be sent before the time of its date, nor does it appear that the plaintiff changed its position with regard to these rents in the slightest degree, except as to one payment, by reason of anything said in the letter or by reason of its receipt. It wTas clearly no contract and can operate, if at all, only as a consent or ratification or by way of estoppel. As a ratification of previous payments it is entirely ineffectual. It speaks in the future tense. It does not convey the assent of Mr. Frost to payments which had been made, but to payments which they would make, thus clearly referring to what should be done and not to what had been done. Indeed there is no
There are no other matters in the case which require consideration. The judgment should, therefore, be modified as indicated above, and as modified affirmed, without costs.
Van Brunt, P. J., and Patterson, J., concurred; Ingraham, J., dissented.
Dissenting Opinion
I concur with Mr. Justice Rumset in the affirmance oí the judgment upon the appeal of the defendant Schermerhorn, but I cannot concur with him in the modification of the judgment suggested. By the conveyance of the property to Frost he became vested with the title to it under an agreement by which it was to be sold by
I think that the judgment was right and should be affirmed.
Judgment modified as indicated in opinion of Rumsey, J., and as modified affirmed, without costs.