150 N.Y.S. 957 | N.Y. App. Div. | 1914
Lead Opinion
The purpose of this action is to obtain a judgment canceling and annulling two certain instruments executed by the plaintiff Paul Orth, and by Carl Orth, the deceased father of the plaintiffs Carl B. Orth and Louisa A. Seufferheld.
The following are the facts: On or about April 9, 1905, one Alfred Orth, a resident of this State, died at Woodhaven, Queens county, leaving a last will and testament, dated on or about August 5, 1904. This will was duly admitted to probate on June 15, 1905, and the defendants Max B. Kaesche and Frank H. Wasel were duly appointed executors. The estate involved amounts to upwards of $20,000. By his will the testator bequeathed to his two brothers, Carl and Paul Orth of Heilbronn, Germany, a sum of money amounting to about $14,000 then on deposit with a certain firm. He made several specific bequests, among which was a bequest to the defendant Catharina Wasel of a mortgage on property in Brooklyn, out of which she was to pay the defendant Gertrude Miethe the sum of $1,500, which sum was bequeathed to said Gertrude. Catharina Wasel and Gertrude Miethe were the sole witnesses to the will. It was by means of their testimony that the will was proved, and without their testimony it could not have been proved. This avoided the legacies to them. (2 B. S. 65, §§ 50, 51; now Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 27.)
This instrument recited that it was made on June 1, 1906, between Paul Orth, of Heilbronn, Germany, party of the first part, and Max Kaesche and Frank Wasel, as executors of the last will and testament of Alfred Orth, late of Woodhaven, etc., parties of the second part. It recited that Alfred Orth died leaving a last will and testament which had been duly proved and letters testamentary issued to said parties of the second part. It further recited the provisions of the will in favor of Carl and Paul Orth and Catharina Wasel and Gertrude Miethe; that the said beneficiaries, Mrs. 0. Wasel and Mrs. Gertrude Miethe “ signed said will as witnesses and by so doing are precluded from receiving the legacies bequeathed to them by the said Alfred Orth, and the parties of the second part [the executors] have been advised by their counsel learned in the law, that payment of said legacies cannot be made by them without consent of the next of kin and heirs at law of the said Alfred Orth.” It was further recited that the party of the first part was desirous of carrying out the wishes of said testator as expressed in said last will and testament, and of securing to the said Mrs. 0. Wasel and the said Mrs. Gertrude Miethe payment of the legacies to them bequeathed. The instrument then proceeded as follows: “ Now, therefore, I, Paul Orth, brother, and one of the next of kin and heirs at law of said Alfred Orth, deceased, do hereby in consideration of the sum of one dollar to me paid by the parties of the second part and for the purpose of rendering effective the legacies bequeathed by the said Alfred Orth to Mrs. 0. Wasel and Mrs. Gertrude Miethe * * * consent to the payment of said legacies by the said executors, the parties of the second part to the said legatees above named, and for the purpose of enabling the said parties of the second part to make such payment I hereby assign, transfer and set over to the said parties of the second
These two documents were sent to Gerhard Luyties, who resided at Stuttgart, Germany, with a view to obtaining their execution by Paul and Carl Orth. Luyties procured such execution under circumstances hereafter referred to, and returned the documents to one Julius H. Wasel, a son of Catharina Wasel, who, in turn, delivered them to the executors. The said executors have never acted upon said documents by paying the sums therein specified to Catharina Wasel and Gertrude Miethe, but in January, 1910, in the course of an accounting proceeding before the surrogate of Queens county filed said documents in the Surrogate’s Court. The decree originally entered in said accounting proceeding provided for payment to Catharina Wasel and Gertrude Miethe, but before such payment had been made, upon application of these plaintiffs, said decree was amended by striking out the provision for payment to said Wasel and Miethe, and inserting a provision that the sum of $4,250 should be paid into the Queens County Trust Company “to await the final determination of an action to be begun in the blew York Supreme Court within thirty days after the entry of this order by Paul Orth and the legal representatives of Carl Orth against Gertrude Miethe and Catharina Wasel and others to determine the validity of the assignments and to set aside the assignments from Carl Orth and Paul Orth to Max B. Kaesche and Frank H. Wasel, as executors under the last will and testament of Alfred Orth, deceased, on the ground that they are without consideration; and on the further ground that Gertrude Miethe and Catharina Wasel are not privy to them and cannot take advantage of any provisions therein, and on the ground that the said assignments are not for the benefit of the said Catharina Wasel and Gertrude Miethe, and are not
Thereupon the present action was begun. The executors of Alfred Orth, deceased, take no part in the controversy and make no claim under the disputed documents. The circumstances attending the execution of the documents are detailed in the depositions of Paul Orth and Gerhard Luyties, who do not disagree in any important particular.
Paul Orth, who, in June, 1913, was sixty-five years of age, was a retired magistrate. He was able to speak and write the English language, how fluently or accurately does not appear. Carl Orth, the brother, could neither speak nor read English. Gerhard Luyties, whose deposition was read in behalf of the defendants, after stating that a friendship had existed between himself and Catharina Wasel and her son, and that they had asked him to procure the execution of the documents by Paul and Carl Orth, testified in substance, that it was his belief and opinion that the will was rendered invalid by reason of the fact that Catharina Wasel, one of the witnesses thereto, was a relative of the testator, and that he so stated to the two Orths; that he explained to said Orths that according to American law it was not permitted that a relative sign a testament as witness; probably also for this reason the testament of Alfred Orth was invalid, and that, therefore, their consent was necessary to carry out the testament; that he told Paul and Carl Orth that the testament of the deceased Alfred Orth would be invalid in case they did not sign the
Without quoting further it suffices to say that it is entirely apparent from the testimony of this witness, as well as that of Paul Orth, that the brothers Orth were induced to sign the instruments solely because they were told by Luyties and believed that under our law the will would be wholly invalid and the property distributed as in case of intestacy, if they did not execute the documents then presented for their signature. This, of course, was erroneous, and their mistake being with respect to the. law of a foreign country, was a mistake of fact. (Curtis v. Leavitt, 15 N. Y. 9, 193; Vinal v. Continental Const. Co., 53 Hun, 247.)
We have, therefore, the case of an agreement not yet acted upon, which was executed under a material mistake of fact induced by the erroneous statement as to that fact by the agent of the party to be benefited by the instrument. This is ample ground for a rescission, and it matters not whether Luyties intentionally, or innocently made the misstatements of fact. If he did so intentionally the transaction is tainted with fraud. If he did so innocently, believing that the law in this country was as he stated it, still the Orths, if they believed his statements and relied upon them, as they clearly did, were and are entitled to a rescission so long as the document remains executory, for it is well settled that a court of equity may rescind an apparent contract for the mistake of one party only, without finding fraud or inequitable conduct in the other. (Harper, Inc., v. City of Newburgh, 159 App. Div. 695; Silverman v. Minsky, 109 id. 1; Goodman v. Laborn, 11 id. 617; Crowe v. Lewin, 95 N. Y. 423.) The true rule is thus stated in Kerr on Fraud and Mistake (4th Eng. ed. p. 3): “It is important to bear in mind that an action of deceit differs essentially from one brought to obtain rescission of a contract on the ground of misrepresentation of a material fact. The principles which govern the two actions differ widely. Where rescission is claimed it is only necessary to prove that there was misrepresentation; then, however honestly it may have been made, however free from
There is, therefore, ample ground for rescinding the agreements without imputing to Gerhard Luyties fraud or intentional misrepresentation.
There is still another reason why the plaintiffs are entitled to a judgment of rescission. The defendants Catharina Wasel and Gertrude Miethe were not parties to the instruments which are under seal; there is no assignment of anything to them, and no consideration flowed from them, not even a moral consideration based upon their sacrifice of their legacies by reason of their testifying to establish the will, for under the statute they could have been compelled to testify. All that we have, therefore, is a voluntary order upon the executors to pay certain sums of money to the legatees, Wasel and Miethe, with an assignment to the executors of a sufficient amount out of the shares of the two others to make the payment. This assignment, of course, carried nothing to the executors unless they make the payment, and they claim nothing under it.
If they had made the payments before the attempted revocation of the documents they would doubtless have been protected. But, until the executors acted by making payments thereunder, it remained open to the Orths, for any reason they chose, to revoke their authorization. Clearly there was no gift to the legatees Wasel and Miethe, for nothing was ever delivered to them and no agreement ever made with them. Although couched in formal phrase and embellished with seals, the documents were nothing more than orders upon the executors to make payment of the plaintiffs’ money to persons to whom the plaintiffs owed nothing. Such an order was subject to revocation at any time before it had been complied with. Upon both grounds above stated the plaintiffs were entitled to recover and the judgment against them was erroneous.
The judgment appealed from must, therefore, be reversed and judgment directed in favor of the plaintiffs, with costs in this court and the court below. A decision embracing such
. McLaughlin and Clarke, JJ., concurred; Laughlin and Hotchkiss, JJ., dissented.
Dissenting Opinion
I am unable to concur in the reversal of this judgment, which, I think, is in accord with the evidence and the law. The test of our jurisdiction is not what we would have done had we been sitting in the place of the trial court, but whether the judgment appealed from is supported by the facts and is in conformity to law. Whether the instruments may be avoided on the ground either of unilateral mistake or fraud, depends upon (1) whether the Orths in fact relied on what Luyties said; and (2) whether in law they had the right to rely on it. The court below found that when the two Orths executed the instruments in question, they were fully aware of their contents, and the learned trial court refused to find that in attaching their signatures to such instruments the Orths relied on anything that was said to them by Luyties. This is equivalent to an affirmative finding that the Orths did not rely on what Luyties told them. To succeed on this appeal, it is necessary for the appellants to show that this finding is either without evidence to support it, is against the weight of evidence, or that the instruments are in and of themselves ineffectual to invest the respondents with title to the interests in dispute.
First, as to the finding of fact. That the two Orths knew the contents of the papers they severally signed can scarcely be disputed. Paul, the survivor, testified that he and the deceased Oarl, in response to a letter from Luyties, went from their home in Heilbronn to Stuttgart and called upon Luyties at his residence, where the conference with reference to the instruments took place between the three men, and that as the result of this conference the three proceeded to the office of the United States vice consul where the papers were severally executed by the Orths and as so executed were delivered to Luyties. From the testimony of both Paul and Luyties it is to be inferred that these two and Oarl were together from the beginning of the conference until the papers were executed. Paul also testified
Read in the light of this situation, the instruments sought to be avoided contain in themselves persuasive evidence that the two Orths fully comprehended their true import and quite sufficient proof to justify the trial court in refusing to find that either of the Orths relied on Luyties’ statement of the legal effect upon the will resulting from the fact that it was witnessed.as above set forth. The two instruments are in identical form except as to parties and signatures. They recite the death of Alfred the testator, “leaving a last Will and Testament * * * which said Will has been duly proved by the Surrogate of said Queens County and letters testamentary have been duly issued * * * and are
May not the foregoing afford the key to the present action ? It is not probable that when the two Orths, or Paul, the survivor, on reflection recalled that the legacies were to be paid from the Orth’s portion of the estate alone, disappointment over the diminished returns led to his giving an exaggerated importance to the witless statement of Luyties concerning the law. On the whole, must we accept Paul’s present testimony as to the effect on his mind seven years before of what Luyties told him, as sufficient to overturn a finding based upon so many circumstances contradicting it ? Second. On this record I am prepared to go further than did the trial court, and to find not only that the Orths did not rely on what Luyties told them but also to hold as matter of law, and notwithstanding the rule of ratification or adoption, they had no right to rely on it. By this latter rule, one who knowingly appropriates or enjoys the fruits of another’s act will not after-wards, ordinarily, be heard to say that the act was unauthorized. But does this rule apply in a case of representations repugnant to the express terms of an instrument sought to be avoided, and where he who invokes the rule has notice of a lack of authority to make the representations relied upon. Of this rule Mr. Mechem, in his work on Agency (2d ed. § 435) says: “Like all other general rules, however, this is one which must be received with caution, and applied with discrimination; for it is perfectly clear that there are many cases in which one may receive a benefit without incurring any obligation either to return or to pay for it.” In Quinlan v. Providence Washington Ins. Co. (133 N. Y. 356) Judge Andrews
But the question remains, did the instruments constitute valid gifts ? So often have they been stated that it is unnecessary, except for the purpose of recalling them, to restate the essential ingredients of a valid gift inter vivos of personal property. They are (1) a clear intention on the donor’s part to make the gift in prcesenti with some evidence of acceptance by the donee, and (2) complete and unconditional delivery. Delivery may be in accordance with the nature of the thing given (Gannon v. McGuire, 160 N. Y. 476, 481), and hence actual or constructive (Beaver v. Beaver, 117 id. 421), and may be to a third person as agent or trustee for the use of the donee. (Bump v. Pratt, 84 Hun, 201; Taylor v. Kelly, 5 id. 115.) If evidenced by a written instrument, the instrument must be delivered (Williams v. Guile, 117 N. Y. 343), the essential thing being that the donor is divested of his title to and dominion, as owner, over the gift. (Beaver v. Beaver, supra, 428, 429.) And a transfer may be sustained as a gift, although the form of a sale is adopted merely to give effect to the donor’s intentions. (Van Deusen v. Rowley, 8 N. Y. 358.) Here the instruments express a consideration, but the intent to give is apparent from the entire situation as disclosed and is expressly manifested by the words “desirous of carrying out the wishes of the said testator; ” “ for the purpose of rendering effective the legacies; ” and “ for the purpose of enabling ” the executors “ to make such payment. ” On delivery of the instruments title to and dominion over the interests, which were the subject of the gifts, passed from the donors to the executors by the words, ‘ ‘ I hereby assign, transfer and set over ” to them “ such amount of my share in said estate as will be * * *
For the reasons given the judgment should be affirmed.
Laughlin, J., concurred.
Judgment reversed and judgment directed-in favor of plaintiffs, with costs in this court and in the court below. Order to be settled on notice.