194 A.D. 1 | N.Y. App. Div. | 1920
The parties in this action are husband and wife. Upon the trial of this action before a referee plaintiff recovered a
“ This agreement, made and entered into this 22d day of June, in the year of our Lord, one thousand nine hundred and seven, by and between George N. Ostrander of the City and County of Albany and State of New York, party of the first part, and Harriet E. Ostrander, party of the second part. Witnesseth: That whereas, in and by the last will and testament of George R. Einch, late of Glens Falls, New York, the said party of the-second part, then Harriet E. Finch and the widow of the said George R. Finch, was devised and bequeathed a yearly annuity of $25,000, conditioned upon her remaining unmarried, it being further provided that upon her remarriage, the said legacy or annuity should lapse, and, returning to the body of the estate of said decedent, should, with the principal sum wherefrom said annuity was to be derived, eventually pass to the residuary legatees named in and by the said last will and testament of George R. Finch, deceased, to wit: Helen E. Foulds of Glens Falls, New York, and George N. Ostrander, the party of the first part hereto; and
“ Whereas, the said parties hereto have now intermarried, and prior to said marriage it was agreed by and between the parties hereto, and by the party of the first part as a compensation for the forfeiture of the said annuity belonging to the said party of the second part caused by such marriage, and for the purpose of providing a suitable maintenance and support for his said intended wife, the said party of the second part, that he, the said party of the first part, should and did set apart for such support and maintenance and as a settlement
“ Now, Therefore, TMs agreement made tMs 24th day of June, 1907, between the said George N. Ostrander, party of the first part hereto, and the said Harriet E. Ostrander, party of the second, [sic] hereto, Witnesseth: That for and in consideration of the premises and of the sum of one dollar by each of said parties to the other paid, and because of said marriage and certain other good and valuable considerations from said parties to each other passing, it is agreed as follows, to wit:
“ That the said party of the first part does hereby covenant and agree to set apart one-half of all the property and estate, real and personal, wMch he may receive, or wMch may be paid over to Mm as one of the legatees under the last will and testament of George R. Finch, late of Glens Falls, New York, deceased, the same to be and constitute a trust fund and separate estate of the said party of the second part and wMch he, the said party óf the first part, as trustee for said party of the second part, shall have and hold in trust neverthe-» less, to invest and reinvest the same and to collect and receive the income and profits thereof and pay over the same unto the said party of the second part during the term of her natural fife, and upon her death and the death of the said trustee, party of the first part, the said principal of said trust fund, together with all accumulations of interest and income shall be paid unto such parties or persons as she, the said party of the second part, may by will direct, or should she die intestate, to her lawful heirs at law. It being intended that the said trust so created shall terminate and cease upon the death of both the parties to tMs agreement. And tMs agreement is here made in ratification and confirmation of an ante-nuptial agreement made between the parties hereto, and is done for the purpose of confirming and carrying into effect said ante-nuptial agreement.” The agreement was signed and acknowledged by the parties, who are the parties to tMs action.
On the same day tMs agreement was made and signed
The judgment, as modified, should be affirmed, without costs.
Plaintiff’s appeal should be dismissed, without costs to the defendant.
All concur, except John M. Kellogg, P. J., and Cochrane, J., who dissent and vote for reversal on the ground that _ the referee did not determine whether any of the income of the trust was expended by the husband at the request or consent of the wife, and that that matter should be determined.
Judgment modified in accordance with opinion and as so modified affirmed, without costs.