183 A.D. 336 | N.Y. App. Div. | 1918
The question for determination is whether, under the will of Albert T. Peck, the transfer from his widow to her sister of the securities sought to be replevied is valid.
By the 2d item of the will he gave to his wife, Grace A. Peck, “ the use of the sum of Twenty thousand dollars for and during the term of her natural life, with the right and privilege to use such part or portion of the principal thereof as to her shall seem meet and proper.” By the 3d item of the will he gives to her “ for and during the term of her natural life, the use, rents and income of ” the Johnson House in Johnstown, N. Y., “ with the right and privilege of selling the same if at any time she should deem it necessary, and the right and privilege to use such part or portion of the proceeds of the sale of said house, as to her shall seem meet and proper; and a conveyance by her of said house and lot to any person, shall be deemed to be an exercise of the right herein conferred upon her to sell and convey the same, and her conveyance thereof shall be valid and effectual forever.”
The securities in question are a part of the $20,000 mentioned in the 2d item of the will.
The will also provided that if at the time of the death of Grace A. Peck “ there shall be left any part or portion of the sum of Twenty thousand dollars given and bequeathed to my said wife in paragraph second of my said will, and the house and lot situated on North Perry street, or the proceeds thereof mentioned in paragraph Third of my said will, > then I give, devise and bequeath said sums, and the said house and lot, or the proceeds thereof ” equally to the legatees mentioned in the 25th item of the will, of whom the wife was one.
It is clear that the testator did not mean to give to his wife absolutely the $20,000 and the house and lot. She could not dispose of them by will or in a testamentary manner. (Matter of Ithaca Trust Co., 220 N. Y. 437; Matter
The transaction between the sisters took place August 23, 1913, at San Francisco, at the house where they had been hying together for about a year prior thereto, and must be gathered substantially from the testimony of Mrs. Bradley and the instruments executed at the time. Both of the ladies were in apparent good health; Mrs. Peck was then about fifty-eight years of age and Mrs. Bradley about ten years o der. The Bradleys rented a rooming house, 855 Capp street, and sublet rooms, having four roomers aside from Mrs. Peck, and evidently had but little if any means aside from the $10,000 which it was claimed by Mrs. Bradley that Mrs. Peck had given her when she was in New York, and apparently that sum was the only money Mrs. Peck had aside from the benefit she derived under this will.
On August twenty-third Mrs. Bradley sent for a lawyer, selected by her to come and see Mrs. Peck, as she says, at the latter’s request for the purpose of making her will. The will of Mr. Peck was produced, and the lawyer was asked his judgment upon it, and he had grave doubt whether Mrs. Peck could give away the $20,000, but thought she could otherwise dispose of it. Thereupon formal papers were executed, which need not here be particularly described other than a reference to their general nature. Mrs. Peck made a transfer of all of her property to her sister, Mrs. Bradley; also a deed of the Johnson house in Johnstown and an assignment of the two mortgages in litigation here; she also made her will giving to Mrs. Bradley all of her property. At the same time Mrs. Bradley-executed her will, giving and devising to Mrs. Peck all the properties and moneys “ which I have received or shall receive by gift, conveyance, assignment, bill | of sale and purchase, or in any one or more of said manners or otherwise, from or through her, the said Grace A. Peck; and in the event that for any reason whatsoever it is impossible or impracticable to distribute, deliver and assure to her any one or more of the identical articles of said properties or effects so received, then unto said Grace A. Peck, I "bequeath the value as of and at the time of my receipt thereof of each and every such article of said properties and effects, money
At the same time Mrs. Bradley executed a paper whereby, in consideration of the transfers, deeds and assignments made-by her sister of even date, she agreed as follows: 111 *. * * do hereby undertake and agree to and with the said Grace A. Peck to comfortably support and maintain her (or afford her, from the properties so made or to be made over to me or from other sources if required, the necessary means to that end) so long as she shall live. Also, to be a companion to her, give her all such personal and sisterly care, nursing and attention as she may desire or require and my circumstances permit and treat her as a member of my own family and in all respects with every due kindness and consideration, all while we both shall live.”
The natural effect of these instruments, read together — and they were clearly one transaction — is that the property was to be used for the support of Mrs. Peck and that upon her death Mrs. Bradley was to become the owner of it, if she survived her sister; upon the other hand, if Mrs. Bradley died during the lifetime of Mrs. Peck the property was to become the property of Mrs. Peck. In that case the transfers and' the wills were of but little importance, unless possibly the attorney had in mind that Mrs. Peck, by receiving the property as a legatee and devisee of her sister, would receive it freed from the conditions and limitations of the husband’s will and become the absolute owner of it. It is evident that such a transaction cannot be upheld .as an exercise of the power given to the widow by the Albert T. Peck will.
We can profitably mention certain facts which make plain the intention of the sisters, and make it clear that the transaction referred to was an attempt to evade the provisions of Albert T. Peck’s will, and was not a reasonable exercise of the power given by it but was a studied effort to evade it and deprive the residuary legatees of the benefits Mr. Peck intended for them.
Mr. Peck died July 2,1911. In February, 1912, Mrs. Bradley came, without invitation, from California to Gloversville, N. Y., to see her sister, as she says, because she worried
On redirect examination she was asked: “ When you say Mrs. Peck had spent all the money, you mean she had spent it in the ways indicated, by giving you an automobile and buying this property, 855 Capp Street. That is what you mean? A. Yes. Q. And yet it was understood between you and Mrs. Peck that she was to have the use of that money during her lifetime, and you were to have it completely on her death? A. But there was not any left. Q. But the understanding was that? A. Yes, in the way I have said before.”
The attorney says that when Mrs. Bradley was to sign the paper he called in her husband and that he signed his consent. The husband was asked: “ Do you recall substantially the substance of what you signed yourself? A. I should have no objection in any way, as the husband of my wife, to anything that transpired between her and Grace, Mrs. Peck. Q. That was relating to what? A. The will, or whatever was to be done between them. Q. Was it stated to you or not, substantially, what was being done between them? A. Making a will. Q. What do you mean by making a will? A. She was to — I don’t know just how to get at that — but
When Mrs. Bradley was at Gloversville her husband wrote her, in reply to a letter he had received from her. He deplores the conditions of the Peck will, but makes it plain that in some way they must get the property freed from its provisions. Evidently this letter was not received by her, but it discredits the husband and makes it plain that he and his wife were "keen to get the property away from Peck’s beneficiaries, and indicates that he had full knowledge of the transaction of August twenty-third and probably was the instigator of it. Mrs. Bradley swears that the money was changed from Mrs. Peck’s name to hers at the savings bank and that an account was opened in another bank in the name of both sisters, upon which either one checked. The bank books were not produced. When the house was bought for Mrs. Bradley as a gift from Mrs. Peck, the latter gave her check for the purchase price. Two thousand dollars is alleged to have been given by Mrs. Peck in the same manner to Mrs. Bradley’s son, and an automobile was bought for Mrs. Bradley as a gift from Mrs. Peck and paid for by Mrs. Peck’s check drawn in the same way. It is strange, if the moneys were Mrs. Bradley’s, why the checks should be drawn by Mrs. Peck and the transactions treated as gifts from Mrs. Peck. When the house at Johnstown was sold, although it had been deeded to Mrs. Bradley, it was conveyed to the purchaser by Mrs. Peck.
It is quite evident from the entire case that when the sisters discovered at Gloversville that the $20,000 could not be given away but must be used for support, Mrs. Peck immediately divested herself of all of her own money, giving it. to Mrs. Bradley, and moved with her property to Mrs. Bradley’s residence in California. This was undoubtedly for the purpose of depriving Mrs. Peck of the means of support and making it necessary to use the principal of the estate, and the so-called gifts were evidently made for the purpose of dissipating the funds of the estate and turning them away
The testator uses the words “ meet and proper ” with reference to the $20,000 legacy; we may also infer that he had in mind the necessity of such use the same as occurred to him with reference to the real estate, as it is not evident why he should draw any distinction between them. A reasonable construction of the gift to the widow of the $20,000 and house and lot is that she was to have the life use of them, with the right to dispose of them if necessary, in her judgment, for her use and benefit, in such a way as she should deem meet and proper. The exercise of the power called for good faith upon her part and a reasonable ground for saying that it was meet and proper and necessary for her to dispose of the principal. She was an executrix of the will, and while
The judgment should, therefore, be reversed upon the law and the facts, and judgment directed for the plaintiffs, with costs.
All concurred; H. T. Kellogg, J., not sitting.
Judgment reversed upon the law and facts, with costs, and judgment directed for the plaintiffs, with costs. The court disapproves of the fourth and sixth findings of fact, and makes the following additional findings of fact: By the transactions between Mrs. Peck and Mrs. Bradley, her sister, of which the alleged transfer of the securities in question is a part, it was the intention thereof that Mrs. Peck should have the use of said property during the lifetime of . both sisters, and at the death of either of them that the survivor should become the absolute owner of said property. The transfer was not made for the use, comfort or benefit of Mrs. Peck, and in making it she did not deem such disposition of the property meet and proper, but did it in bad faith, and for the purpose of wrongfully taking the property of her husband away from his beneficiaries and making it the absolute property of herself and her sister; that said transfer was without consideration, and of no force, and that the plaintiffs are the owners and entitled to the immediate possession of said securities and the defendant wrongfully withholds then! from the plaintiffs.