94 N.Y.S. 900 | N.Y. Sup. Ct. | 1905
John Slater and James Slater, brothers, for upward of forty years had been partners in the retail shoe business on and near Broadway, in this city, conducting a large and profitable business, which at the time of John Slater’s death, on June 2-8, 1901, was earning an approximate annual profit of $30,000. He left him surviving a widow, the plaintiff, and his son and daughter, the defendants herein. His will was duly admitted to probate July 2, 1901, and contained, among other provisions, the following: “ Third: I give, devise and bequeath unto my'executrix and executors hereinafter named, or the survivor of them, or the person or persons who may be appointed or qualify as such in their places or stead, all the rest, residue and remainder of my property, real and personal, and wheresoever situated. In trust, however, and to and for the uses and purposes hereinafter named, viz., * * * 1st. To pay over to my
The widow of decedent, his son and James Slater were the executors named in said will and duly qualified as such. Dissensions arose between James Slater, the surviving partner, and the estate of his brother, and litigation ensued, which was finally settled by a decision of the Court of Appeals (Slater v. Slater, 175 N. Y. 143), holding that the right to use the firm name did not go to the surviving partner, but was an asset of the firm, to be disposed of for the partnership benefit, and that the purchaser of the firm assets would also obtain the .good-will of the firm, and this included, even as against the surviving partner, the exclusive right to use the name under which the firm did business. Accordingly a sale of the business, stock and good-will of the firm of J. & J. Slater was advertised for sale under the direction of the court, any party to the action being at liberty to purchase at said sale, this including the defendant herein, John J. Slater. The sale was adjourned from time to time while negotiations were progressing between the estate and James Slater for an amicable settlement. Meantime defendant John J. Slater had been conferring with Mrs. Cardeza, a wealthy lady and a friend of his family of long standing, relative to> inducing her to furnish sufficient funds to buy in the business for the
Concurrently with the disputes between James Slater and the John Slater estate dissensions had arisen between John J. Slater and his mother. The son had been steadily discriminated against by his mother in favor of his sister; she had given him but little money, even though he was a chronic invalid and was dependent- for most of his support and that of his wife upon the bounty of a stranger in blood; his sister was hostile to him; the mother refused to answer her son’s letters and her mind had been poisoned against him by absurd or malicious stories; even his physical distress was used as a means of attack upon him. As a result of these conditions John J. Slater was continually insisting on his demands for one-third of the income of his father’s estate, which he had called for from his father’s death. This his mother refused to give him and he has received but little money from her. When he found himself debarred from seeing his mother, because of her absence from home under assumed names, he insisted still more strenuously on some written acknowledgment of what he deemed his right to one-third.
With this contest still undecided a compromise of the differences between James Slater and the estate of John Slater had been brought about by the attorneys by which a corporation was to be organized to take over the business of J. & J. .Slater, wherein James Slater was to take stoeK for his interest and the John Slater estate was to have an interest continued in the business, receiving $25,000 in cash and $25,000 (one-fo-urth) of the stock of the new company. This settlement was not satisfactory to any of the John Slater heirs, but- was finally accepted by them verbally as being the best procurable under the conditions. This agreement was reduced to writing and is hereinafter called the store agreement. On January 6, 1904, it was submitted to the Slater
The store agreement still remaining unsigned, it not being possible to make it effective without the signature of John J. Slater, as executor of his father’s estate, and he refusing to affix, the same until he had a written assignment of a one-third share of the income from the estate, the attorneys pre-, pared a tentative agreement, assigning a percentage of the total net income of the John Slater estate to the son and daughter. This was the assignment, the' subject of this suit, except that the amount was left blank. In its completed form it will be referred to as the family agreement. On January sixth John J. Slater refused to sign the store agreement, unless the family agreement was signed with thirty-three and one-third per cent, inserted as the share both of his sister and of himself. On January seventh, the day of the sale, he refused to sign the store agreement unless the family agreement gave him and his sister twenty-nine per cent, each, that being the mean between the twenty-five per cent, offered by his mother and the thirty-three per cent, demanded by him. With James Slater and Mrs. Oardeza at the store, prepared to buy, and a.number of other persons present to attend the sale, with the estate without money to buy the business in, and her son refusing to sign the only possible settlement — the store agreement—- the plaintiff finally yielded, and on the morning of the seventh signed the family agreement, still protesting against it, and asking her attorney’s advice, even as she signed it, whether she could not
The only considerations that can be urged to support the family agreement are (a) the natural love and aSection ac■eompanying the relationship of mother and son; (b) the rights, if any, legal or moral, which John J. Slater had under his father’s will to a share of the income of the latter’s estate; (c) the signing by John J. Slater of the store agreement. As to (a), it is sufficient to say that there is no evidence of the existence of any such feeling, and it is contradicted by the evidence of the state of feelings existing between mother and son, as well as by the mother’s refusal to sign any paper recognizing her son’s rights until under the pressure of her son’s refusal to sign the store agreement.
As to (b), either John J. Slater had a right, under the provisions of his father’s will, to some definite or certain part, large or small, of the income from his father’s estate, or he had none. The provisions of the will in respect to the income have already been set forth. While there is the expression of a wish, or desire, or hope on decedent’s part that his widow would support, educate and maintain his children from the income of his estate, the will is not even precatory in terms, and further provides that the net income is given to the widow absolutely, to use and apply as she might deem best and proper, without any liability to account in any manner for her disposition thereof. This, in my opinion, removes the case from any of those where precatory terms have been held to create an enforceable interest, or where a charge or trust has been held to exist subject to which the estate passed. In the case of Collister v. Fassitt, 163 N. Y. 281, upon which so much stress is laid by both sides, there was an absolute direction to the wife to use so much of the estate as she might, in her discretion, from time to time
There remains, then, only the third consideration (c). James Slater stood ready and able to buy the business on January seventh; so did Mrs. Cardeza, who refused to buy for or with the estate unless the son was provided for by a written agreement from his mother; the estate had no funds sufficient to purchase the store; all the parties had agreed that the store agreement was the only hope for the retention by the estate of any interest in the business. John J. Slater’s signature as executor was required to effect a settlement with James Slater, and he refused to sign until his mother executed the assignment in suit. It clearly appears, as in the minds of all the parties, that the real consideration for the mother’s family agreement was to be the son’s signing the store agreement. The latter was either advantageous or disadvantageous to the estate. If disadvantageous, John J. Slater had no right to injure the estate whereof he was executor in order to benefit himself personally, and should never have signed the store agreement, nor can he be permitted to- derive any advantage therefrom. If advantageous, it was his duty as executor (in pursuance of the expression of desire in his father’s will that the interest of the estate in the business be continued) to sign the store agreement promptly and without other considerations. He could not equitably exact from his mother some'consideration for doing what it was his duty as executor to do. Judgment for plaintiff, with costs, against defendant John J. Slater.
Judgment for plaintiff, with costs.