82 A.D. 596 | N.Y. App. Div. | 1903
The plaintiffs in this action are the infant heirs of the late George A. Steinway, who died on or about the 14th day of September, 1898, leaving a last will and testament bearing date February 6, 1897, in and by which he nominated, constituted and appointed his cousins, Charles H. Stein way and Frederick T. Steinway, and his brother-in-law, Louis von Bernuth, as executors and trustees thereunder. The will was admitted to probate by the surrogate of the county of New York on the 27th ‘day of October, 1898, and letters testamentary were issued to Louis von Bernuth, the other executors and trustees having failed to qualify, and since that time the said Louis von Bernuth has acted as sole executor under the will. By the provisions of the will above mentioned the entire estate was vested in the executors'in trust for the plaintiffs in this action, who were to he maintained and educated, and, upon arriving at the age of twenty-one years, respectively, were to come into possession of a one-third interest in the property. There were provisions for vesting the estate in the event of the death of any of the plaintiffs, but these are not material to the questions presented upon this appeal. From the date on which letters testamentary were granted in 1898 to the 1st day of May, 1900, Louis von Bernuth, who had reduced to possession the property left by the late George A. Steinway, applied portions of the income of the estate to the education and maintenance of the infant plaintiffs, making payment thereof to their mother, Ottilie O. Recknagel, as the general guardian of their persons and property. On the date last above mentioned the defendant Louis von Bernuth declined to make further advances toward the education and maintenance of these plaintiffs, alleging as a reason and justification for such refusal that the executors of the will of the late William Steinway, father of the late George A. •Steinway, had, during the month of April, 1900, made a claim or •claims against him as sole executor of the will of George A. Stein
George A. Steinway-was born on June 4, 1865, and on the 17th day of April, 1888,, married Ottilie C. Roesler, who was at that time about seventeen years ,of age. From 1892 to 1894 he and his wife resided in the house of the latter-at Great Neck, Long Island, but. George was dissolute.in Ms habits and the home was brolcen.up, the latter going to a sanitarium at Mamaroneck, where he remained until July, 1895. In the meantime, and, as it appears, with'the approval of her husband’s family, the wife determined to secure-a divorce. On the 24th day of June, 1895, she left New York for Fargo, N. D., where, .in September of that year, a. divorce was. granted her, George A. Steinway personally appearing by his attorney in the action. On the 28th day of December, 1895, she married her present husband, Carl L. Eecknagel, Jr. On the day that Mrs.. George A. Steinway left New York for North Dakota, William Stein way, father of George, entered into a written contract with his. daughter-in-law, the present Mrs. Eecknagel, whereby he agreed to pay her in quarterly installments the sum of $6,000 per year-until July, 1898, and $7,500 in each year thereafter until the youngest or-last survivor of her three children should attain the. age of ■ twenty-one years, the money so paid- to be applied by the daughter-in-law to her support and maintenance and to that of the three little children. It was agreed that Mrs. Eecknagel should have the custody and control of -the children; that she should be supported out of the fund, and that she should not be called upon to- explain or account for any of the moneys.so received by her, the spirit of the contract, evidencing the largest possible confidence in the mother of the-children and an intent o.n the part of William Stein way to discharge to-
Under the provisions of the last will and testament of the late William Stein way, who died on the 30th day of November, 1896, Charles H. Steinway, Frederick T. Steinway, Louis von Bernuth and Paula Theoda von Bernuth became the executors and executrix of the estate of the said William Steinway, the said Louis von Bernuth being the same person who is the sole acting executor and trustee of " the late George A. Steinway, and'who joined with his coexecutors and executrix in the defense interposed in the New York county action mentioned above. Paula Theoda von Bernuth is the wife of Louis von Bernuth, and as the daughter of the late William "Steinwav is entitled to a one-fifth interest in the residuary estate of the latter, so that if the claims asserted by Louis von Bernuth, his wife and the other executors of the will of William Steinway against Louis von Bernuth as executor of the estate óf George A. Steinway, amounting to from $50,000 to $125,000 as variously estimated, it would result in seriously depleting the estate of George A. Stein way and the property interests of these plaintiffs, and correspondingly benefiting the estate of William Steinway and
■ The learned court at Special Term, after hearing the evidence, declined to find that there was a.conspiracy between tbe‘defendant Louis von Bernuth and his coexecutors, and it is urged that the element of conspiracy being eliminated from the case, it presents merely an action for an accounting, of which the Surrogate’s Court had jurisdiction, and that the case should have been sent to that court for adjudication. Many authorities are cited in support of the proposition that a court of equity ought not to retain jurisdiction of an action for an accounting against an executor in the absence of peculiar facts and circumstances tending to show that full justice cannot be done in the Surrogate’s Court, and we have no doubt this is true, but we are of opinion that this case presented matters which it was not proper to send to a court of limited statutory jurisdiction to deal with. It is not essential to the jurisdiction of equity that the conspiracy alleged shall be proved in the sense that it would be required to be established in a criminal prosecution ; if a person occupying the relation of a trustee is shown to be conducting himself in a manner inconsistent with his duties to the beneficiaries of such trust, then it is the duty of a court of equity to take jurisdiction and to render such judgment as the peculiar facts and circumstances of the case, taking into view the interests of all parties, shall warrant. In the case now before us the defendant Louis von Bernuth was the executor and sole trustee of an estate; he was the coexecutor of another estate of which his wife was an executrix and residuary legatee, largely interested, and he was joining with her in the assertion of claims against the estate of which he was the sole executor, leaving the beneficiaries of the trust estate without any adequate protection unless this was afforded by the courts. It seems to us that the facts, while not amounting to a conspiracy in a strict legal sense, were sufficient to justify a court of equity in. taking jurisdiction to probe the matter, and having taken jurisdiction it was proper to retain it and to afford the relief which the facts demanded. “ The grounds of my decision,” say the court in its
The proposition is likewise urged that as the complaint alleged a conspiracy, and the litigation involved the ownership of certain stock in the Steinway & Sons corporation, the defendants were entitled to a trial by jury. Replying to a similar contention, the court, in the recent case of Miller v. Edison Electric Illuminating Company (78 App. Div. 390), say: “ A suit properly constituted as one in equity is not, and never was, one to which the constitutional provision with reference to a trial by jury could apply, and the provision of the Code of Civil Procedure contained in section 968 which requires an action ‘for a nuisance’ to be tried by a jury the same as an action of ejectment, dower, waste or to recover a chattel, applies only to the ‘ action for a nuisance ’ which is authorized by section 1660 of the Code of Civil Procedure, and that is purely a common-law action.” If the defendants desired the trial of any specific questions of fact, and were entitled to the same, they must be deemed to have waived this right by not complying with the provisions of section 970 of the Code of Civil Procedure,, it not being pretended that they applied to the court, upon notice^ for an order directing the trial of the same. This is not an action for the recovery of a chattel; the plaintiffs merely ask to have it adjudged that certain property in the hands of their trustee belongs to the estate of George A. Steinway, as it was conceded to have belonged
We have carefully examined the evidence, aided by the very full and complete discussion in the appellants’ brief,- without being able to reach a different conclusion from that of the learned court at Special Term. While the 500 shares of stock in the Steinway & Sons, corporation, the principal matter in controversy here, appear to have been dealt with somewhat informally, there is nothing in the evidence to rebut the presumption that stock issued in the name of an individual, the dividends of -which aré credited to his account and drawn upon by him,'belong to his estate, and the burden of proving the contrary is upon those asserting the claim against the estate of George A. Steinway. William Steinway died in November, 1896; his son, George A. Steinway, survived him nearly two-years, and during that time there was no suggestion that the stock in question did not belong to him. George died in September, 1898, and the stock went, into the possession of his executor, Louis von Bernuth, who was also one of the executors of the will of William Steinway, and no question was raised as to the ownership of the property until April, 1900, after the mother of these plaintiffs had brought an action to compel the executors of the estate of William Steinway to comply with the terms of the latter’s will, ratifying the contract of June 24, 1895, heretofore mentioned. It does not appear from the evidence that a single fact came to the knowledge of the executors of the will of William Steinway in April, 1900, which was not known to them at all times following the death of their testator in 1896, which had any bearing upon the ownership of this stock. Having acted upon the theory that the stock was the property of George A. Steinway, for more than three years, with full knowledge of all the facts, and the defendant Louis von Bernnth having taken possession of the property in violation of his duty -as an executor of the will of William Stein way, if his present attitude is correct, the proof would have to be much stronger' than that which - has been spread upon the record now before us to establish that George A. Steinway did not own this stock at the time of his death, and that it does not now belong to his trustee for the benefit of his children. There are many facts and circumstances, not neces
The defendant Louis von Bernuth urges that he should not be burdened personally with the costs of this action. There certainly is no good reason why the plaintiffs in this action, who have been obliged to invoke the aid of a court of equity to prevent the defendant from sacrificing their trust interests, should be compelled to pay the costs, either personally or out of the funds which they have preserved to the estate, and as the learned court at Special Term has not implicated the coexecutors in the wrongdoing, there would appear to be no one else upon whom the burden may properly fall.
The interlocutory judgment appealed from should be affirmed, with costs. .
Goodrich, P. J., Bartlett and Hirsohberg, JJ., concurred; Jerks, J., not sitting.
Interlocutory judgment affirmed, with costs.