115 N.Y.S. 413 | N.Y. App. Div. | 1909
Henry Ungrich died leaving a will by which he gave to his executors and trustees all of his property, ivhich consisted largely of real estate, in trust, to sell at their discretion and convert into cash and pay the one-half part to his son defendant Henry, Jr., to whom it was given absolutely, and to hold the other half for the use of the plaintiff Martin Louis, his only other child, during his life, and on his death to pay "the principal to Henry, Jr., if living, or his issue, or in default to certain designated persons. Until a sale of the real property was made one-half the net income was to be paid to the plaintiff. The son Henry and a nephew, the defendant Martin, were named as executors and trustees, and they rendered quarterly statements to the plaintiff of the income from the real property and disbursements connected therewith and paid him one-lialf the net rentals for something over a year. . Discussion was had between the plaintiff and the defendants respecting a sale of all the real property and resulted in a deed of conveyance from the trustees to one Davenport for an expressed consideration of $157,000 who gave
Wé are of the opinion that the findings are clearly against the weight of evidence and that the judgment must be reversed.
The testimony oh the part of the defendants, which the plaintiff does not seriously if at all contradict, discloses that very shortly after his father’s death and upon receiving statements as to rents from the real property and disbursements connected therewith, the plaintiff complained of the uncertainty of his income and the amounts expended upon the property, and his own letters as early as June, 1901, show that he was contemplating a sale of all the real property, and desired a specific description so that he might draw correct diagrams for the use of appraisers. Such descriptions .were furnished him, and he shortly wrote from the mountains where he was spending his vacation that he had done nothing yet with respect to having an appraisal, but there was time
Plaintiff’s real estate experts testified that in May, 1902, the real property in question» was of greater value than $157,000, and that, that price was inadequate. From the situation disclosed by the record, however, it is manifest that if the defendants had sold the property in good faith to a third -party for that sum they could not have been held liable for not obtaining a greater amount or selling
Of course it is true as a bald proposition that a trustee cannot deal to his personal advantage with the property of 1ns trust. It is likewise true that a cestui que trust cannot allege an act upon the part of his trustee to be a breach of trust which has been done under his sanction or procurement or concurrence. (Butterfield v. Cowing, 112 N. Y. 486; Vohmann v. Michel, 185 id. 420.) At the time of the transactions of which the plaintiff complains he was of full age, an architect by profession, employed at least part of the time by one of the leading architects of, the city of New York, in apparent good health and in the possession of his mental faculties. While his habits had been irregular to such an extent that he had given his father much trouble, his letters indicate that he had reformed, and in them he takes occasion to upbraid his brother, the defendant, for wrongfully criticising his. conduct, and the testimony is explicit that he was not under the influence of liquor at any of the times when negotiations were had or the various papers executed.
No misrepresentation as to rents which the property produced is claimed to have been made, or of anything in connection with the property except its value. Being an architect he must have known something of building and building sites, and in the face of the overwhelming evidence contained in the record it is idle for him to claim that he did not understand the effect of the papers which he was executing, and that he did not sanction and approve of the transfer of the property to his brother who was one of the trustees under the will of his father.
It was not necessary in view of the facts disclosed for the defendants to prove a ratification, as though all that was done had been done without his knowledge and assent, as the learned trial court appears to have assumed. The rule that to fasten ratification upo
The plaintiff having sanctioned and assented to the transaction and concurred in the transfer of the property to his brother, and having understood all the facts and no deception having been practiced upon him, he is hound by such sanction and cannot repudiate it notwithstanding the defendant Henry may have been guilty of a technical violation of his trust and may by .good fortune have largely benefited by the purchase.
Complaint is made with respect to the management of some of the personalty in the defendant’s hands. Nothing is shown in that regard sufficient to-cause the removal of the trustees or to invoke an accounting in the Supreme Court. Whatever differences existed appear to have been settled; but if not, the proper forum to adjust whatever may remain is the Surrogate’s Court on a regular accounting by the trustees.
Oar conclusion iff that the judgment must he reversed upon the law and the - facts and a new trial granted-, with costs to the appellants to abide the event.
Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event. " '