126 N.Y.S. 419 | N.Y. App. Div. | 1910
Lead Opinion
On a former trial of this action the plaintiff recovered a judgment substantially for the relief demanded in the complaint, but on appeal to this court it was reversed. (131 App. Div. 24.) The former record presented, and this court in the opinion, in which all of the sitting justices concurred, considered the questions presented by this appeal, with one exception. It appears by. the record now before the court that after the trial justice had ruled on forty-two proposed findings of fact and nine proposed conclusions of law at the request of the attorneys for the plaintiff, he ruled on thirty-five proposed findings of fact described as “ Plaintiff’s Additional Bequests to Find.” These proposed requests, with the exception of being designated additional findings, were in the- form of original requests to find by the attorneys for the plaintiff. With respect to the thirty-fifth proposed additional finding, the record shows the following : “ Thirty-fifth. That in making these findings of fact this court has followed the decision of the Appellate Division on the former appeal herein as to the weight of evidence as to all questions of fact which were before the A ppellate Division in this case in favor of the defendants. (Found as to modification at request of defendant’s attorney.)” Following the memorandum with respect to the modification of the request are . the initials of- the trial" justice and the abbreviation of his official title." It is contended on the part of the respondent, and I think the fair inference is, t'hat the trial justice modified the thirty-fifth proposed additional finding at the instance of the attorneys for the defendants and found it in the modified' form. If it had been a proper finding of fact it would have been the duty of the. trial justice to rule on it as proposed without modification ; but no question with respect to that point is presented, for the record does not contain the proposed finding in its original form and there was no exception to its not having been found as presented. The learned counsel for the appellant contends that this finding shows that the trial justice did not exercise his judgment on the questions of fact independently of the views of this' court, and
On the questions which were considered by this court on the former appeal, we have examined the evidence which was presented more fully on this trial, but we do not. find that the change in the record is sufficient to render inapplicable thereto the rules of law which we applied on the former appeal in reversing the judgment.
The testator, Henry Ungrich,. died on the 1st day of March, 1901, leaving two sons, the plaintiff and. the. defendant Henry Ungrich, Jr., his only surviving children. He left a last will and testament, and therein appointed his son Henry and his nephew, Martin Ungrich, the defendants, executors and trustees. After directing the payment of his debts and funeral expenses he gave, devised and bequeathed unto his executors all his estate, real and personal and mixed, in trust to take possession of, manage and conduct the same arid to collect the rents, issues and income therepf until the Jivision of his estate $s therein directed^ and out
On the 22d day of May, 1902, the trustees conveyed the real estate to one Davenport, an employee of their attorneys, who, pursuant to a prior understanding, conveyed the same to the defendant Henry Ungrich, who was one of the trustees, and to whom, as has been seen, an undivided one-half interest-therein was in effect devised and the remainder in the other undivided one-half subject to the payment
It clearly appears by the evidence, and has been found by the trial court, that the defendant Henry Ungrich purchased the property at the request of the plaintiff; that the plaintiff was informed that a trustee could not purchase from himself, but notwithstanding this plaintiff insisted that he only was interested and since he desired it no one else could complain ; that both the defendants and the attorney took particular pains to impress upon the plaintiff that a purchase by one of the executors and trustees was not proper in such case, and the precaution was taken to suggest the appraisal of the property by an appraiser selected by the attorney and another chosen by each party, in which the plaintiff acquiesced. The attorney for the trustees,,who had been counsel for the testator, with the knowledge and acquiescence of the plaintiff, employed a reputable, well-known and disinterested real estate auctioneer and broker who was known to plaintiff to appraise the real estate and his appraisal was $152,000. The defendant Henry Ungrich also employed an appraiser who appraised the Value of the property at $148,000. The plaintiff consulted a friend in the real estate business concerning the value of the property, but did not appoint an appraiser. He expressed satisfaction with the appraisal made at the instance of the attorney, which was in writing, giving a separate valuation on each parcel, and was examined by him. The plaintiff had for nearly a year been desirous of having the real estate sold or of having his annual income definitely fixed. The other trustee on the 9th day of May, 1902, added $5,000 to the higher appraisal as the selling price of the property. The defendants were unwilling to sell the property at public auction, deeming it an inopportune time, for the reason that real estate values were then low. The defendant Henry Ungrich was willing and anxious to. purchase one of the parcels, but the plaintiff was desirous of having it all sold, and the other trustee took the position that it should all be disposed
It appears that the defendant Henry Ungrich received from his father in 1897 certain "assignments of mortgages upon which there was due $25,000. After the death ■ of the testator, the plaintiff complained to his brother Henry with respect to these assignments, and it was thereafter agreed that Henry should give him $6,000. This was done on the 23d day of June, 1902, and the plaintiff then executed a general release to the defendant Henry Ungrich, and in ■it specified any-claim which he had with respect to the assignments of said mortgages. On or about the 1st day of March, 1902, on due notice to the plaintiff, the defendants duly accounted to that date as executors in the Surrogate’s Court in the county of Hew York, and' on the 25th day of September, 1902, -their "accounts were judicially settled and allowed as filed and adjusted. On the 2d day of March, 1903, the executors and trustees filed in the office of the clerk of the' Surrogate’s Court an account of their proceedings from the 1st day of March, 1902, until the 1st day of March, 1903, setting forth
The evidence clearly shows that the plaintiff fully understood his rights^ and that he knew all of the material facts, and not only induced his brother to purchase the premises, but, as already stated, he formally approved such purchase and ratified and confirmed it, both at the time and subsequently. The case falls clearly within the principle laid down by' this court on the former appeal herein, that a competent beneficiary who induced a breach of the trust on the part of his trustee and ratifies it is estopped from thereafter complaining of such breach, and within the doctrine- of Woodbridge v. Bockes (59 App. Div. 503; affd., 170 N. Y. 596).
It follows, therefore, that the judgment should be affirmed, with costs.
Ingraham, P. J., McLaughlin and Miller, JJ., concurred.
Concurrence Opinion
(concurring):
I concur in the affirmance of this judgment upon the ground last stated, namely, that the accountings in the Surrogate’s Court • were binding and conclusive on all parties in interest, and that plaintiff cannot maintain this action while the decree of that, court remains operative.
Judgment affirmed, with» costs.