17 N.Y.S. 410 | N.Y. Sup. Ct. | 1892
This action was brought to obtain a delivery to the plaintiff of a bond in the sum of $2,000, secured by a real-estate mortgage upon lands in the county of Erie. Pending the action, the defendants, with the assent of the plaintiff, and under an arrangement by which such acts should not prejudice the rights of either party, collected the amount of the bond and mortgage, and they now have in their hands the moneys arising therefrom, subject to the final judgment in this action; so that the judgment which was
The first codicil, which was executed June 14, 1880, contains nothing material to this case. On the 22d day of September of that year the second codicil was executed, but this likewise in no way affects the rights of the plaintiff. On the 29th day of January, 1883, the testator made and executed a third codicil, by which he appointed as one of the executors the defendant Charles J. Hill in the place of Lucius H. Bangs, in consequence of the contemplated removal of the latter from Le Boy to Buffalo. By the thirteenth clause of the will power to sell and convey the real estate was given to the executors. By this third codicil such power was modified and explained, so as not to refer to or include the real estate or appurtenances thereto belonging which he had devised to the plaintiff in the eleventh clause of the will. On the 22d day of October, 1883, the fourth codicil was executed by the testator. He therein asserts that in the eleventh clause of his last will and testament, in relation to the household furniture, he intended to include all beds and bedding, earthen and glass ware, knives, forks, and spoons; in short, all articles belonging to or in use in the house. In the month of January, 1884, the testator had a conversation with Lucius H. Bangs, who had been his counsel in drawing the will and the first two codicils, and had been appointed one of the two executors therein, in which he told Mr. Bangs that he had made up his mind to make a provision for the plaintiff in addition to what he had made for her in his will; that the rate of interest had fallen from what it used to be, and that he had made up his mind to give her about $2,000 in addition tó the provision for her in his will; that she had been very faithful in his household, and the provision in his will would be less valuable than when he made it. In the month of June of that year the testator handed the bond and mortgage to the defendant, and requested him to draw an assignment thereof to the plaintiff, and, as the referee finds, “said something about his intention to give Libbie that.”
Such are the conclusions, in substance, reached by the learned referee upon the questions of fact which, in this appeal, we have brought to bear primarily upon the question of the testator’s declaration of a trust. The referee, in his conclusions, has not stated the evidence too strongly in favor of the plaintiff. Indeed, in one aspect thereof, the findings could have been much more conclusive against the defendants; for the defendant Hill himself was called in his own behalf as a witness, and testified in substance, on examination by his own counsel, that a few days before the testator died he requested him to take possession of some papers, including the assignment of this bond and mortgage, and the bond and mortgage themselves, which was accordingly done; that the testator said something about his intention to give Libbie the assignment, and wanted him to take the papers home and draw it. The witness said in answer to this that he had an assignment of a bond and mortgage at home which the testator had given him, and he would use that as a model. As stated above, after the assignment had been prepared the papers were returned to the testator, who subsequently handed them to the defendant Hill,
In point of equity, and according to clear reasoning, the proposition is plain that he who assumes a confidential relation to another in any matter must, for the purpose of carrying out the wishes and making effective the intention of the other, be deemed to have acted according to his confidential instructions; and he cannot, either in his own behalf or in behalf of anybody else, be heard to dispute the obligation of the trust thus voluntarily assumed by him. Accordingly, we should treat this case as though Hill had, immediately after the death of the testator, actually delivered to the plaintiff these securities and the assignment thereof. The case is much stronger in favor of the plaintiff than is that of Martin v. Funk, 75 N. Y. 134, and the many cases there considered in the opinion bearing upon the general question. In the multitude of authorities it would be idle to cite any where the facts are materially different from those arising out of this case, but much instruction may be gleaned by the examination of Bunn v. Winthrop, 1 Johns. Ch. 329; Barry v. Lambert, 98 N. Y. 300; Schulter v. Bank, 117 N. Y. 125, 22 N. E. Rep. 572; Beaver v. Beaver, 117 N. Y. 421, 22 N. E. Rep. 940; Mabie v. Bailey, 95
Dwight, P. J., concurs. Lewis, J., dissents.
2 N. E. Rep. 464.
Code Civil Proc. § 835: “An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment. ”