128 N.Y.S. 501 | N.Y. App. Div. | 1911
The plaintiff’s father, Gustave J. Wetzlar, died on the 8th day of November, 1898, leaving a last will and testament, which was admitted to probate by the Surrogate’s Court of the county of Hew York, whereby he devised and bequeathed one-third of his residuary estate, amounting to over $434,000, to trustees, and directed them to pay over one-half thereof to the plaintiff when he should attain the age of twenty-five years. The plaintiff’s grandmother, Charlotte Wetzlar, died in January, 1902, leaving a last will and testament, whereby she bequeathed to the plaintiff one-eighth of $100,000. The plaintiff became twenty-five years of age on August 23, 1908. On March 31, 1905, he executed two assign
The transactions involved are somewhat complicated, and it will be impossible, without unduly extending this opinion, to do more than refer to the salient features of the case which lead us to differ with the learned trial justice on the facts.
The said defendant undertook to establish its version of the transactions by the testimony of two of its officers, Charles H. Burr and Arthur W. Depue. Burr testified that the plaintiff proposed to sell what the witness called a $25,000 “ charge” on his interest in his father’s estate for $15,000, but that $14,000 was agz-eed upon as the purchase price; that the plaintiff “ got $14,000, no more and no less. Actual spot cash in place of a charge to the extent of $25,000 payable out of this estate when finally settled.” Depue testified that $14,000 was agreed upon as the purchase price of said $25,000 interest and that it was understood that said defendant was to borrow the money and pay the purchase price as soon as possible. Both Burr and Depue testified that it was understood that $5,000 of the purchase price was to be obtained from one Banes.
On March 31, 1905, the date of the earliest assignznents in question, the plaintiff znade his pz’omissory note for $5,000, payable to the oz-der of said Banes as trustee,, and to secure the payment thereof he executed azi assignment to said Banes of one-third of all his interest in his father’s estate. Burr testified that the services, for which the $2,500 assignment aforesaid was given, were the services of said defezidant in procuring and guaranteeing the repayment of that loan. On said March thirty-first said defendant
The fact that a policy of life insurance was procured at the expense of the plaintiff and assigned to the finance company, together with the fact that the assignments covered the plaintiff’s interest in his grandmother’s estate, strongly tends to prove that a loan, not a sale of a specified share of his interest in his father’s estate, was intended. The interests assigned were thus described : “ A certain part or portion to the amount or extent of- ($-), dollars, of all and every my estate, right, title and interest * * * in and to the residuary estate of the aforementioned Gustave J. Wetzlar, * * * and also in and to the said estate of the aforementioned Charlotte Wetzlar.” According to the defendant’s theory the plaintiff sold for $14,000 an interest in his share of his father’s estate to the extent of $25,000 payable in three years upon the contingency of his surviving, which contingency was eliminated so far as the vendee was concerned by an insurance for which the plaintiff paid the premiums; and to enable the vendee to borrow the purchase price the plaintiff made his note for $5,000 directly to the lender, secured by an additional assignment of one-third of all his interest in his father’s estate, and included in the assignment to his vendee his interest in his grand
Every time an assignment was executed by the plaintiff, Burr or Depue procured him to verify an affidavit'setting forth his interest in the said estates, that he had not transferred it, and that there were no liens or incumbrances thereon, and that it was made for the purpose of inducing the Hew York Finance Company to purchase a certain part of his interest. The learned trial justice was of the opinion that the plaintiff was concluded by those affidavits upon the proposition that the transactions were purchases, but the successful effort to complicate the transactions and the procurement .of affidavits in advance to support them have exactly the opposite effect to that intended. Legitimate transactions are conducted with more directness and without being bolstered up by affidavits. All of the surrounding circumstances tend to'corroborate the plaintiff. The story of Burr and Depue is demonstrably false. The documents themselves furnish strong internal evidence that they were mere covers for usurious loans, and even if there was a doubt as to whether the transaction was a purchase and sale ora loan, its unconscionable character should resolve that doubt in favor of a loan.
It remains to consider the claim of estoppel of the defendant Wood. She say's that she intrusted $12,000 to the said Grummey to invest for her; that she knew nothing about the $9,000 loan until after it was consummated. The claim of estoppel, therefore, depends upon whether Gmnmey made the loan as the agent for said defendant in reliance upon statements in the plaintiff’s affidavit to the effect that the transaction was a purchase and sale. Guminey was not produced as a witness. Our knowledge of what he knew about the transaction must be derived from the testimony of Burr, who say's he told Gmnmey all about it. If Burr explained
The judgments should be reversed and a new trial granted, with costs to abide the final award of costs.
Ing-raham, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgments reversed, new trials ordered, costs to abide final award of costs.