disposition and worthless in the hands of the transferee seems to run counter to the progressive spirit of the law, the tendency of which is to limit the suspension of the power of alienation within as narrow bounds as possible.

In Ham v. Van Orden, 84 N. Y. 270, the interest of the property forming the substance of the legacy was to be paid to one Wessel during his life and upon his death without issue one-fourth to the plaintiff. The court says:

"In either case, she [the plaintiff] acquired an interest although the right to possession was postponed to a future period and depended upon the contingency of the death of Wessel without children. This did not prevent the creation of the estate, but rendered it liable to be defeated. It was an estate in expectancy, however, and could not be destroyed by any alienation or other act of Wessel or his trustee, and upon his death without children would become absolute in the plaintiff. It was therefore alienable by her to the same extent as if in possession, and whether it be deemed vested or contingent. These rules apply although the property involved is personal and not real." In Hennessy v. Patterson, 85 N. Y. 91, 103, the court says: "John Foley had something more than a mere possibility of acquiring an estate; he had the fixed, absolute right to have the estate if the contingency occurred. That right was conferred by the will of the testator, and vested in him at the instant of the latter's death. The devisee held it as a vested right, but such a right as the contingent and uncertain character of the devise created; nevertheless a fixed and vested right, which the Revised Statutes recognize as an estate, place in the category of expectant estates, and decree shall be descendible, and which, as we have already seen, was descendible even at common law. In his chapter on executory devises Washburn reminds us of the necessity of distinguishing between the vesting of a right to a future estate of freehold, the vesting of a freehold estate in interest, and the vesting of the same in possession.'

See, also, Moore v. Littel, 41 N. Y. 66; Kelso v. Lorrillard, 85 N. Y. 177.

If the foregoing conclusions be correct the proposition that the title which passed to John by the foreclosure sale was defeated by his death cannot be maintained. If Charles had sold his interest to A, a total stranger, it seems obvious that A's death would not have extinguished his interest and reinvested the title in Charles. It is plain that the interest was one that descended to A's heirs and next of kin and, on the death of Miss Partridge, vested in them the share in the estate which Charles would have taken if he had not parted with it. The legal effect of the death of John without issue. was to extinguish his own contingent interest in the trust estate, but not his title to the property purchased by him at the foreclosurethis, like any other property, was his to dispose of by conveyance or will as he saw fit, or by descent to his heirs and next of kin if undisposed of at his death.

The complainant contends further that even if John obtained title by virtue of the sale in foreclosure whatever title passed to him, and by descent from him to William and his daughters, was and is impressed with a trust in favor of the complainant. The entire transaction of the bond, the mortgages, the foreclosure and the sale seems inexplicable. If the amount bid at the sale had been paid in cash, the indebtedness to the trust discharged and the balance paid to Miss Partridge a sufficient reason would be disclosed. But

why so complicated and expensive a proceeding should have been carried through, the net result of which was to substitute the bond of John for the one of Charles and William it is difficult to understand. If Miss Partridge had given a receipt for past interest and a waiver of future interest before instead of after the foreclosure, it would seem that the result, so far as a benefit to the trust is concerned would have been the same. There must have been some good reason why she was unwilling to release Charles and William but willing to release John. The high character of the parties and the unquestioned professional standing of the counsel preclude the idea that there was anything unfair or questionable in the transaction. There must have been a reason and a good reason, but what that reason was the record fails to disclose. Mr. Butler died in 1897 and has left no word of explanation. In the absence of proof to the contrary it must be assumed that the transaction was a bona fide one. The court is not permitted to indulge in speculation as to the motive of the trustee or the object sought to be attained. It is suggested that Mr. Butler's intention was to preserve the trust for the benefit of the family by barring the claims of creditors. Several reasons are suggested against this explanation, one of which is that it was a most complex and inadequate remedy and one which would hardly have appealed to a lawyer of Mr. Butler's astuteness and ability. It is, however, enough to say that the suggestion is advanced simply as a "theory" and an "inference." If the acquisition of the title by John were a temporary arrangement merely it would seem that the complainant must have known it. Not only was there a failure to reduce such agreement to writing but there is no testimony from the complainant or any one else indicating that such was the intention. It is, indeed, strange that such elaborate machinery should have been set in motion to accomplish a definite purpose and no evidence left to establish that purpose. If the foreclosure had been undertaken for the advantage of William and Charles would the proceeding have terminated at a point distinctly prejudicial to their interests? Miss Partridge lived 15 years after the foreclosure, William 14 years, Mr. Butler 10 years and John 9 years, ample time, it would appear, in which to remove from the situation those elements of uncertainty which were sure to create confusion and, in all probability, work injustice to Charles. In other words, if a trust were intended there was every reason why its existence should have been made clear. The fact that no such proof is presented raises a strong presumption against the trust. Again, the complainant's brief says:

"Another theory by which we reach the same result is that in making the purchase in this way John was acting as the agent of Butler; that in reality the purchase was made by Butler as trustee. This is the real fact."

The court is unable to accept this view. The real fact is that the purchase was made by John. The proceeding operated to vest in him, not in Mr. Butler, the interests of Charles and William. Why this was done we may not know; that it was done admits of no doubt; the burden is on him who asserts the contrary to prove his contention. If John were living to-day can there be a doubt, upon the

present facts, that his title to the interest of Charles would be valid? John's title to William's share was defeated by the latter's death, but Charles survived Miss Partridge, his interest in the trust became vested and absolute and the title would have passed to him had he not parted with it 15 years before. John's interest as purchaser at the foreclosure sale did not lapse but passed to his heirs and personal representatives.

The defendants Ward do not inherit through their father, but under the following language of the will of Henry:

"If, at such time of the termination of the trust, either of my said three cousins, William, Charles and John, shall be dead leaving issue who shall then be living, such issue shall take in his place, per stirpes and not per capita, absolutely, and in fee simple, the shares of the capital of such trust estate, which he would have taken if living."

These defendants assert title to half of the interest sold to John on foreclosure as assignees and grantees of their father, who was one of the heirs of John, Charles being the other heir. It is argued by the complainant that the defendants are estopped in pais and of record from claiming any title by descent from their father by reason of his action on the death of John. This contention is based first upon a letter written November 11, 1896, by counsel for William to counsel for Charles, which contains this expression of opinion upon the question of law involved:

"On careful examination of the terms of the will of Henry H. Ward, I am satisfied that there is fair ground for claiming that the interests of William G., Charles H. and John Ward in the residuary estate of Henry H. Ward were not vested. But at the same time it is certainly more prudent to take such precautions as may be to protect all interests in case they should be held to be vested."

This is treated "as a representation of William and his counsel that John had no interest in the estate of Henry." The court cannot think that it bears this construction. There is here no concealment of fact; it is rather a mere impression, expressed tentatively, upon a proposition of law. Although the writer of the letter is inclined. to think that there is "a fair ground for claiming" that the interests of William and Charles did not pass to John his advice is to proceed upon the theory that they did so pass. Charles was represented by learned counsel and both knew all the facts. On the question of law there might well be a difference of opinion, but how Charles was misled or injured by the statements of the letter in question it is not easy to perceive. In June, 1897, an action was brought by Miss Partridge against Prescott Hall Butler, as executor of the will of Charles E. Butler, deceased, Charles H. Ward and others, praying that a suitable person be appointed trustee under the will of Henry H. Ward in the place of Butler and Charles, who is alleged to be in poor health and anxious to resign. It is said that this complaint alleges that Charles and William, by John's death, had become the persons entitled, if they survived, to John's share in the trust estate. This was true upon any view of the law, but it is said, because certain facts are not alleged that the complaint proceeds upon the theory that John took nothing by the foreclosure sale. There is here no element of an estoppel of record and the same is true of

the proceeding in the Surrogate's Court and in Smith v. Butler. During this entire controversy the facts upon which John Ward's title is based were as well known to one party as to the other, neither was misled, and the fact, if it be a fact, that counsel for complainant has changed his position as to the legal effect of the purchase by John is not material upon any of the issues involved.

In Brewster v. Striker, 2 N. Y. 41, it is said:

"But again, the alleged admission was not of a fact, but of a conclusion of law. The will itself, and the clauses it contains, are not, and never were, as matters of fact, in dispute; but the construction of those clauses, and the estate and interest taken by the devisees under them, upon which the controversy turns, are questions of law. The grandchildren, at the time of the partition, doubtless supposed the devise of the real estate to them to have the legal effect to vest in them the estate in equal shares, as tenants in common, in fee simple absolute, and on such erroneous supposition they acted in the partition they assumed to make. But could that mistake of the law be urged and used against either party, to estop him from afterwards claiming and asserting his rights under the true exposition of the will?"

This question was answered in the negative.

Every right which the complainant ever had to assert the invalidity of John's title he now possesses.

What has been said already disposes of the alleged agreement between counsel that William and Charles should not assert title through descent from John, but that they should take the position that their interests were not assignable and that the mortgages and foreclosure sale did not transfer the title to those interests. The burden is upon the complainant to establish this agreement and it cannot be said that this has been done in the face of the denial by counsel for defendants that such an agreement was made.

The court has looked in vain through the family history and the complicated transactions of the firm of Ward & Co. for a solution of this controversy. The relations between the brothers seem to have been of the most cordial and friendly nature and each seems to have been willing to make personal sacrifices to sustain the honor and business reputation of the family. Not only was this true of the brothers, but other members of the family seem to have been actuated by the same spirit until this unfortunate misunderstanding arose.

It is not thought necessary to decide, even were it possible to do so, who was responsible for the failure of the firm and the disasters which followed. The situation is so complicated, the meager accounts presented so inconsequential, the interests of the parties so complex-with rights crossing, recrossing, combining and separating at every stage-that it is impossible to draw any satisfactory deduction therefrom adverse to the conclusion which the law attributes to the undisputed acts of the parties.

The authorities cited in the defendants' brief seem to establish conclusively the proposition that the wife of Charles had no dower right in the property covered by the mortgage to Butler. Durando v. Durando, 23 N. Y. 331; House v. Jackson, 50 N. Y. 165; Clark v. Clark, 84 Hun, 362, 32 N. Y. Supp. 325.

There can be no impropriety in saying that the court entered upon the examination of this cause with the hope that a conclusion might

be reached which would permit the distribution of the estate in question according to the intention of the testator. But the obstacle in the path of such a result was the act of the complainant himself in transferring the title upon which his rights depended. Were all the parties to this transfer alive it might, perhaps, be explained in accordance with the theories which are now advanced; but the court has been compelled to the conclusion that the deliberate and solemn act by which Charles parted with his title cannot be overthrown by mere inference and presumption.

It follows that the defendants are entitled to a decree substantially as stated at the conclusion of their main brief.

It would seem that a settlement of the amount in the hands of the trustee might be reached by agreement, but if this should prove impossible a master will be appointed to pass the account.


(Circuit Court, E. D. New York. August 2, 1904.)


Defendant was president and trustee of a building association, and, in connection with other trustees, who were authorized to transact the business of the association, made a sale of real estate, which constituted its only property, to a trust company, of which he was also president and a large stockholder, in exchange for certain securities, which were of doubtful validity and value. A bond and mortgage, however, were taken from the trust company as a guaranty of the collection of the securities to the amount of the agreed price of the property, but by agreement the mortgage was not recorded. The trust company desiring to sell the property, defendant procured the passage of a resolution by the trustees of the building association authorizing the cancellation of the mortgage, and it was so canceled, without the knowledge or consent of the stockholders. The trust company was or became insolvent, and nothing was ever realized by the building association from the securities. Held, that the cancellation of the mortgage operated as a fraud upon the association, by depriving it of its only valid security, and rendered defendant individually liable for the price of the property, which liability could be enforced at the suit of a stockholder; the association having refused to bring the suit.

2. SAME.

Such suit could be maintained without first exhausting the remedy against the trust company, since the mortgage could have been similarly enforced

3. SAME.

Shortly after the securities were transferred to the association the trustees caused the loans to be called and the securities sold at auction, the purpose being to cut off outstanding equities. They were bid in for the association for a sum fixed by the trustees, which exceeded or equaled the price for which the real estate had been sold. Held, that such sale did not bind the association as to the value of the securities, as between it and the trust company, nor affect its right to enforce the bond and mortgage.

In Equity. Suit by stockholders.

Duncan & Duncan (Frederick S. Duncan, of counsel), for complain


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