Ahrens v. Jones

• Decision Date: 31 January 1902
• Citation: 62 N.E. 666,169 N.Y. 555
• Parties: AHRENS v. JONES.
• Court: New York Court of Appeals Court of Appeals

169 N.Y. 555

62 N.E. 666

AHRENS

v.JONES.

Court of Appeals of New York.

Jan. 31, 1902.

Appeal from supreme court, appellate division, First department.

Action by Edith M. Ahrens, by Annie H. Ahrens, her guardian ad litem, against Clara M. Jones. From a judgment in favor of defendant on an order of the appellate division (58 N. Y. Supp. 115) affirming a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

TRUSTEE EX MALEFICIO.

In prospect of death, and in order to equitably dispose of his property among those entitled to it, the grantor conveyed it to his wife upon her express promise that she would pay a specified sum to his grandchild. Held that, while the deed created no express trust, equity would declare the grantee a trustee ex maleficio, and compel her to turn over such sum to the grandchild.

James C. De La Mare, for appellant.

John R. Halsey, for respondent.

HAIGHT, J.

This action was brought to declare and enforce a lien upon real estate. The material facts alleged in the complaint are that one Harry Jones, late of the city of New York, on the 25th day of February, 1897, being sick and not expecting to live, and being desirous of disposing of his property before he died, conveyed certain premises, specifically described, to his two daughters, and also conveyed certain other premises, also specifically described, to the defendant, Clara M. Jones, his wife; that, at the time of the execution and delivery of the deed to his wife, it was expressly understood and agreed between them that as a part of the consideration of the same, and as a condition upon which the same was executed, the said Clara M. Jones should pay to the plaintiff and to one Price, the grandchildren of said Harry Jones, each the sum of $1,000, which several sums the defendant promised and agreed to pay to each of such grandchildren; that on the 27th day of May, 1897, Harry Jones died, leaving him surviving his widow, the defendant, two children, Annie H. Ahrens and Rosetta Wiley, and two grandchildren, Harry S. Price and the plaintiff, both under-age; that he owned no other real estate, and the execution and delivery of the deeds above set forth were intended by him, and so understood and agreed by the defendant, to be an equitable disposition of his property between his widow, his children, and grandchildren, and that the property conveyed to the defendant was of much greater value than the property conveyed to his two children, and that his widow has no other property; that since his death demand has been made upon the defendant to pay or secure to the plaintiff the sum of $1,000, but that the defendant has refused and neglected to pay or secure the same, and claims that she is under no obligation to fulfill her promise. Judgment is demanded that the sum of $1,000 be declared a lien upon the premises conveyed to the defendant, and that the premises be sold by and under the direction of the court, and out of the proceeds the plaintiff be paid the amount due and owing to her.

It is contended on behalf of the respondent (1) that the grandfather of the plaintiff owed her no duty-was under no obligation-to support her, and that none of the consideration for the deed proceeded from her; that there was no privity of contract between her and the defendant; and that the promise of the defendant does not bring her within the scope of the decision in Lawrence v. Fox, 20 N. Y. 268; (2) that there is no trust, express or implied, alleged in favor of the plaintiff; and (3) that the right to a lien for a part of the purchase price is personal to the vendor.

The complaint has been somewhat carelessly prepared, but upon demurrer all of the facts alleged, or that by reasonable and fair intendment may be implied, are deemed admitted; and it remains to be determined whether the plaintiff has any cause of action under the facts so alleged. Coatsworth v. Railway Co., 156 N. Y. 451, 51 N. E. 301.

The complaint, as we have seen, alleges that on the 25th day of February, 1897, the grantor, being sick and not expecting to live long, and being desirous of disposing of his property before he died, executed the conveyance to the defendant; that upon the delivery of the deed to her it was intended by him, and so understood and agreed by the defendant, to be an equitable disposition of his property between his widow, his two children, and his two grandchildren. It is therefore apparent that the deed was executed in contemplation of death, for the purpose of effecting a distribution of his property between the persons he deemed to be the proper objects of his bounty. The execution and delivery of the deed under such circumstances is analogous to a devise made by will, and is largely controlled by the rules of law applicable thereto. If the contention of the defendant is sound, the plaintiff has no remedy either at law or in equity. What, then, is the situation in which the defendant places herself? Her husband was sick and expecting to die. He was desirous of disposing of his property among the members of his family. She, in order to induce him to give her a deed of the premises in question, and as part of the consideration therefor, agreed with him to deliver to his two granddaughters $1,000 each. As soon as he died she refused to carry out her promise, and new insists that she is not liable thereon. She thus obtains the property, and refuses to perform her agreement. This is an attempt to perpetrate a fraud not only upon her husband, who was induced to make the gift to her by reason of her promise, but also upon the plaintiff, who, presumably, would have been otherwise provided for by her grandfather had it not been for the defendant's promise. It is true, there is no express trust created by the deed or by the promise made by the defendant; but, notwithstanding this, a court of equity is not bereft of power to act, for it may interpose to prevent a wrong, and for that purpose it may declare the grantee a trustee ex maleficio for the protection of the grantor's intended beneficiaries. Such a trust does not affect the deed, but acts upon the gift, as it reaches the possession of the grantee; and the foundation for the trust is that...