Barnard v. Gantz

• Decision Date: 28 November 1893
• Citation: 140 N.Y. 249,35 N.E. 430
• Parties: BARNARD v. GANTZ et al.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 249

35 N.E. 430

BARNARD

v.GANTZ et al.

Court of Appeals of New York.

Nov. 28, 1893.

Appeal from supreme court, general term, second department.

Action by John T. Barnard, as temporary administrator of Ann E. Crouse, against John F. Gantz and others. From a judgment of the general term (21 N. Y. Supp. 349) reversing a judgment entered on a referee's report, dismissing the complaint on the merits in an action originally brought by Ann. E. Crouse, and revived by her administrator, to reform a trust deed of her personal property by inserting in it a power of revocation, but which the administrator's supplemental complaint and amendment to the original complaint changed into an action to make an actual revocation effectual, defendants appeal. Affirmed.

Boothby & Warren, (L. E. Warren, of counsel,) for appellants.

George G. Barnard, (E. B. Barnum, of counsel,) for respondent.

O'BRIEN, J.

In this case the general term has reversed the judgment in favor of the defendants, entered upon the report of a referee, dismissing the complaint, upon questions of fact. It is therefore one of the cases where this court is authorized and required to review the facts. Code, § 1338. In order to sustain the reversal of the decision of the referee, it must appear that his findings are against the weight of evidence, or that the proofs so clearly preponderate in favor of a contrary result that it can be said with a reasonable degree of certainty that his conclusions were erroneous. Baird v. Mayor, etc., 96 N. Y. 567;Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. 1022;Devlin v. Bank, 125 N. Y. 756, 26 N. E. 744; Roosa v. Smith, 17 Hun, 138. There is practically no dispute in regard to the main facts upon which the plaintiff demanded relief. On the 24th of August, 1883, Ann E. Crouse, then 80 years of age, and being the owner of certain railroad bonds of the value of $33,000, executed and delivered to one Washington Hall, her son-in-law, who was, and for some time had been, her trusted and confidential financial adviser and agent, and to her son, the defendant John T. Gantz, an instrument under seal, called a ‘trust deed,’ by which she transferred to them the bonds mentioned, to have and to hold the same upon the following trust: To receive and collect the income arising therefrom, and pay the same over to her during the term of her natural life, and after her death to pay the income of $10,000 of the bonds to her son George H. Gantz during his natural life, and upon his death then to be distributed equally between the trustees to whom the transfer was made, or their legal representatives; to pay the income of $10,000 more of the bonds to her son Joseph W. Gantz during the term of his natural life, and upon his death to divide and distribute them equally to the trustees or their legal representatives. The balance of the bonds, amounting to $13,000, were to be delivered to Hall, or his legal representatives. The deed, upon its face, reserved no power of revocation in the settler. On February 8, 1885, Hall died, leaving a will in which the defendant Susan E. Hall was named as executrix; and on April 2, 1885, Mrs. Crouse, by another instrument, under seal and acknowledged, appointed the defendant Starkey trustee in her place. On the 13th day of July, 1890, she executed an instrument revoking, annulling, and declaring void the trust deed, and the appointment of Starkey as trustee. She then brought this action to reform the trust deed by inserting therein a power of revocation in order to conform to her intention, and that of all the parties, when it was executed. Subsequently, and on the 19th of June, 1891, while the action was pending, she died, leaving a will in which the plaintiff was named as one of the executors. He was subsequently appointed temporary administrator of her estate, and by an order of the court the action was revived and continued in his name upon a supplemental complaint which he was permitted to file and serve. The complaint stated all the facts, including the revocation of the deed and the appointment of the new trustee. The relief demanded was that the instrument be reformed as above specified, and that the trustees, Gantz and Starkey, deliver to the plaintiff the bonds, or any property substituted for them, and account and pay over to the plaintiff the income not previously paid to Mrs. Crouse in her lifetime, and for such other relief as might be just and equitable. The order of the court permitted the plaintiff to serve a supplemental summons and complaint ‘as he may be advised,’ and the allegations to the effect that the trust deed and appointment of Starkey to succeed Hall had been revoked by Mrs. Crouse, in her lifetime, were new, as no such allegations were inserted in the original pleading. As these allegations did not relate to matters which had transpired subsequent to the commencement of the action, it is doubtless true that they were not properly inserted in the supplemental pleading; but it does not appear that the defendants made any motion to correct it, and it does appear that upon the trial the plaintiff requested the referee to permit an amendment to the complaint by inserting the same allegations, and the request was granted, without any objection or exception. If this is still to be regarded as an action to reform the instrument so as to permit the power of revocation to be exercised, the death of the party who made the transfer would probably be an answer to it, as that power, if it was within the intention of the parties, was personal, and would not survive. But, as the pleadings now stand upon the record, the action may be regarded as one to meke an actual revocation of the two instruments by Mrs. Crouse, in her lifetime, effective, and to recover the property transferred. If it appears that the power to revoke should have been expressed in the instrument, a court of equity will now regard as done whatever the parties really intended, and which in good conscience should have been done, and thus the relief will be adapted to the exigencies of the case. Van Rensselaer v. Van Rensslaer, 113 N. Y. 208, 214,21 N. E. 75;Bell v. Merrifield, 107 N. Y. 202, 207,16 N. E. 55;Murtha v. Curley, 90 N. Y. 372;Valentine v. Richardt, 126 N. Y. 272, 27 N. E. 255; Code, § 1207.

The most important question, however arises upon the evidence which was before the referee, and upon which his judgment denying the relief sought was based. It cannot be said that his conclusion is not sustained by any evidence, so as to make the question before us one of law. But we think the...