Culross v. Gibbons

• Decision Date: 20 January 1892
• Citation: 29 N.E. 839,130 N.Y. 447
• Parties: CULROSS v. GIBBONS et al.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 447

29 N.E. 839

CULROSS

v.GIBBONS et al.

Court of Appeals of New York,

Second Division.

Jan. 20, 1892.

Appeal from supreme court, general term, fifth department.

Action by Mary Culross against Arthur J. Gibbons and others. From a judgment of the general term affirming a judgment entered on the report of a referee, plaintiff appeals. Affirmed.

Eugene Van Voorhis, for appellant.

George F. Yeoman, for respondents.

PARKER. J.

By this suit in equity, it was sought to compel the defendant Arthur J. Gibbons to convey to the plaintiff certain real estate, the legal estate of which was vested in him under the following circumstances: Prior to the 13th of December, 1876, James R. Culross, the husband of the plaintiff, was the owner of the major portion of such real estate; and by deed of that date, in which his wife joined, he quitclaimed it to Thomas P. O'Kelley, an attorney at law. O'Kelley quitclaimed the same premises to the plaintiff by deed dated the 14th of the same month. The plaintiff, by deed of the same date, quitclaimed such premises to the defendant Arthur J. Gibbons; and Gibbons executed an instrument in writing, bearing date the 15th of the same month, in which it was declared that he held said premises upon certain trusts therein expressed. These several instruments were drafted by O'Kelley, subscribed at his office, acknowledged on the 15th day of December, 1876, and recorded in the proper county clerk's office at the same minute of time. At the time of the execution of these instruments, James R. Culross had a family, consisting of his wife and several children, among whom was his daughter Minnie, then as now the wife of the defendant Gibbons. Culross had become so irregular in his habits as to excite apprehension in the minds of several of the members of his family that he might squander his property, which was then of the value of about $40,000. These apprehensions were made known to Mr. Culross, to whom a wish was also expressed that he make some disposition of his property to the end that it might be saved from waste. He readily acquiesced in the suggestion, and the result was the execution of the instruments already referred to. In the deciaration executed by Gibbons it was declared that he held the premises in trust, the terms of which may be briefly stated as follows: (1) To collect the rents and profits of the real estate, and, after payment of taxes, insurance, and other liens, apply the balance to the support and maintenance of the plaintiff during her life. (2) In the event of her death before that of her husband, to apply such balance for his benefit during life. (3) After their deaths, and after paying all liens and incumbrances on the property, to divide the premises, or the avails thereof, within 18 months, equally between their children; the descendants of any deceased child to take his or her share. (4) Reserving to the trustee power to mortgage or otherwise dispose of the premises for the benefit of the trust. Immediately after the execution of the instrument drawn by O'Kelley, Gibbons took charge of the real estate and cared for the financial affairs of the business in which Mr. Culross was engaged. September 1, 1884. Gibbons purchased certain real estate on Ambrose street in the city of Rochester, paying a part of the consideration from the surplus income, and executing mortgages upon such property for the remainder. The title he took in his own name, and on the same day executed an instrument, in writing, purporting to enlarge the trust created December 15, 1876, so as to bring such property within it; and this instrument was also executed by the plaintiff and each of her children, except David J. Culross. Thereafter Gibbons managed the Ambrose-Street property, as he did the property first conveyed to him. Subsequently, and on the 8th of June, 1887, pursuant to a petition presented by Gibbons, all the parties to this action and the sons of the plaintiff (who have since assigned their interests to her) consenting, the court made an order declaring the allegations in the petition to be true, settling his accounts as trustee, removing him and relieving him from the trusts, and directing that he should not interfere further with the same, or either of them. On the same day, and on the application of the plaintiff, the court, by an order duly made, appointed Alexander B. Crooks ‘trustee of all the real estate described in said petition, with all the powers and duties contained in a certain declaration of trusts dated on the 15th day of December, 1876.’ It will be observed that, as a result of the orders of June 8th, Crooks became trustee in the place of Gibbons, removed, but the legal estate remained in him, and he was enjoined from further interference. As we have already remarked, the plaintiff seeks to have any trust that may have been created canceled, and the property restored to her. She assigns in support of her position the following grounds: (1) That the deed from her to Gibbons was fraudulently procured; (2) if it be otherwise determined, then that the trusts sought to be created are invalid; (3) if valid, then the trusts, having been created by the plaintiff and being voluntary, may be revoked, because the grantor did not understand that ...