Johnston v. Spicer

• Decision Date: 18 October 1887
• Citation: 13 N.E. 753,107 N.Y. 185
• Parties: JOHNSTON v. SPICER and others.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 185

13 N.E. 753

JOHNSTON

v.SPICER and others.

Court of Appeals of New York.

October 18, 1887.

Edward F. Brown, for Henry Spicer and others, appellants.

Chas. De Kay Townsend, for Francis Spicer and Emeline A. Scarff, respondents.

RUGER, C. J.

The controversy in this case arises among the heirs of one George Spicer over the distribution of surplus moneys accruing from a sale of lands under a mortgage foreclosure, and depends for its settlement mainly upon the effect to be given to a contract made between Spicer and one Ellen Donnagha on June 29, 1847, in contemplation of their marriage. The appellants claim as legal heirs of George Spicer, and the respondents, who were also a portion of his heirs, claim the exclusive right to these moneys by virtue of a release from the state of the interest said to have accrued to it by escheat on the death of Ellen Spicer. The marriage contract was executed by George Spicer, as party of the first part, Ellen Donnagha, as party of the second part, and Peter Crawford, of the third part. The party of the second part thereby conveyed certain real and personal property to Crawford, in trust for her own use and benefit, and the contract then provided as follows: ‘It is hereby further covenanted and agreed that, in case of the decease of the party of the first part without leaving lawful issue by the contemplated marriage previous to the decease of the party of the second part, that then and in that case all of the real and personal property he may die possessed of shall belong to and be the property of the party of the second part; and that also, in case the party of the second part should die without having lawful issue by the said contemplated marriage, the property, both real and personal,shall belong to and be the property of the party of the first part, and the trustee shall by good and sufficient conveyance or conveyances assign the same to the said party of the first part.’ The parties subsequently married, but had no children. Spicer died, intestate, on July 1, 1884, seized of the lands out of which the surplus moneys arose, and leaving numerous heirs at law. His widow died in January following, intestate, and leaving no lawful heir.

Upon the theory that the marriage settlement established a right in the widow to such real estate which escheated to the state upon her death, the appellants procured the passage of chapter 377 of the Laws of 1885, the escheat bill already mentioned, and by reason of the interest thereby acquired assert an exclusive right to the surplus moneys in dispute. The referee and the special term sustained the claims of the state's grantees under the statute; but the general term reversed the orders awarding them the surplus moneys, and directed them to be distributed among all of the heirs at law of George Spicer, deceased. The theory upon which that court proceeded was that the marriage contract, so far as George Spicer's property was concerned, was designed to operate only upon a mere possibility which was not at common law the subject of a grant, and therefore no interest in the property passed under the contract to the widow, and none escheated to the state upon her death. It was assumed that a mere right of action to recover such land would not escheat upon the death of its owner, and therefore third persons would take no interest in the land by virtue of a grant thereof from the state.

We are inclined to the opinion that the general term erred in some respects in its view of the case, and that upon the death of George Spicer his widow became, by force of the marriage settlement, the equitable owner of the real estate, and upon her death, without heirs, her interest therein reverted to the state, though not technically by escheat. No express trust was created by the marriage contract; but a trust by implication in the property left by him arose upon the death of George Spicer in favor of his widow. The legal title which was vested in him descended to his heirs at his death by force of the statute of descents, and was held by them at the death of the widow. It did not vest in the widow by virtue of the contract under section 47 of the statute of uses and trusts, as that section is controlled by section 50, which provides that it shall not apply to trusts arising by implication of law. Neither was it affected by section 21, 3 Rev. St. (7th Ed.) 2213, as that relates only to the express trusts authorized by the statutes, and does not include such as are created by implication or intendment of law, and the descent of these lands would not therefore seem to be affected thereby. The property intended to be settled on the wife was such only as the settlor should die possessed of, and there would therefore seem to be some difficulty in treating the husband during his life-time as trustee for his wife, since he had an undoubted right of disposition of the property during that time, and the equitable right of the wife arose only upon his death. It would therefore seem that, upon the death of George Spicer, the legal title to his real estate descended to his heirs; but they held it as a naked trust merely for the equitable owner, and subject to her right to become vested with the title upon demand. Giddings v. Eastman, 5 Paige, 561;Wood v. Mather, 38 Barb. 479.

Antenuptial contracts, by which it is attempted to regulate and control the interest which each of the parties to the marriage shall take in the property of the other during coverture or after death, like dower, are favored by the courts, and will be enforced in equity according to the intention of the parties whenever the contingency provided by the contract arises. 2 Kent, Comm. 165; In re Young, 27 Hun, 54, affirmed, 92 N. Y. 235. No especial formality is requisite in such instruments; and, in order to effectuate the intentions of the parties, courts of equity will impose a trust upon the property agreed to be conveyed, commensurate with the obligations of the contract, or will decree its specific performance, and when such relief is inadequate or impracticable from the situation of the property or the character of the contract, will award damages for its breach. De Barante v. Gott, 6 Barb. 496;Peck v. Vandemark, 99 N. Y. 29; Pom. Eq. Jur. §§ 1297, 1403; Schouler, Dom. Rel. 263-266, et seq.; Pierce v. Pierce, 71 N. Y. 156.

It is entirely immaterial whether a trustee, to carry them into effect, has been appointed in the contracts or not, or whether the property agreed to be conveyed be then owned by the parties, or is expected to be subsequently acquired. If the contract is fair and reasonable, and such as it is lawful for the parties to make, and the rights of creditors or third persons have not intervened, it will be enforced in equity in such a manner as to accomplish the object which the parties had in view, without reference to the validity of the agreement at law. Blanchard v. Blood, 2 Barb. 354;De Barante v. Gott, 6 Barb. 496; Schouler, Dom. Rel., supra; Ath. Mar. Set. (London, 1813,) 58.

The rule as stated by Pomeroy, in his work on Equity Jurisprudence, is: ‘Among the agreements which the original common law treated as invalid irrespective of statutes, but which equity in the application of its conscientious principles regards as binding and enforces by granting its relief of specific performance, are the following: Agreements for the assignment or disposition of a possibility, expectancy, or hope of succession; agreements to assign things in action; executory agreements made between a man and a woman who afterwards marry, which then became absolutely void at common law, but which equity may specifically enforce against either the husband or wife at the suit of the other.’ Section 1297. See Stover v. Eycleshimer, 46 Barb. 84.

It is said in Bright, Husb. & W. 471 et seq.: ‘A jointure which has been agreed by the husband, before marriage, to be made upon his intended wife, will be good in equity, although it be not actually so settled, but is permitted to remain in articles, or upon the husband's covenant; for such a jointress, being a purchaser of the provision by the marriage, is entitled in that character to the aid and protection of a court of equity. Accordingly, such articles or covenant will be specifically performed.’ He further says that ‘in Tooke v. Hastings, 2 Vern. 97, where A. covenanted to settle lands of a certain value, and had no land at the time, but afterwards purchased land, it was held that that land should be liable. * * *’

The principle laid down by Lord REDESDALE is this: ‘That where a person acts for valuable consideration, as upon marriage, he is understood in equity to engage with the person with whom he is dealing to make the instrument as effectual as he is able; and whenever that is the case, there is nothing in any of the authorities to raise a doubt that it shall have effect, so far as the person executing it has the power; and where the nature of the instrument is contrary to what the power prescribes, but demonstrates an intent to charge, it shall have the operation of charging in that form which the power allows.’ ‘It follows, therefore, that however the intent be shown, if it be in writing, the court will, in aid of the intention, supply the defects in the mode of execution in favor of the jointress; so that, whether the intent to execute the power be by letter, memorandum, will, articles, or covenant, a court of equity will aid the jointress, and supply all omissions.’

In the case of De Barante v. Gott, supra, an antenuptial contract had been executed between the plaintiff, who resided in France, and his intended wife, living in New York, whereby it was provided that in case of the death of the wife without leaving children, all her personal estate should become vested in her husband, and the real estate of which she should die seized in the United States should be immediately sold, and the price thereof remitted to the...