Mahaney v. Carry

• Decision Date: 25 June 1903
• Citation: 67 N.E. 903,175 N.Y. 454
• Parties: MAHANEY v. CARRY et al.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 454

67 N.E. 903

MAHANEY

v.CARRY et al.

Court of Appeals of New York.

June 25, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Catharine Mahaney against Margaret Carr and others. From a judgment of the Appellate Division (74 N. Y. Supp. 1136) affirming a judgment for plaintiff, defendant Carr appeals. Reversed.

Edward R. O'Malley, for appellant.

Wallace Thayer, for respondent.

O'BRIEN, J.

This action was in form an action for specific performance, and resulted in a judgment for the plaintiff, which has been unanimously affirmed. There are two questions still open for review in this court, and these questions are, first, whether the findings of fact sustain the judgment; and, second, whether there was error of law committed by the learned trial judge in the rulings and decisions in the course of the trial to which exceptions were taken. The review of the case in this court must therefore be confined to those two general questions.

The plaintiff is the granddaughter of one Joseph Carr, who died on the 18th of April, 1898, leaving a will in which he disposed of all of his property. He made some small bequests, and then gave the rest, residue, and remainder to the defendant Margaret Carr, his widow by a second marriage. The will was duly proved, and the executor took charge of the estate. The deceased during his lifetime conveyed and transferred to his wife certain real estate and personal property by way of gift, but the amount of property that she received under these transfers or under the will does not appear. The plaintiff's mother was the daughter of Joseph Carr, and she died in the year 1876, when the plaintiff was about five years old. Carr had three other children that survived the plaintiff's mother, and are still alive. In the year 1891 the plaintiff's grandmother, Carr's first wife, died, and subsequently he married the defendant Margaret Carr.

The judgment in this case rests entirely upon the following finding of fact: ‘That the plaintiff is the daughter of James Connelly, and that prior to, and until about the month of April, [175 N.Y. 457]1876, the plaintiff lived with her said father as his daughter; that during or about the month of April, 1876, plaintiff's said father, James Connelly, in behalf of this plaintiff, entered into a contract with Joseph Carr, deceased, the grandfather of this plaintiff, in and by which plaintiff's said father, James Connelly, surrendered to said Joseph Carr, deceased, all rights in and to the plaintiff as his daughter, and permitted said Joseph Carr, deceased, to adopt the plaintiff as the daughter of said Joseph Carr, deceased, and to take her as his child, take his name, and have the sole benefit of the plaintiff's society, services, and earnings, in consideration for which said Joseph Carr, deceased, agreed with said James Connelly, in behalf of the plaintiff, that said Joseph Carr, deceased, should gave this plaintiff a child's share of his property upon his death, to wit, a one-fourth interest in all the real and personal property which said Joseph Carr, deceased, should thereafter acquire.’

It does not appear from the finding that the alleged contract was in writing, and upon the argument in this court the learned counsel for the plaintiff treated it as entirely oral. It must certainly be permissible to look into the record for the history of the transaction, and in order to ascertain the true scope and meaning of the finding, and then it is very easy to see what took place. The plaintiff's mother had just died, and she was a child five years old, very much in need of the care and attention of some relative who had an interest in her future welfare. Her grandfather and grandmother became her natural protectors, and assumed towards her the duties of parents. They brought her up and educated her in a manner that was much above their station in life, since it appears that both her parents and grandparents were people in very humble circumstances. She became a teacher in the schools, and is now married. It is quite likely that her own merits and industry contributed to her success. We are bound to assume that she performed all the duties of a daughter in the household of her grandfather, and at the same time it is quite apparent that she was fortunate in finding so good a home.

The finding of fact described a case or a transaction that must occur almost every day, or at least is a very common event in the domestic relations, but the learned courts below have attributed to the facts found legal consequences that are far reaching and of the most momentous importance. It has been held that, from the time that the deceased took this child under the arrangement found, he became disabled from transferring or disposing of his property, since all such conveyances and transfers, even to his wife, have been held to be null and void as to the plaintiff. It has been held that the grandfather's will, in which he attempted to dispose of his property for the support and benefit of his widow, is also null and void as to the plaintiff, and generally that the plaintiff, by means of this simple transaction, when she was five years old, secured legal rights against her grandfather and his property that overreach and override all future conveyances, transfers, gifts, or testamentary dispositions of the same by him. From the time that the grandfather took this child into his house his right of future disposition of his property, which all men generally possess, became limited and restricted. These are the conclusions to be deducted from the judgment in this case. And yet no one has attempted, so far as I can see, to classify the transaction described in the finding among the various methods for the transmission or devolution of property. It certainly is not a testamentary disposition, since that must be in writing, executed with all the statutory formalities. It is not a conveyance or transfer in praesenti of any property whatever. If it had the effect attributed to it by the judgment, it was more potential and effective than any testamentary disposition could be, since such dispositions are always ambulatory and subject to revocation. It was not an executory contract for the future conveyance or transfer of any specific property. It could not take effect until the death of the grandfather, and during his life he was not in default with respect to it; and yet this anomalous arrangement was, according to the judgment in this case, effective enough in law to nullify the gifts and conveyances made by the grandfather in his lifetime to his wife, and the provisions of his will that took effect upon his death. The deceased...