Nun v. Palmer

• Decision Date: 11 January 1916
• Citation: 216 N.Y. 603,111 N.E. 223
• Parties: GA NUN v. PALMER.
• Court: New York Court of Appeals Court of Appeals

216 N.Y. 603

111 N.E. 223

GA NUN

v.PALMER.

Court of Appeals of New York.

Jan. 11, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Mary F. Ga Nun, on behalf of herself and all other creditors, against Mary E. Palmer, individually and as executrix of the last will of Jane M. Sands, deceased. From a judgment of the Appellate Division (159 App. Div. 86,144 N. Y. Supp. 457), reversing a judgment for plaintiff and rendering judgment absolute for defendant, plaintiff appeals. Judgment, in so far as it dismissed the complaint, reversed, and new trial granted.

See, also, 161 App. Div. 882,145 N. Y. Supp. 1124; 202 N. Y. 483, 96 N. E. 99,36 L. R. A. (N. S.) 922.

Alton B. Parker and Charles Thaddeus Terry, both of New York City, for appellant.

George H. Taylor, Jr., of New York City, for respondent.

CARDOZO, J.

The plaintiff asserts that she is a creditor of Jane M. Sands, deceased, and that transfers in fraud of her rights as a creditor were made by the debtor during her life. Disaffirming the fraudulent transfers, she brings this action to set them aside (Personal Property Law [Cons. Laws, c. 41] § 19; Real Property Law [Cons. Laws, c. 50] § 268). Her position as a creditor is disputed; the intent to defraud her is denied. A judgment in her favor has been reversed by the Appellate Division, and her complaint dismissed.

In November, 1899, Jane M. Sands was over 70 years of age. She was unmarried and lived alone. She wished a companion to watch over her and tend her; and she found the desired companion in her cousin, the plaintiff. At that time the plaintiff was a dressmaker in Brewster, N. Y., with an established business. She gave up her business and went to live with Miss Sands in Brooklyn. They made an agreement which was put in writing, and it reads as follows:

‘Nov. 23, 1899.

‘I, Mary F. Ga Nun, do promise to care for Jane M. Sands, in sickness and health, so long as she lives.

‘I, Jane M. Sands, do promise to pay Mary F. Ga Nun $70 a month for the support of the house and her clothes so long as I live, and at my death she is to have $20,000 that she will find in the Safe Deposit in New York, and she is to take my keys and distribute the packages in the box as they are marked, and all my clothing and wearing apparel and silver (in short) everything in the house shall be Mary F. Ga Nun's.

[Signed] Jane M. Sands.

‘Louis W. Jensen

‘A. S. Leonard, M. D.

‘W. G. Bourne,

‘Witnesses.’

The two women lived together until May, 1900. Miss Sands then refused to live with the plaintiff longer, transferred her home to Poughkeepsie, and lived until her death in August, 1906, with a friend, Mary E. Palmer, who is the defendant here. On her death neither $20,000 nor any other sum was found in the safe deposit box in New York. She had given up the box when she abandoned the plaintiff. Her will gave Mrs. Palmer everything:

‘In case I leave any property undisposed of at the time of my decease, I give and devise same to Mary E. Palmer, and appoint her executor.’

The language of this gift suggests a purpose to dispose of the estate during life, and that purpose must have been fulfilled, for all that was left of the estate when Miss Sands died was a small quantity of jewelry of little or no value. Everything else had been transferred, and much, if not all, had come into the hands of Mrs. Palmer. There is testimony, and it is not contradicted, that at the time of the break with the plaintiff, a lawyer advised Miss Sands, in the presence of Mrs. Palmer, that a contract, unlike a will, could not be revoked, that property forming part of the estate at death must be applied in payment of debts, and that the only way to avoid that result was to give the property away during life. The plaintiff insists that the transfers to Mrs. Palmer were made as the product of that advice. She insists that they were made without consideration, and with fraudulent intent. In support of that charge, she has given testimony which satisfied the trial judge. He held Mrs. Palmer accountable for 75 shares of Union Pacific stock; for $15,000 of Union Pacific bonds, the proceeds of which were invested in part in real estate in Mount Vernon; and for 30 shares of stock of the Greenwich Trust Company. Mrs. Palmer's position is that some of this property never reached her hands, and that for whatever did come to her she gave value. She concedes that she received 75 shares of Union Pacific stock. She claims, however, that in return for this stock, she undertook by an agreement, not unlike the plaintiff's, to provide a home for a friend. In support of that claim she relies upon some testimony of her husband. She also concedes, though at one time she denied under oath, that she received 30 shares of Greenwich Trust Company stock, but she relies upon the recital ‘for value received’ in the assignment as some evidence that she paid for it. Strickland v. Henry, 175 N. Y. 372, 67 N. E. 611. She has not taken the stand herself, and if some elements of the transactions are obscure, we have no explanation from her lips to relieve the obscurity. The Appellate Division held, however, that the findings of fraud were against the weight of evidence. It held also that the writing signed by Miss Sands was not a contract for the payment of $20,000, but was in the nature of a specific legacy, and because there was no contract, that the action could not be maintained, and that the complaint should be dismissed.

[1][2][3] Whether there was a contract is the first question to be determined. The promise to pay the plaintiff $70 a month is conceded to be contractual. The defendant's argument is that the contract stops there, and that what follows is testamentary. That argument was accepted by the Appellate Division. The holding was:

‘That the contractual part of the instrument under consideration was limited to an obligation upon the part of plaintiff to care for Miss Sands ‘in sickness and health’ as long as she lived, and to an obligation upon the part of the latter to pay her $70 a month therefor, and that the remaining provisions of said instrument are testamentary in character.'

In that holding we are unable to concur. The promise that Miss Sands made is expressed in a single sentence. Its clauses are closely bound together. The promise extends to all of them. By the decision of the Appellate Division this single sentence, with its clauses united by the conjunction ‘and,’ has been split up into two elements. The first clause, it is said, is part of a contract; the second, part of an informal will. The first, it is said, gives rise to an irrevocable obligation; the second is the expression of a transitory purpose, which may be canceled overnight. We find no warrant for this dismemberment of the contract. On the one side we have the plaintiff's promise to care for Miss Sands during life; on the other, we have the promise of the reward for the service. There is nothing to show that one part of this reward was to be irrevocable, and that another was to be revocable. Each promise in its entirety is the consideration for the other. It makes no difference in such circumstances that part of the reward is payable after death. The character of the promise is not changed by the time fixed for its performance. Hegeman v. Moon, 131 N. Y. 462, 30 N. E. 487;Carnwright v. Gray, 127 N. Y. 92, 27 N. E. 835, 12 L. R. A. 845, 24 Am. St. Rep. 424; Robb v. Washington & Jefferson College, 185 N. Y. 485, 78 N. E. 359. It makes no difference that the reward may seem to be extravagant in amount. Unless there is fraud or undue influence, the inadequacy of the consideration does not destroy the obligation of the contract. Earl v. Peck, 64 N. Y. 596;Matter of Bradbury, 105 App. Div. 250, 255,93 N. Y. Supp. 418. It makes no difference that the contract is for the payment of a specific fund, to be found in a specific place. If the promisor has made away with the fund, she must answer for the breach by the payment of an equal sum as damages. N. Y. News Publishing Co. v. Nat. Steamship Co., 148 N. Y. 39, 42 N. E. 514;Simon v. Etgen, 213 N. Y. 589, 107 N. E. 1066. The canon of construction, which prefers the meaning that will sustain rather than one that will defeat an instrument, reinforces these conclusions. Treat the promise as testamentary, and it is not effective for any purpose; there is no suggestion that the writing was executed with the formalities requisite for wills. Treat it as contractual and it is precisely adapted to the attainment of the end in view. In fine we discover in this writing all the elements of a valid contract, and we are not at liberty, for the purpose of destroying its validity, to construe it as anything else. We think that this court looked upon the promise as contractual when the case was here on an earlier appeal. 202 N. Y. 483, 96 N. E. 99,36 L. R. A. (N. S.) 922. But...