Pease v. Egan

• Decision Date: 01 March 1892
• Citation: 131 N.Y. 262,30 N.E. 102
• Parties: PEASE v. EGAN.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 262

30 N.E. 102

PEASE

v.EGAN.

Court of Appeals of New York.

March 1, 1892.

Appeal from supreme court, general term, first department.

Action by Charles G. Pease, executor of Clara E. Pease, deceased, against Clara M. Egan, executrix of John Egan, deceased. Defendant obtained judgment, which was affirmed by the general term. Plaintiff appeals. Reversed.

Glover, Sweezy & Glover, (Richard L. Sweezy, of counsel,) for appellant.

Amasa A. Redfield, for respondent.

The other facts fully appear in the following statement by PECKHAM, J.:

John Egan, a resident of the city of New York, died on the 1st day of May, 1875, leaving, him surviving, his widow, Clara M. Egan, one of the defendants herein, and two children, Clara E. and William G. Egan. He left a will, which was duly admitted to probate, and letters testamentary issued thereon to the widow. At the time of his decease he was the owner of a house and lot in the city of New York, which was subject to a mortgage made by the testator and his wife to secure the payment of $18,000. The mortgage became due on the 23d day of April, 1877. The son of the testator was born in 1851, and the daughter in 1855, and hence were, at the time of the death of their father, 24 and 20 years of age, respectively, and, when the mortgage became due, both had attained their majority. By the terms of the will the real estate of the testator was devised to his executor in trust to rent the same, and, after the payment of taxes, assessments, and necessary repairs and expenses, to pay one-third of the remaining income to the wife of the testator, and to apply the residue to the maintenance and education of his children, (after deducting a small annuity to be paid his sister,) until the youngest should attain the age of 21, and until the real estate should be sold, as thereinafter directed. If there were a surplus of this portion of the income from the real estate arising during the minority of his children after their support and education were provided for, it was to be invested and accumulated for them, and paid to them upon their reaching the age of 21, together with all the personal property owned by the testator, and not included in a small bequest to his wife. Upon the death of his wife, and the attainment by his youngest child of the age of 21 years, the executors were directed to sell and convey the real estate, and give the proceeds equally to his children. If all his children attained the age of 21 years before the death of his wife, his executors were invested with power to sell the real estate before her death, provided she should consent thereto, and she and her children should make some satisfactory arrangement securing to her the payment of an annuity equal in value to the portion of the rents and income of the realty already directed to be paid her in lieu of dower. If any of his children died before the time appointed for the sale and distribution of his real estate, and should have legal issue, such issue was to take its parent's share. If any child died without issue during his wife's life, or before the sale and distribution of his estate should have been made, and should leave a brother or sister, or the issue of a brother or sister, surviving him or her, then such share of the child so dying was to go to the surviving brother or sister, and the issue of any deceased brother or sister. These are all the provisions of the will which are material here. When the mortgage became due, in May, 1877, the widow, with the consent of both children, applied $18,000 of the personal property left by the testator to the payment of the mortgage, which was thereupon satisfied of record. Subsequent to the payment of the mortgage, the widow filed an account of her proceedings as executrix with the surrogate, which contained a statement of the payment of the mortgage with the personal estate to the extent of the $18,000, and she asked credit therefor in her account. The son and daughter consented to the passing of the account, and signed a written consent and waiver of further notice. After the decree of the surrogate establishing such account, the daughter married the plaintiff, and then made a motion to open the decree, which was denied. The court found there was no evidence that the daughter did not consent to the decree with full knowledge of the contents of her father's will in regard to her interest in his estate. The daughter subsequently died without issue, leaving a will, by which she gave all her property to the plaintiff, her husband, and named him executor. The will was duly proved, and letters testamentary issued thereon to the plaintiff. At the time of the daughter's death she left her brother surviving her. The plaintiff, after the death of his wife, commenced this action against the widow and the son of the testator, Egan, and asked that the original mortgage for $18,000 upon the premises owned by the testator at the time of his death might be foreclosed and the premises sold, and the moneys arising from such sale might be brought into court, and the plaintiff paid thereout the sum of $9,000, and interest from May 1, 1883. The plaintiff in effect asked to be subrogated to the right of the original mortgagee before the payment of the mortgage, which in equity should be regarded as assigned to him, as executor of his wife, by the mortgagee. After the commencement of this action the son died, leaving a widow and one child. He left a will of which his widow was named executrix, and the same was proved and letters duly issued thereon to her. The child was an infant under the age of 14 years. Upon supplemental complaint the son's widow and his child were made parties to the action, and they came in and defended the same,-the infant by her guardian ad litem, who submitted her rights and interests to the protection of the court.

PECKHAM, J., ( after stating the facts.)

The plaintiff's complaint has been dismissed in the courts below for the reason, as stated, that no case for subrogation had been made out, although the special and general terms arrived at this result by different, and to some extent opposing, views as to the construction of the testator's will. We think the construction adopted by the general term is the true one. The children, under this will, took an absolute title to the personal property of the testator (excepting a small portion bequeathed to the widow) upon their reaching the age of 21 years. This was not the case with the real estate. After the children arrived at the age of 21 years the trustee was authorized to sell, provided the widow consented, and an arrangement could be agreed upon respecting the payment of an annuity. This worked no equitable conversion of realty into personalty until an actual sale took place. None did take place. The title to the real estate remained in the trustee until it should be sold, and if a child died without issue before the death of the mother, and before any sale, the share which would otherwise have gone to such child or its issue upon the mother's death, and the subsequentsale and distribution of the proceeds of the real estate, went to the surviving brother or sister. The sister did die in the life-time of the mother, without issue, and before any sale or distribution of the proceeds of the real estate. The share of the sister in such realty or its proceeds, upon her death without issue, passed to her brother by virtue of the will of the testator. Upon these facts the rights of the parties must be determined. At the time when the mortgage for $18,000 was paid by the widow and executrix from the personal estate left by the testator, the son and daughter, having arrived at the age of 21 years, were the absolute owners of that estate. The money was taken from that estate by their mother, the executrix, with their knowledge and consent, and for the purpose of paying the mortgage on the real property. It is a fact that was admitted upon the trial of the action that the condition of the real estate market in 1877 (the time when the mortgage was paid) was such that real property could not be disposed of except at great loss. In the answer of the adult defendants it was...