Ward v. Ward

• Decision Date: 17 August 1904
• Citation: 131 F. 946
• Parties: WARD v.WARD et al. v. SAME. WARD et al.
• Court: U.S. District Court — Southern District of New York

131 F. 946

WARD v.WARD et al.

WARD et al. v. SAME.

United States Circuit Court, S.D. New York.

August 17, 1904

Henry M. Ward, for complainants.

William G. Wilson, for defendants Ward.

Allen W. Evarts, in pro. per.

COXE Circuit Judge (after stating the facts).

Henry H. Ward died August 27, 1872, leaving a will, executed July 31, 1872, whereby, after making a certain minor devises and bequests, he left all the rest, residue and remainder of his estate to his executors to hold during the life of his cousin Eliza Ann Partridge in trust, the income to be paid to her during her life. The will then proceeds as follows:

'Upon the termination of such trust by the death of said Eliza Ann Partridge, I give, devise and bequeath the capital of such trust estate, as the same shall then exist, unto my three cousins, William G. Ward, Charles H. Ward and John Ward, sons of my deceased uncle William G. Ward, in equal shares, in fee simple and absolutely, and to their heirs representatives and assigns forever; if, at such time of the termination of the trust, either of my said three cousins, William, Charles and John, shall be dead leaving issue who shall then be living, such issue shall take in his place, per stirpes and not per capita, absolutely, to the then survivors or survivor of my said three cousins William, Charles and John, and to the then surviving issue if any, of any of them who may have previously died, leaving issue surviving until such period, such issue to take by representation and per stirpes and not per capita, and only the share which their ancestor would have taken if he had survived the termination of the trust; and I give, devise and bequeath the capital of said trust estate, upon the termination of the trust by the death of my said cousin, Eliza Ann Partridge, in accordance with the foregoing provisions.'

Miss Partridge died September 19, 1902, John Ward died, intestate, August 9, 1896, without issue, his brothers William and Charles being his only heirs at law and next of kin. He left title available property, hardly enough to pay his debts. William G. Ward, a widower, died, intestate, January 16, 1901, leaving as his sole surviving issue his two daughters, the defendants Maria E. G. McK. Ward and Caroline C. Ward. Charles H. Ward, the complainant, was the only survivor of the three cousins of the testator mentioned in the will. When, therefore, the trust terminated September 19, 1902, the persons entitled, under the terms of the will, to the capital of the trust estate were Charles H. Ward and the issue of William G. Ward-- Maria E. G. McK. Ward and Caroline C. Ward-- half going to the complainant and half to the defendants Ward; one-fourth to Maria E. G. McK. Ward and one-fourth to Caroline C. Ward. Charles E. Butler and the complainant were appointed executors and trustees under the will. Charles E. Butler died May 1, 1897. On September 1, 1897, the complainant having resigned as executor, Prescott Hall Butler was appointed trustee. He died in 1901, and the defendant Allen W. Evarts was appointed sole trustee or custodian of the trust funds.

The defendants insist that the complainant is not entitled to take under the will for the reason that all his interest in the estate, real and personal, was transferred to John Ward and that his sole interest in the estate is as heir at law and next of kin of John Ward. The transfer was accomplished in the following manner: On October 24, 1874, William G. Ward and Charles H. Ward, for the purpose of securing their indebtedness to the estate of Henry H. Ward, executed their bond to Charles E. Butler, as executor, in the sum of $50,000, conditioned for the payment of $25,000 and interest, and as security for the payment of this bond each, severally, gave a mortgage covering all his interest in the estate of Henry Hall Ward 'both real and personal of every kind and description whatsoever and wheresoever situated which belonged to the said Henry H. Ward deceased at the time of his death. ' These mortgages were duly foreclosed and the property was bid in by John Ward for $49,000, who received from the referee a deed covering all the real and personal property 'whereof Henry H. Ward died seised or possessed, and which constitutes a part of his residuary estate. ' This property is specifically described in the deed.

The court has not the slightest doubt that this mortgage was properly and regularly foreclosed after personal service of the summons upon Charles H. Ward and that he had general knowledge, at least, of the foreclosure and sale. To prove this it is only necessary to refer to two pieces of testimony.

First. On July 1, 1887, he wrote a note to the attorneys in the foreclosure suit, informing them that one of the defendants 'in the above suit * * * holds a judgment against another Charles H. Ward. ' This note is entitled in the foreclosure suit and imports knowledge by the writer of the character of the action.

Second. In an account of Charles E. Butler and Charles H. Ward, as executors, appears the following item:

'1888 January 23 Bond and Mortgage of John Ward, secured by premises covered by mortgages made by Charles H. Ward and William G. Ward foreclosed $25,000'

Over his own signature the complainant acknowledged that the had examined this account, found it to be correct and ratified and approved it. The failure to procure an order confirming the referee's report of sale does not invalidate the title of the purchaser at the sale who has paid the consideration and received the referee's deed. Peck v. Knickerbocker Ice Co., 18 Hun, 186; Fort v. Burch, 6 Barb. 76; Fuller v. Van Geesen, 4 Hill, 173. The fact that the mortgage covered both the realty and personalty belonging to the trust and was not filed, does not render it invalid as between the parties. Jones v. Graham, 77 N.Y. 628; Briggs v. Oliver, 68 N.Y. 336. The $49,000 bid at the sale was paid as follows: John Ward executed a bond for $25,000 principal, secured by a mortgage upon the interests which he had just acquired. There was a cash payment of $902.84 and the remainder, being for interest, which under the terms of the will belonged to Miss Partridge, was discharged by her acknowledgement of the receipt from Mr. Butler, as executor and trustee, of the sum of $23,156. On November 13, 1896, after the death of John Ward, William G. Ward conveyed and assigned to the defendants Maria E. G. McK. Ward and Caroline C. Ward 'all the share or shares, estate, right, title and interest whatsoever which the said William G. Ward now hath or at any time hereafter shall or may have or in any wise become entitled to have and receive, of, in or to any or all of the estate and property of every name, nature and description whatsoever, and wheresoever situated, which belonged to Henry H. Ward. ' On the same day William G. Ward executed an assignment to the said defendants of his share in the personal property which belonged to John Ward. William G. Ward was appointed administrator of John's estate and, on April 18, 1898, he, individually, and as administrator, and Charles H. Ward, entered into an agreement with Miss Partridge by which her claim against John, amounting, with interest, to $45,275, was adjusted by conveying to her certain real and personal property previously belonging to John, she releasing his estate and William and Charles Ward from all claims which she had against any of them by reason of the indebtedness of John.

The clause of the will above quoted provides that the gift to William, Charles and John shall take effect upon the termination of such trust by the death of Miss Partridge and that the property to be disposed of shall be the capital of the trust as it exists at the date of such death. If, prior to this date, either William, Charles or John shall die leaving issue, such issue shall take in his place per stirpes. This provision is applicable to the defendants, William, their father, having died before Miss Partridge. So far as they are concerned the situation is precisely as it would have been had the will mentioned them by name. William could transfer his own interest in the estate, but whether the party receiving the transfer realized anything or not depended upon the contingency of William outliving Miss Partridge. He could not by transferring his interest deprive his daughters of their interest, which vested in them absolutely at the death of Miss Partridge, provided their father had died previously.

The will further provides that if, at the death of Miss Partridge, either William, Charles or John shall be dead, leaving no issue, the share of the deceased shall go to the survivor or survivors. It seems plain, therefore, that neither of the cousins could touch a dollar of the estate until the trust was terminated by the death of the beneficiary. When that event took place, if all were living, each would take a third; if two were living each would take a half; and if but one survived he would take it all. As before stated, if nothing had occurred to disturb the status of the parties, the estate would have been divided equally; Charles taking one-half and the daughters of William one-half. But until the event occurred which made it possible to dispose of the residuary estate no vested interest was created but only an expectant contingent interest.

Was this interest alienable? The complainant insists that during the lifetime of Miss Partridge the disposition of the estate upon the termination of the trust was wholly conjectural William, Charles and John having mere possibilities that they would acquire interests if they were living when Miss Partridge died. Their interests, it is said, were neither descendible, divisible nor alienable; they could not be mortgaged and hence no...