Weinstein v. Weber

• Citation: 70 N.E. 115,178 N.Y. 94
• Parties: WEINSTEIN v. WEBER.
• Decision Date: 15 March 1904
• Court: New York Court of Appeals

178 N.Y. 94

70 N.E. 115

WEINSTEIN

v.WEBER.

Court of Appeals of New York.

March 15, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Rachel Weinstein against Joseph Weber. From a judgment of the Appellate Division (81 N. Y. Supp. 62) affirming a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff sued to compel the defendant specifically to perform his agreement to convey a clear title to certain real estate, as demanded by the terms of a contract between them, or for the recovery back of the moneys paid by plaintiff upon the contract. The objection had been made to the title of the defendant that it was defective and unmarketable. The source of the title was in Adolphus Brown, to whom and to Felix Brown, his brother, simpliciter conveyances covering the premises in question had been made, as tenants in common. Adolphus Brown died in 1875, leaving a widow, Walli Brown, formerly Walli Goetz, and three minor children, between whom his will disposed of his residuary estate by the following clauses, viz.:

‘First. I give, devise and bequeath unto my friend, Walli Goetz, all my furniture and household articles, and also one-third of the rest, residue and remainder of my estate, real as well as personal, to have and to hold the same unto her during her lifetime, and after her death to be divided in such a manner that two-thirds thereof shall go to her children, and one-third thereof to my children. I expressly provide however, that my said friend shall have possession of the property so given, devised and bequeathed to her, and be entirely free in administration of the same, with full power to sell and dispose of the same, or any part thereof, and shall not be required to give any security whatever.

‘Secondly. I give, devise and bequeath the remaining two-thirds of all the rest, residue and remainder of my property, real as well as personal, to my children, to be divided between them, share and share alike; and I hereby provide that the property hereby devised or bequeathed to my children shall be converted into money, and the share of each child be safely invested in good security during his or her minority, and the interest or income derived therefrom to be applied to the education and maintenance of my said children until they have become of age respectively.’

The will was proved as a will of personal property, only, and in 1876 the executors undertook to convey to Felix Brown the undivided interest in the premises owned by their testator, and it is out of the deed, which was delivered, that the difficulty in the defendant's title has arisen. Walli Goetz, named as a residuary legatee, in the will, subsequently to its execution married the testator, and, with her two children by a former marriage, survived him. She had no children by marriage with Brown. One of her children, a daughter, is still living, as Mrs. Bain, and Max Goetz, the other, died before his mother, leaving a daughter named Julia, a minor. Mrs. Brown died in 1897. Upon the deed of the executors to Felix Brown were indorsed the following instruments:

‘Know all men by these presents, that I, Walli Brown, widow of Adolphus Brown, deceased, in consideration of fifteen hundred dollars to me paid by the within named Felix Brown, do grant, remise, release and quitclaim unto the said Felix Brown all my right, title, interest and dower in and to the within described premises. In witness whereof I have hereunto set my hand and seal this ___ day of June, in the year one thousand eight hundred and seventy-six. Walli Brown. [L. S.] Signed, sealed and delivered in the presence of Louis A. Wagner.

‘State of New York, City and County of New York, ss. On this 16th day of June, 1876, before me personally came Walli Brown, widow, to me known and known to me to be the person described in and who executed the foregoing release of dower, and to me acknowledged that she executed the same. Louis A. Wagner, Notary Public, Kings Co., N. Y.’

At a date subsequent to the execution and delivery of this deed, the three children of the testator, Adolphus Brown, executed to the grantee, Felix Brown, conveyances of their interests in the premises, and he thereafter conveyed to this defendant. After this last conveyance, and at the time of the trial of this action, the defendant received from Mrs. Bain, the daughter mentioned of Walli Goetz, a release of her interest in the premises affected. That still left outstanding what interest may be in Julia, the daughter of Max, the son of Walli Goetz, mentioned as having predeceased her. It was held by the trial court that Max Goetz became vested upon the death of Adolphus Brown with one undivided half part of the remainder in two-ninths of the premises, after the expiration of the widow's life estate, and, as the defendant had never obtained a release of that interest from Max's daughter and heir at law, Julia, that his title is, to that extent,...