Apgar v. Connell

This action was originally brought to set aside as against the plaintiff two conveyances of separate parcels of real estate executed by the plaintiff to the defendant, Ellen Connell, her mother, on the 6th day of November, 1905, and to recover one-sixth of the proceeds of a sale by the defendant of a third parcel of real estate embraced in the same deed subject to the dower right of the defendant therein, on the ground that the execution of the deed by the plaintiff was induced by false and fraudulent representations. The plaintiff recovered on the first trial; but on appeal to this court it was held that there was no evidence of fraud, and the judgment was reversed and a new trial granted. Apgar v. Connell, 150 App. Div. 424 , 134 N. Y. Supp. 1093 .

The theory of the plaintiff on the first trial was that her father died intestate seised of the premises in fee simple absolute, leaving a widow and six children him surviving, and that the heirs, on the assumption that the property descended to them subject to their mother’s right to dower, joined in the conveyances to her the fifth day after their father’s death. The day following the decision on the first trial, one of the plaintiff’s brothers found a will irt his father’s safe purporting to have been executed by the latter. The will was duly admitted to probate on the 8th day of February, 1912, and letters testamentary were issued thereon to the widow of the testator. After the reversal of the former judgment, the issues were again brought to trial without any change in the pleadings; but at the close of the evidence counsel for plaintiff moved to amend the pleadings to conform to the evidence by adding, after paragraph 3 thereof, paragraph 3a, as follows:

“That prior to, and at the time when the papers mentioned in paragraph 3 of the complaint were signed and acknowledged by the plaintiff, the defendant represented, or caused to be represented, to the plaintiff that she, the defendant, did not intend to deprive the plaintiff of her share in the estate of her father Patrick J. Connell, deceased, as heir at law and next of kin of said deceased, but simply wished to prevent the plaintiff’s husband, Melvin A. Apgar, from enjoying or controlling any part of plaintiff’s said share in the estate of said deceased, and that the purpose and effect of said papers, which the plaintiff signed, was to secure the plaintiff in the ultimate enjoyment of her said share in the estate of said deceased free from any control by her husband; and that the plaintiff, when she signed and acknowledged said papers, did not understand that the purpose and legal effect of said papers was to convey her said share in the estate of said deceased to the defendant absolutely. That since said papers were signed by the plaintiff, the defendant has claimed to be the absolute owner of plaintiff’s share in the estate of said deceased, under and by virtue of said papers. And also by adding an allegation to the complaint, that said deeds and said general release were never legally delivered to the defendant.”

Objection was interposed, but it was overruled, and the amendment was allowed. Counsel for the defendant thereupon moved to amend the answer by alleging as a separate defense the following:

“That on- or about the 4th day oí December, 1889, said Patrick J. Connell duly made and executed his last will and testament in writing, a copy of which is hereto annexed, and died in the city of New York on the 1st day of November, 1905. That on or about the 6th day of June, 1911, said will was presented for probate to one of the surrogates in the county of New York by the defendant, and such proceedings thereafter had that citations were issued, that the plaintiff herein filed objections to the probate of said will and hearings were had before the surrogate. That on or about the 7th day of February, 1912, said surrogate made a decision and a decree which was duly entered on the 8th day of February, 1912, admitting said will to probate as a will of real and personal property. That letters were duly issued, and said letters are still in full force and effect. That in and by said will the said Patrick J. Connell gave the plaintiff in this action the sum of one dollar only. This plaintiff has no interest whatever in the real estate of decedent and has no interest in said personal property except the amount of one dollar. At the time this action was brought and during the trial hereof, the defendant did not know the existence of said will and could not with reasonable diligence have discovered the existence of said will and testament, and that immediately after the death she caused a diligent search and, inquiry to be made for said will, but could not discover that he left one, and its discovery after the trial of the action was entirely by accident.”

Counsel for plaintiff objected to the allowance of the amendment, and stated that if the answer were amended as requested it would be necessary for the plaintiff to further amend the complaint by pleading that the will was suppressed as part of the conspiracy to defraud the plaintiff of her interest in the estate, and that defendant knew it. The court allowed all amendments as requested and received the will in evidence; but no further evidence was offered by either party.

By the will the premises in the conveyance of which to her mother the plaintiff joined were devised, together with a bequest and devise of all the residuary estate to the defendant, and to the brothers and sisters of the plaintiff. The only provision made for the plaintiff in the will is the following: “I give and bequeath one dollar to my daughter, Mary Apgar.” The will was executed on the 4th day of December, 1889. Shortly before that time the plaintiff eloped with a married man named Apgar, who married her after the death of his wife. This, however, estranged her father from her, and his attitude toward her did not change, although, unbeknown to him, she maintained friendly relations with the rest of the family.

On the last trial the court found that the execution of the deeds by the plaintiff was not induced by fraud; but found that at the time the deeds were executed it was understood between the defendant and all of the children that:

“The defendant was taking legal title to the property thereby conveyed for the benefit of all of the children equally, including the plaintiff, and said deeds and release were executed, delivered, and accepted with that understanding.”

The court also found that at that time the defendant did not intend to deprive the plaintiff of an equal share with the other children in her father’s estate and did not understand that the deeds were intended to convey the property to her absolutely free from any trust, and that, in fact, the deeds were not so intended; that plaintiff did not intend to convey by the deeds her share in her father’s estate “to the defendant absolutely, and to deprive herself absolutely of her share in said

The trial court found, among other things, as conclusions of law that equity and good conscience forbid that the defendant should be permitted to claim absolute title to the property; that the negotiations between the members of the family after the death of the testator which culminated in the execution and delivery of the deeds “constituted a family agreement which was intended to supersede, and did supersede, the said will”; that the family agreement was supported by a sufficient consideration; that the subsequent act of the defendant in conveying one parcel and appropriating the proceeds to her own use constituted inequitable and unconscientious conduct and justified “the intervention of a court of equity to prevent the abuse of such confidence by impressing upon the property and its proceeds an implied trust for the benefit of the plaintiff”; that the acquiescence by the defendant and the plaintiff’s brothers and sisters in the validity of the deeds for so long precludes them “from setting up the will at this time, even though they were not aware of its existence at the time the deeds and release were signed”; that the legal title to the two parcels not conveyed by the defendant was vested in her, but that she holds an undivided one-sixth thereof and an undivided one-sixth of the proceeds of the parcel sold “in trust for the plaintiff, subject to a life estate therein in favor of the defendant for the defendant’s lifetime”; and that plaintiff was entitled to judgment to that effect; and that defendant is entitled for life to the net rents, profits, and income of the plaintiff’s share therein, but has no right to sell the real estate, or to apply the personal property to her own use, or to dispose of the plaintiff’s share therein by will; and that upon the death of the defendant

The will was made some 16 years before the death of the testator and was never changed. Plaintiff was aware of its provisions and supposed at the time of' his death that it remained in force. She testified that, in response to a statement by her after his death with respect to her not having inherited from her father, one of her brothers informed her that the will had been destroyed. The testimony on the part of the defendant tends to show that it was supposed at that time that the will had been lost, and that it was not discovered until the day after the decision, as already stated. The plaintiff claims, however, that her brothers and sisters and the defendant knew that the will was in existence and suppressed it from her with a view to avoiding the family disgrace incident to the publication of her elopement, which would likely ensue in the event that she contested the will. The son who subsequently found the will had been in charge of his father’s business, which was conducting a saloon. He testified that the will was in his father’s safe, and that at one time on seeing his father examining it he suggested that it be destroyed, and that he afterwards had the impression that it had been lost. He subsequently found the will in the safe, although it is to be inferred from his testimony that it was in a different location and escaped his observation when he looked through the safe after his father’s death. It may well be that the defendant and her children, other than the plaintiff, had not sufficient ground for believing that the will had either been lost or destroyed, and that it was arranged to have the deeds executed with a view to avoiding a contest over the will, which is the view taken by the trial court. There is, however, no evidence that the plaintiff had any ground for contesting the will or threatened to contest it; and the reasonable inference is that the other children, who received an interest in their father’s estate, determined to relinquish it to their mother, and requested plaintiff, who had only a nominal interest and claimed no more, to join with them. They, doubtless, expected that their mother would on her death leave the property to them, and appear to have been willing to have the plaintiff included in the bounty of their mother, or they would not have given up' their vested right to her exclusion under the will. That, however, in no manner tends to impeach the will which limited the plaintiff to a nominal legacy. Nor can it be argued, in view of the finding of the trial court of the absence of fraud, that it would tend to render it probable that they conspired to perpetrate a fraud on the plaintiff.

[1-3] At the time the deeds were executed, the children all joined in a formal release of their rights and interests in the estate of their father to their mother. The trial court has found that the plaintiff

The learned counsel for the respondent endeavors to sustain the judgment on the theory that the evidence, in effect, shows a promise on the part of the defendant to hold the premises in trust for the children, and that a relation of trust and confidence existed between the plaintiff and the defendant, and therefore, under the authority of Goldsmith v. Goldsmith, 145 N. Y. 313 , 39 N. E. 1067 , Amherst College v. Rich, 151 N. Y. 282 , 45 N. E. 876 , 37 L. R. A. 305 , and Lafayette Street Church Society v. Norton, 202 N. Y. 379 , 95 N. E. 819 , 39 L. R. A. (N. S.) 906 , and kindred cases, a trust may be impressed upon the property in the hands of the defendant. The evidence, however, does not bring the case at bar within the doctrine of those decisions. At most, the evidence shows a misunderstanding on the part, of some of the grantors other than plaintiff, and perhaps on the part of the defendant with respect to the legal effect of the conveyances and release. The evidence on which the court made the findings with respect to the understanding between the children and their mother does not relate to facts. No writing was proved or interview given. The witnesses merely stated what their understanding with respect to the-effect of what they did was. The defendant, it is true, on cross-examination admitted that she testified on the former trial that:

“My idea was to get hold of the property and give it to her, so that I was-not going to take away her right, but simply keep it away from her husband.. That was the understanding under which I took these deeds. I would not-have taken these deeds under any other' understanding. I wanted to be fair. She is just the same to me as the rest. That was the understanding. My daughter had that idea, and I gave her that idea.”

Tlie defendant had another daughter who testified with respect to her understanding concerning the effect of the conveyances. It is-

These views require the reversal of findings Nos. 15, 16, and 17, and of all conclusions of law, and the insertion of a conclusion of law directing judgment for the dismissal of the complaint with costs, and the reversal of the judgment with costs to appellant to be taxed, and the entry of judgment dismissing the complaint upon the merits with costs. All concur. '