Lingsweiler v. Hart

—I agree with Mr. Justice O’Brien that the interests of Mrs. Schoeneman in the real estate in question at the time of the conveyance was dependent upon the precedent life estate in her mother; that, by her death prior to her mother’s, her interest ceased, and her children took a vested estate in remainder under the will; and that this interest of Mrs. Schoeneman was alienable, though liable to be defeated by her death before the death of her mother, although I am of opinion that the remainder was contingent upon her surviving her mother, the intention of the testator clearly being to postpone the vesting of the estate until the death of the life tenant, for, by the will, the direction was that after the death of her mother the whole of said property, both real and personal, was to be divided and paid over equally among the testator’s children then surviving, or the issue of any children if any should die leaving issue, such issue to take a parent’s share. The estate granted, however, by either of the children of the testator during the lifetime of the mother, would be dependent upon such child’s surviving her mother; and, in case the child died before the mother, no estate could pass under such a conveyance. Upon the death, therefore, of Mrs. Schoeneman, the undivided sixth interest in the estate vested in her children, subject to the life estate of her mother; and the defendant Loeb, upon the happening of that contingency, was the owner in fee of but five-sixths of the real property described in the conveyance, the other one-sixth being vested in the children of Mrs. Schoeneman. As no estate vested in Mrs. Schoeneman, no estate passed by her deed to Loeb. Had she survived her mother, the remainder would then have vested, and, under the covenant of warranty in the deed, an estate would then have passed to Loeb, conveying her undivided one-sixth of the property of the testator; but, such interest never having vested, no estate passed under the deed of the one undivided one-sixth devised to her upon the death of her mother. It- is quite apparent from a consideration of the deeds and the bond and mortgage that the parties to this transaction correctly appreciated the situation, understood the effect upon Loeb’s title to

It is quite immaterial to the obligor just what disposition the obligees should make as between themselves of the amount that was due under the bond ; and we have to determine whether or not there was an express understanding or agreement as between the obligees as to the disposition that was to be made of such amount due, or, in the absence of an express agreement, whether the law implies an agreement as to the disposition, as between the obligees, that should be made of the amount due under the bond. As before stated, the sole consideration for the giving of this bond was the execution of the deed by the six children of the testator, which assumed to convey to Loeb the remainder of the property in question. The deed itself, when executed, conveyed no title to the premises. It did transfer whatever right the grantors had; and, upon the estate vesting in them by the death of their mother, it would, by estoppel, vest a valid title to the premises in the grantee, provided

Uo case exactly in point has been cited to us, but it seems that the principle established in the case of Pease v. Egan,

“ The daughter, in fact, has discharged a debt against another, and in the discharge did not act as a mere volunteer. This gives a right of subrogation. The fact that, if she had had an absolute interest in the property as devisee, she would have been "bound to pay the mortgage to the exoneration of the testator’s personal estate, does not make the mortgage debt her own. Whether she had any interest in its payment was based upon whether she was a devisee of the realty, and that was based upon a contingency which had not yet occurred ; and, when she paid the mortgage or some part thereof, she took the chance of paying a debt for which she was not responsible, in order to preserve an estate her interest in which was contingent. When the contingency subsequently occurred which proved that she had no interest in the property which she had aided in preserving, justice demanded that her estate, which has thus suffered, should be treated as if it had paid the debt of another.”

It seems to ipe that this condition exists in this case. These five surviving obligees to this bond have paid a portion of the debt of Mrs. Schoeneman’s which was due to Loeb by virtue of the breach of her covenant of title in the conveyance in question. That was not a voluntary payment, but was a payment by Loeb, deducted from the amount due to these obligees under the provisions of the bond, which were binding upon Mrs. Schoeneman. Thereby these five obligees became subrogated to the claim that Loeb had as against Mrs. Schoeneman to enforce the breach of her covenant of title, and thus became entitled to compel Mrs. Schoeneman’s children to make good to them the loss which they had sustained in consequence of Loeb’s enforcing the agreement to repay to him the amount due him from Mrs. Schoeneman in consequence of the breach of her covenant of title.

I think, therefore, that the judgment was right, and it should be affirmed, with costs.

YAN BRUNT, P. J., and WILLIAMS, and PATTERSON, JL, concur.

(dissenting).—There is no serious dispute about the facts, which are clearly and succinctly stated in the opinion of the learned judge at special term, as follows :

“ This is an action for the foreclosure of- a purchase-money mortgage. The property originally belonged to one Jacob Lingsweiler, who died in June, 1882, leaving a will, which was admitted to probate in August, 1882. By this will, he devised the premises in trust to his executors, to collect and receive the income, and, after paying the necessary expenses of the estate, to pay the remainder of said income to the widow during her lifetime, and upon her death the real and personal property was directed to be divided and paid over equally between his children named in said will, or the issue of said children if any should die leaving issue. The six children of Jacob Lingsweiler, with the widow, their mother, conveyed the premises to the defendant Loeb, by two deeds, each deed containing the usual full covenants. One of the deeds was dated May 10,1887, and was signed by the widow and the six children. After this deed ivas drawn, and before its delivery, on May 18, 1887, Frederick, one of the children, conveyed his share in the premises to his brother Charles. The deed of May 10th not being satisfactory to Loeb, as to its covenants, another deed, dated May 27, 1887,. was drawn; the covenants therein being not merely joint, as in the previous deeds, but joint and several. Frederick did not join in this deed, having already, as above stated, conveyed his interest to his brother Charles. The two deeds were then delivered to and accepted by Loeb ; and the mortgage and bond for $15,000 now in suit were given back to him. Julia Schoeneman, one of the heirs of Jacob Lingsweiler, died on the 17th, of November, 1888, during the lifetime of her mother; and her estate is represented in this action by the defendánt Ilart, who succeeded her executor on the resignation of the latter. The mother, Elizabeth Lingsweiler, died on the 15th of August, 1893. Mrs. Schoeneman, the daughter, left three children, who were of full age at the time of the trial, and who are parties to this action, in the bond for $15,000, executed by Loeb at the time of the delivery of the deeds aforesaid, the following provision was inserted": ‘ And in the event that the title to any share or interest in the sáid premises shall fail, the said Solomon Loeb, his heirs, executors, administrators, and assigns, may make such reasonable payment as shall acquire the share or interest which shall so fail, and the amount so paid shall constitute a credit upon the principal sum provided to be paid by this bond ; and in the event that the said Solomon Loeb, bis heirs, executors, administrators, and assigns, shall not acquire such share or interest by payment, the reasonable value thpreof shall constitute a credit upon the said principal sum, it being understood that any amount of which the said Solomon Loeb, his heirs, executors, administrators, or assigns, shall thus obtain the benefit, shall correspondingly reduce the liability of the said obligees on the covenants undertaken by them in their said

The legal questions presented are : (1) What, if any, was the interest of Julia Schoeneman in the property at the time she joined in the conveyance to Loeb ? (2) What was the interest of her children upon the death of the life tenant, she having died before that event % (3) Has Mr. Hart, as trustee or administrator of Mrs. Schoeneman, any interest in the unpaid $9,000 ? (4) Should he be required to pay to the plaintiffs the amounts by which their shares in the mortgage were diminished, by allowing a credit of $6,000 on the bond %

The two first of these questions involve a construction of the will of Jacob Lingsweiler. It will be noted that there is no gift made to the children, except by the direction to the trustees to divide and pay over the estate to the children on the death of the wife; and the rule applicable in such case is that the gift to the class includes only those of the class living at the time that the gift takes effect. The testator, apart, however, from any rule, expressly provided that it was only the children “ then” (i. e. at the death of his wife, Elizabeth) surviving among whom his estate should be distributed. The direction to the executors is to divide among the children then surviving, “ or issue of children, if any shall die leaving issue, such issue to take the parent’s share.”

In Re Baer, 147 N. Y. 348 , 69 S. R. 694, where the will directed the trustees to apply the rents, etc., to the use of the life tenant, “ and at her death to convey the remainder ‘ to the children and lawful heirs of my brother Harmon Hendricks, deceased, to share and share alike, per stirpes,’ ” the court said:

“ Where final division and distribution is to be made among a class, the benefits of the will are to be confined to those persons who come within the appropriate category at the date when the distribution or division ist directed to be made. * * * In such cases the gift is contingent upon survivorship, and, if it vests at all before the date of distribution, it is subject to be divested at the death before that time of a person presumptivély entitled to share in the distribution. While this rule is sometimes made to yield to indications of a contrary intent in the will, yet it may be said to be a general rule, and there is nothing to be found in the will in question to prevent its full application. Moreover, there are not in this devise any words of direct and immediate gift to the children or heirs of the brother, but a direction that the trustees should convey to them at a future time, on a certain contingency. They were to take through the medium of a power in trust, and the time of the vesting of the interest was thus deferred in form, at least,

See, also, Campbell v. Stokes, 142 N. Y. 23 , 58 S. R. 451.

It will thus be seen that the construction here given to the will is similar to that given to it by the learned trial judge, that Mrs. Schoeneman was vested with a remainder dependent upon the precedent life estate in her mother, and that, by her death prior to her mother’s, her interest ceased, and her children succeeded as remainder-men under the will. The estate, however, of Mrs. Schoeneman and of all the other children of Jacob Lingsweiler, of which they became possessed at the death of their father, was, nevertheless, an estate which belonged to them, and was none the less alienable, even though liable to be defeated by the death of any of them before the death of their mother. Sheridan v. House, * 43 N. Y. 569 ; Moore v. Little, 41 N. Y. 66 ; Woodgate v. Fleet, 44 N. Y. 1 ; Ham v. Van Orden, 84 N. Y. 257 ; Surdam v. Cornell, 116 N. Y. 305 ; 22 N. E. 450 . The complaint correctly alleges, therefore, that, under the will, the six children of Jacob Lingsweiler became vested with equal undivided remainders in fee in said premises, each undivided remainder being defeasible by the death of its owner before the death of Elizabeth Lingsweiler, the widow and life tenant; ££ that the interest of each child was alienable by such child ; that, being so vested with such estates in remainder, said six children, together with their mother, the said widow of "Jacob Lingsweiler, * * * by a written contract under their hands and seals, agreed with said Solomon Loeb to convey to him the said premises, for a consideration of $35,000 ” ; that, pursuant to this contract, they did execute and deliver two deeds purporting to convey the said premises to said Loeb, with the usual full covenants ; that by one deed they jointly covenanted, and by the second they jointly and severally covenanted, that they “ were lawfully seised in their own right of a good, absolute, and indefeasible estate of inheritance in fee simple of said premises,” and jointly and severally covenanted with said Loeb “ that they had good right, full power, and lawful authority to grant, bargain, sell, and convey said premises,” and jointly and severally covenanted with said Loeb “ that the said premises were free and clear of all former and other grants, titles, estates, and incumbrances,” and jointly and severally covenanted “ with said Loeb, in the usual form, and they would warrant and forever defend the said premises unto said Loeb, against all persons lawfully claiming the same.’ Beading these covenants in the light of the conditions inserted in the mortgage and bond, it is evident as to what was the intent of the

Having thus in view the situation of the parties to each other respectively, it .is not difficult to determine just what was the contract and the purpose of "these several instruments. Loeb wanted to purchase the property, and the others were willing to sell; but there was the one difficulty in the way, that, as the interest of any child was liable to be divested by his or her death before the life tenant, provision had to be made to protect Loeb for any amount that he might be obliged to pay to secure the interest so failing. And, as a result, we have the lease, the two deeds referred to, and the mortgage and bond, with similar provisions to protect Loeb, one of which extended the time for the payment of the principal of the mortgage until the death of the life tenant, when, only, it could be determined "who had an indefeasible estate in fee simple in these premises. This estate of the children of Jacob Lings weiler, which was a vested, alienable, future estate, and a separate and distinct interest from that of the contingent remaindermen* was what was purchased by the defendant Loeb, and conveyed to him by the two deeds. This estate the children had aright to sell, and Loeb to purchase; for, though it was but a future estate, whether vested or contingent, it was “ alienable in the same manner as an estate in possession.” 1 Rev. St. p. 722, etc.; 3 Rev. St. (Birdseye’s ed.) pp. 2525-2530, §§ 13, 35. Having, therefore, an estate or interest to sell, the consideration thereof, including the bond and mortgage, became at once the property of these six children.

Unquestionably, Loeb understood that he was not purchasing all the outstanding estates in the land, and that the children, one and all, understood that they were selling their own interest, and did not purport to sell, and could not sell, the interest of any contingent remainder-men, and hence the agreement in renard to the reduction of the mortgage. This agreement embouied in tho bond is that, in “ the event that the title to any share in said premises shall fail,” Loeb should make such reasonable payment as should be necessary to acquire a good title, and that the amount cf money so paid should be

The difficulty with this conclusion is that there is no evidence of any such agreement having been made between the parties, and the mortgage and bond are payable to all the children by name, respectively, and to “their executors, administrators, or assigns.” Moreover, the cash purchase money was paid to the children ; and it would be just as equitable for the estate of Mrs. Schoeneman to pay back to the others what she received of this cash as to take away from her estate the legal interest which she undoubtedly had in the bond and mortgage. What Loeb purchased and paid cash and gave a mortgage for was the estates which the children then had in the property; but having been undoubtedly advised of, and having in mind, the contingency of the death of one or more or all of these childern before their mother, provisions were inserted in the bond and mortgage, and covenants in the deed, which were intended to protect Loeb. He took the risk of the children dying, and bought all that he could then purchase, and gave therefor the cash and mortgage to those avEo sold him all they then had to sell. The latter then acquired, for the interests Avhicli they parted Avith, as good a legal title to the bond and mortgage as they did to the cash purchase money. The agreement between themselves Avas that they should all stand equahy, all receive an equal amount of the proceeds, all be equally interested in the mortgage, all be liable on the covenants in the deed, and that any reduction of that liablity should inure to the benefit of all. Such an agreement is not one A\rhich a court of equity Avould be Avarranted in setting aside, even though Ave conclude that it would have been fairer, in view of Avhat has transpired, if some proA'ision had been made by which, upon the death of one of the children, her interest in the mortgage should have ceased, and that the others should be entitled to be reimbursed for anjffhing that Loeb should be required to pay to secure the interest Avhich by death thus failed.

It is urged, hoAvever, that the covenants into AAdncli Mrs. Schoeneman entered Avith the others are sufficient to justify

In the principle invoked, it will be noted that it is applicable only to joint debtors in a case where it has become the duty of one to pay the entire debt, which is not this case; nor do we think the principle of subrogation applicable. The obligation, which was joint and several, was coricededly discharged by the payment of the $6,000; and it was provided in the bond that any payment so made should go in reduction of the liability, and inure to the benefit of all. After the purchase of the estate of the Schoeneman children, Loeb acquired perfect title, and he did this by purchasing from them at an agreed price; and there is therefore no liability of any one on these covenants of warranty. But, granting that such liability did exist, still the reduction of such liability is shared equally by all the children. The covenants in the deed, moreover, were to the defendant Loeb, his heirs and assigns, and were not covenants in favor of the co-covenantors, as against each other. Neither Loeb nor anyone claiming under or through him is here asking for the enforcement of any of these covenants, or claiming damages for any breach of them. The intent of making them joint and several was to enable Loeb, upon a breach, to recover against all jointly, or against any individual covenantor. This, however, does not make them

The same consideration that supports Mrs. Schoeneman’s title to the mortgage supports her title to the cash purchase money paid; and, if her estate is to be mulcted in damages by reason of her death and failure of title, she should not only be deprived of any interest in the mortgage, and pay what the others lost by reason of Loeb’s payment for the outstanding interest, but, by parity of reasoning, her estate should also be required to repay the proportion of the cash purchase price which she received upon the delivery of the deed. I think it improbable that Mrs. Schoeneman ever intended to enter into an agreement which would be fraught with such consequences to her estate. At the time the property was sold there were the interests of the life tenant and of the six children to be transferred. Assuming, for the purposes of calculation, that the interest of the life tenant in the cash purchase money of $20,000 then paid was $5,000, it would leave to be divided among the six children $2,500 apiece. If we could assume, therefore, that the contract was not to sell, for $2,500 and her interest in the mortgage, what she then had, but was an agreement by which she was to guaranty her co-covenantors for a failure to outlive the life tenant, then, as it has turned out, her estate would be entitled to no interest in the mortgage, and would be liable for $3,500, the difference between her interest of $2,500 in the mortgage and $6,000 which Loeb paid for the outstanding interest to her children, and, in addition, her estate would be liable for the cash purchase money which she re

Íremises, which was concededly a real one, was conveyed to .oeb, and for such interest Mrs. Schoeneman’s estate was not only to receive nothing, but, in addition, was to pay damages as the result of the transaction. That no such agreement in terms was made is conceded, nor can I see any way in which it can be implied from the documents which the parties used to effectuate their then intention; and it would be giving a forced and unreasonable construction to the covenants in the deed, in the light of what was intended to be effectuated between the parties, to hold that, by the transaction, it was intended that Mrs. Schoeneman was speculating upon her outliving the life tenant, and was not only wagering the interest which she then had in the property,- and which was valuable, —not only risking the increase wliich years might add to its value, and which had been conveyed to Loeb,-—but, in addition, she wagered that, if she did not survive, her estate was to pay the resulting damage. Such an assumption is much more inequitable and unreasonable than the one which I think was undoubtedly made, by which the parties sold their then interest for a consideration in which all participated, and from which all benefitted; and in which all assumed an equal liability.

To summarize, therefore, I think that, in selling to Loeb, Mrs. Schoeneman acquired an equal interest with the others, not only in the cash purchase money paid at the time, but also in the purchase money mortgage now in suit; and that the liability created by the covenants and the provisions of the bond was, by the agreement which they made, shared by all, and has been discharged by the payment of $6,000; that the covenants run to Loeb, his heirs and assigns, and were intended to protect him, and were not intended to protect one covenantor as against the others; that the theory and arguments advanced for holding Mrs. Schoeneman’s estate liable to make good to the others what they have lost by the payment of the $6,000 would be equally effectual in charging her estate for the cash purchase price which she received at the time of the delivery of the deeds to Loeb; and thence the conclusion would follow that, for an interest which she could sell and convey, she was not entitled to receive anything.

The decision is in the short, new form allowed by section 1022 of the Code of Civil Procedure, and although the general exception prescribed by that section was not taken, but specific exceptions to portions only of the decision, leaving material parts not excepted to, I think they were sufficient to raise the question as to the interest of Hart as trustee in the mortgage.

Having reached a different conclusion from the learned trial judge, the portions of the judgment appealed from should be reversed; and Hart, as administrator or trustee, should be