Hill v. Heermans

Headnote

Appeal from a judgment in favor of the plaintiff, entered at the Steuben County Circuit on the verdict of a jury.

Mr. Eellows, an old man of great wealth, tired and oppressed with the care of his large estate, proposed to get relief to himself for the remaining period of his life by-trusting to the defendant the management of his property, with power, among other things, to sell the same and pay to him the proceeds, so far as such property was sold and converted into money during his lifetime ; and, with this view, executed two deeds of trust for such purpose, by which deeds he conveyed to the defendant in this action all his real and personal estate.

This action was brought by the plaintiff for the recovery of the possession of an oil painted portrait of Mr. Eellows, which plaintiff claimed Mr. Fellows had given to her, after the execution of the deeds above mentioned. The General Term held, that as Mr. Eellows would be entitled to the proceeds- of all sales of his property, he was clearly entitled to retain any of the articles of such property to himself, and convert them to his own use in lieu of the

money; and might forbid the sale of family pictures and furniture, including the portrait of himself, and give it to his sister this plaintiff, as well, and with as much right, as he might give her the proceeds of such portrait if it had been sold and converted into money. That it was not such property as he could ever have intended to sell or divert from his family; and that the charge of the judge at Circuit, that the picture did not pass by the trust deeds, was correct.

That it was not within the spirit and intent of said deeds to convey or pass such property, any more than it was to sell the watch in his pocket or the coat upon his back.