Opinion
May Term, 1897.
Judgment reversed, new trial granted, costs to appellant to abide event.
William Kain died January 21, 1863, leaving him surviving a widow and three children. By his last will and testament he gave his household furniture, plate, jewels and books to his wife. and the residue of his estate he devised and bequeathed to his three children in equal proportion. It appears that prior to his death the testator regretted that he had not so devised his property as that his widow should have shared equally with each of his children, but that, thereafter, there was no opportunity for him to make a new will. January 28, 1868, the plaintiff and the defendant conveyed to their mother one-third of their respective shares in the real estate devised to them by their father. A few days later, and on February 6, 1868, the plaintiff and defendant, by separate instruments, but each in the same form, conveyed to their mother in trust what remained of their interest in the real estate devised to them by their father. The mother accepted the trust, and continued to manage the property until her death in May, 1889. She left a will by which she devised to the plaintiff and defendant, who were her only children then living, all her real and personal estate. Afterwards, and about the 3d day of January, 1890, the plaintiff conveyed to the defendant, her right, title and interest in and to the stores known as Nos. 363, 365 and 367 Greenwich street and No. 181½ Franklin street, which is the property of which Wm. Kain died seized, and which was by him devised as we have described. While this conveyance was absolute on its face, the plaintiff alleges that it was given to the defendant in trust upon assurances by the defendant that she would reconvey the property to the plaintiff whenever requested. At the same time, but by a separate instrument, the plaintiff transferred to the defendant certain personal property which transfer she alleges was upon a like trust. This suit was brought for the purpose of obtaining a reconveyance of the real estate; an accounting by the defendant of the rents and income thereof; and also an accounting of the personal property and the income thereof. The complaint also prayed that the trust, created by the deeds of the plaintiff and defendant to their mother, dated February 6, 1868, be declared to have no legal or equitable effect on and after the death of their said mother. The defendant by her answer, admitted the making, execution and delivery, of the deed of January 3, 1890, and alleged that "The defendant is and ever has been, most anxious and desirous to account to the plaintiff, for the moneys received by her, and the defendant always has been and is now ready and willing to reconvey to the plaintiff whatever interest she may equitably have in said real estate, if any there may be, or make such other disposition of said real estate as to the court may seem proper." As is apparent, therefore, from the pleadings, there was no controversy upon the trial as to the demand of the plaintiff that the defendant should reconvey to her such interest as was acquired by the deed of January 3, 1890, after providing for payment to the defendant of such sum of money, if any, as should be found to be justly due to her from the plaintiff. The defendant contended, however, that the plaintiff did not convey to her an undivided one-half of the real estate in question, and that she could not be required to convey to the plaintiff any other or different interest than that which she acquired by the trust deed. The learned referee, before whom the case was tried, decided "that after the death of the mother the parties hereto, plaintiff and defendant, were tenants in common in one-half of the estate. That the plaintiff on the 3rd of January, 1890, by an agreement, absolute on its face, conveyed her interest of the estate to her sister, the defendant." The provision from the judgment thus quoted, seems to have proceeded upon the view that, by virtue of the last will and testament of the mother, the entire estate became vested in the two daughters, for in the report, or opinion of the referee, we find the following: "That the parties hereto, by their father's will, had each a third of the estate, but conveyed the same to their mother in trust, the particulars of which need not be stated, as the mother on her death by will devised the entire estate equally to her two daughters." This conclusion is not well founded, for the mother, as trustee, had no power of disposition of the trust estate by will, or otherwise. By her will the daughters became seized of such an interest in the real estate as the mother had individually acquired from her children, and nothing more. If it were true that the parties became tenants in common of the estate upon the death of their mother, the mere giving of a wrong reason for it, would not prevent an affirmance of the judgment. But we are unable to find any other ground upon which such determination can be predicated. It is not pretended that the plaintiff and the defendant, or either of them, ever attempted to revoke the trusts or took any steps in that direction, and as the trust instruments do not provide for a determination of the trusts upon the death of the trustee, the trust estate became vested in the Supreme Court which must cause the trusts to be executed by one of its officers under its direction. It is quite likely that, upon a retrial, which we find it necessary to order, the court may determine by its judgment to appoint an officer of the court to convey the trust estate to the parties entitled thereto and, at the same time, to decree a settlement of the accounts of Elmira H. Kain, as trustee for both the plaintiff and the defendant, as well as to pass upon the accounts of this defendant as trustee for the plaintiff under the instruments of January 3, 1890, and to decree a reconveyance of such an interest as the defendant acquired by virtue thereof. As the judgment must be reversed, we do not deem it advisable to enter upon any discussion of the merits of the various items which are in dispute between the parties, as other evidence bearing upon those items may be presented upon a rehearing. The judgment should be reversed and a new trial granted, with costs to appellant to abide the event. O'Brien, Rumsey, Williams, Ingraham and Parker, JJ., concurred.