Lugar v. Lugar

In February, 1890, certain premises in this city were conveyed by Gedney to the defendant Livermore. The consideration for such conveyance was paid in part by Henry P. Lugar and in part by the grantee Livermore; the latter paying $3,000. At the time of the conveyance the premises were subject to a first mortgage of $14,000, of which $2,000 has since been paid by Livermore, who has also paid and satisfied a second mortgage for $963.50, which also was a lien on the premises at the time of said conveyance. The conveyance to Livermore was made pursuant to an oral arrangement between him and said Lugar, by which Livermore agreed to take the title in trust, to receive the rents, pay for repairs and necessary improvements, taxes and the interest on the two mortgages, and also to pay or renew the mortgages or any part thereof at such times as might to him seem expedient, “and make such other payments, loans and advances as said Lugar might direct or require,” with power to sell, and from the proceeds, together with the rents, “reimburse himself for all moneys disbursed by him,” with interest on yearly balances in his favor, and after the death of said Lugar “to distribute the balance of any moneys derived from the said rents, issues and profits and to distribute any interest in the said land and premises to which said Henry P. Lugar may be entitled at his death, in the manner and to the persons to whom” Lugar “might name and appoint in his last will and testament.” The premises were never conveyed by Livermore and are still held by him pursuant to said agreement. Henry P. Lugar died September 10, 1895, leaving a will by which he devised his interest in the premises in undivided shares to his widow, his daughter Marion, one of the defendants, and to his son Charles, to whom he gave one-third. Thereafter the widow died and devised her share to Marion. In May, 1893, Charles married the defendant Minnie, who in December, 1889, procured from Charles an absolute divorce by decree of our Supreme Court. The plaintiff is the sole issue of that marriage. In December, 1906, Charles married the appellant Catherine in the state of Connecticut, and in July, 1909, he died intestate.

This action was brought by Helen to determine the interest of herself and, as well, the interest of Minnie, the divorced wife of Charles, and of Catherine, his widow, in the premises; for an accounting by Livermore; and for a decree directing him to convey to Helen and Marion according to their respective interests, after he should have been reimbursed for all moneys due to him. Livermore appeared at the trial, and the court below decreed the amount due him; that he holds the premises in trust pursuant to said agreement; that neither Minnie nor Catherine is entitled to dower in the premises, which, subject to Livermore’s right to reimbursement for moneys due, belongs to Helen and Marion;, that Livermore “has the right and power to sell”; and that “upon any sale” he divide the proceeds as above. The court has also decreed that, on paying to Livermore his due, the costs, etc., Minnie and Marion were entitled to a conveyance from him for

[1] Conceding for the argument that the oral agreement was void to the extent that no trust resulted in favor of Henry or his heirs or devisees (3 Rev. Stat. [5th Ed.] c. 1, tit. 2, art. 2, § 51, p. 15), nevertheless I know of no law which prevented Livermore from treating it as valid and accepting and performing its duties, and when he has come into court and has given his express consent to" recognize and adopt the agreement, has accounted for the moneys coming into his hands, and has failed to appeal from the court’s decree charging him with a trust, passing his accounts, establishing his equities and the equities of those interested in the land or its net proceeds, and directing him to convey to the owners of the fee, on proper tender made, it seems to me that we have the relations of the parties from the day of the deed to this date as firmly and solemnly established as they could have been had they been expressed by formal instrument executed cotemporaneously with the deed. So expressed, the instrument would have been enforceable. Woerz v. Rademacher, 120 N. Y. 62 , 23 N. E. 1113 .

[2] In this situation, was the estate of Henry and his devisees a dowable estate? It will be noted that Charles died before the Real Property Law was enacted and while the Revised Statutes were still in effect. Under the Revised Statutes (5th Ed., vol. 3, c. 1, tit. 3, § 1, р. 31)—the present Real Property Law is the same—a widow was entitled to dower in “all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage.” Whether this was merely declaratory of the established common law (House v. Jackson, 50 N. Y. 161 , 164), or was an adoption of a controverted principle (Hawley v. James, 5 Paige, 318, 320, 452, 453), is immaterial. In either case, a widow had her “equitable dower in lands in which her husband had an inheritable interest at the time of his death” (Id.). Authority other than the statute is unnecessary to show that estates of inheritance include any equitable interest which is not extinguished by the death of him entitled thereto. 3 Rev. Stat. (5th Ed.) с. 2, § 28, p. 44. Seisin in fact in the husband is unnecessary; seisin in law satisfies the statute. Durando v. Durando, 23 N. Y. 33 L “Seisin in law,” as defined by Bouvier, is “a right of immediate possession.” Had the relations between Henry and Livermore been reduced to writing, the instrument, while insufficient to create an express tr.ust, would have conferred upon Livermore an enforceable power in trust; the legal estate remaining in Henry. Woerz v. Rademacher, supra, 120 N. Y. 67 , 68, 23 N.

[3] The same result is reached from another point of view. It is found as a fact that, although Henry paid part of the consideration, the remainder was paid by Livermore, and that one of the purposes of the conveyance was to enable him to reimburse himself “for all moneys disbursed by him,” from which it may be inferred that he was authorized to reimburse himself for the part of the consideration he had paid as well as for his subsequent disbursements, thus constituting him a mortgagee, the equitable title remaining in Henry, descending to his heirs, subject to Livermore’s lien (Carr v. Carr, 52 N. Y. 251 , applying 4 Lans. 314 , where the facts are fully stated), and entitling Henry’s widow to dower (Bowery Nat. Bank v. Duncan, 12 Hun, 405 ).

[4] One further consideration would seem to put the question at issue beyond doubt. The only estate vested in the respondent Helen (and in Marion as well) is such as has come to her by means of the agreement with Livermore, and not otherwise. She claims under the ' will of Henry and as the heir of Charles, Henry’s devisee; and the appellant Catherine claims as the widow of Charles. These facts justify us in holding that the respondent Helen is estopped to deny either the validity of Henry’s estate or the inheritable nature of her father Charles’ estate thereunder. Sherwood v. Vandenburgh, 2 Hill, 303 .

The judgment should be modified by striking from the third conclusion of law so much thereof as denies to the appellant Catherine dower in the undivided one-third part of the premises belonging to Helen, and substituting therefor one or more findings in conformity to this opinion, and as so modified the judgment should be affirmed, with costs to the appellant.

CLARKE, J., concurs.

I concur with Mr. Justice HOTCHKISS. It was found by the surrogate, and np one excepts to the finding, that John R. Livermore held the legal title to the lands and premises, as trustee, under and by virtue of an agreement between him and Henry P. Lu-gar, deceased. It was further found that, as a part of the agreement from which the trust resulted, John R. Livermore agreed that after the death of Henry P. Lugar he would distribute the balance of the moneys derived from the rents, issues, and profits, and distribute any interest in said land and premises to which said Henry P. Lugar might be entitled at his death in the manner and to the persons to whom he, the said Henry P. Lugar, might name and appoint in his last will and testament. It is true that under this trust the whole legal estate was vested in Livermore, subject, however, to the execution of the trust. At Henry P. Lugar’s death his devisees acquired a legal estate in the property as against all persons except the trustees and those claiming under them. Real Property Law [Consol. Laws, c. 50] § 101; For

(dissenting). The only question presented on this appeal is whether the appellant, Catherine Lugar, is entitled to-dower in certain real property described in the complaint. Catherine Lugar was married to one Charles Lugar in December, 1906, and in July, 1909, Charles Lugar died intestate. To entitle the appellant to-dower it must appear that her husband “was seised of an estate of inheritance” during her marriage of the property in question. Real Property Law, chapter 52 of the Laws of 1909 (Consol. Laws, c. 50); Revised Statutes, pt. 2, c. 1, tit. 2, art. 1, § 1. As was said by Judge-Gray in Phelps v. Phelps, 143 N. Y. 197 , 38 N. E. 280 , 25 L. R. A. 625 :

“The position of a wife, with respect to her husband’s property, is limited by the Revised Statutes, and unless she can bring herself within their limitations, she is without the right to assert any claim to it.”

And the question therefore is whether at any time during covertureCharles Lugar was seised of an estate of inheritance in the property in. question. The appeal is based upon the judgment roll, and consequently we" are confined to the findings of the court at Special Term, to determine whether under the facts there found Charles Lugar, the-appellant’s husband, was seised of an estate of inheritance in this-property.

Certainly Lugar had no estate in this property either legal or equitable. He was seised of no interest in the property by reason of this oral agreement. The statute says that to entitle a wife to dower her husband must have been seised of an estate of inheritance during coverture, and I think it clear that Henry P. Lugar never was seised of an estate of inheritance. Whatever interest he had under such a void trust certainly would not descend to his heirs or devisees. Liv

So that the interest of those in whose favor Henry P. Lugar exercised the power,of appointment was not to the land, even assuming that this oral agreement was enforceable, but to a distributive share of any interest in the land and premises to which Henry P. Lugar may be entitled at his death. Assuming that this instrument had been in writing and enforceable, the sole remedy of a person in whose favor Henry P. Lugar had exercised the power of appointment would be to compel Livermore to sell the property and distribute its proceeds according to the agreement. It seems to me clear that at no time would Henry P. Lugar or his children have been entitled to a decree compelling Livermore to convey this land either to Lugar or a person in whose favor he exercised the power of appointment. Livermore was seised of the whole of this property. He had advanced a large part of the purchase money; he was in actual possession of it receiving the rents and profits; and the utmost that can be said is that he had, under a contract which was not enforceable as against him, agreed when the property was sold to distribute whatever interest Henry P. Lugar had in it to those in whose favor Henry P. Lugar should direct it to be paid by his last will and testament. One of Charles’ children commenced this action to enforce this oral agreement, and, until the court made its finding in this case and entered judgment based thereon, there never was at any time, so far as appears from these findings, any interest in either Henry P. Lugar or his children which could be called an estate either legal or equitable in the property, and at that time appellant’s husband was dead. As Judge Gray says in Phelps v. Phelps, supra:

“So far as my examination has gone, I am unable to .find in the adjudged cases any support for the proposition that a right to dower can be asserted, except with respect to real property of which the husband was actually seised during his lifetime, or. to the actual seisin of which he had a legal right.”

The court, in the decision, having set out the conveyance of the property showing that the legal title was in defendant Livermore, and the oral agreement under which he became seised and possessed of the land and premises, the finding that Henry P. Lugar died “owning an interest in the said land and premises,” that said Plenry P. Lugar “devised his interest in said land and premises,” and that said Charles E. Lugar “died on the 22d of July, 1909, owning a one-third undivided interest in the said land and premises,” if taken as findings of fact, would expressly contradict the findings as to the.actual conveyances, from which, as before stated, the title to the property is vested in the defendant Livermore. I think these findings can be treated as conclusions, although included in the findings of fact; and, as upon the conceded facts as found by the referee the appellant’s husband was never vested with the title to the property, these conclusions can be disregarded.

I think therefore the judgment appealed from was right and should be affirmed.

DOWLING, J., concurs.