Mundy v. Munson , 47 N.Y. Sup. Ct. 304 ( 1886 )

Boardman, J.:

Two questions are presented by the opinion of the learned justice at Special Term, which go to the plaintiff’s right of recovery to the extent and in the manner provided for in the judgment appealed from. It is conceded that the plaintiff has a valid cause of action against the estate of the deceased under the ante-nuptial contract, but it is denied that she has any equitable lien, and her claim to priority of payment over the general creditors of the estate- is also denied. When the contract was made in 1873, the defendant’s intestate was in independent circumstances, but at his death, in 1885, he was insolvent and unable to pay his debts. The contest, therefore, is one between the plaintiff in her own right and the defendants as representatives of the other general creditors. If the plaintiff prevails, she will take all the assets, real and personal, belonging to the estate. If she fail, tbe assets remaining will be divided between her and tbe general creditors in proportion to their respective claims. If no equitable lien was created by the terms of the contract upon the property of which intestate died seized, the plaintiff would certainly acquire no rights superior to those of the general creditors.

Did she acquire an equitable lien by virtue of the contract ? If the estate had been solvent no such question could have arisen, because as to the heirs-at-law and next of kin the contract is valid and could be enforced. But as against the general creditors, she must have acquired an equitable lien under the contract to entitle her to priority in payment. Such lien, if existing, must have been created by the contract, because by the seventh and eighth findings of fact it appears that nothing was ever afterwards done to establish or create it. She acquired no lien in presentí. The intestate, during his lifetime, was at liberty to sell and convey any or all of his property. The contract so provides. She does not even agree to release her right of dower to the lands of which the husband shall die seized, unless the payment of the annuity shall thereafter be satisfactorily secured. As that has never been done; she is still entitled to dower in his estate. The contract in this and other provisions contemplates that other and further action is to be taken to secure the annuity, which was never done. If the case rested here there would not be an equitable lien. But the contract further says: “And for the payment of said annuity the said party of the first part (the intestate) does hereby promise, covenant and agree, that the same shall be and the same is hereby made and constitutes a lien and charge upon all the property and estate, real and "personal of every name and nature, kind and description, which he may own and to which he may be entitled at the time of his decease.” This language is very broad and comprehensive, but it does not create an equitable lien on any property. Clearly not in presentí upon property then owned by him, because such a construction is repugnant to other provisions, giving him the absolute right of disposition of such property. Can it charge such property as he may have possessed at his death ? We are of the opinion that it cannot. The charge or lien must have taken effect, if at all, at the date of the contract, and must plainly designate the property charged. In the present ease that was impossible. The property to be charged was not known to the contracting parties. The intestate may not then have owned it. It was utterly uncertain what property, if any, he Would own at his death. The contract could not have been enforced specifically as to such property in his lifetime, because the court could not possibly ascertain the property to be bound by its decree. If the property had been then owned by him and described the equitable lien would have attached. This is conceded by the appellants. But it does not appear that the property owned by the intestate at his death was owned by him twelve years before when this contract was made. It was wholly uncertain whether property owned by him in 1873 would remain his at his death. Between the parties to the contract there was no obligation to retain it. As to such property the intestate owed no duty to the plaintiff. We apprehend this does not constitute that decree of certainty in designating the property to be charged, which the law requires. This conclusion is sustained by Freemoult v. Dedire (1 Peere Williams R., 429); Williams v. Lucas (2 Cox’s Cas., 160); Seymour v. Railroad Company (14 How. Pr., 531, 537); Winslow v. Merchants’ Insurance Company (4 Metc., 306); Otis v. Sill (8 Barb., 102). It is not enough that at some future time the descriptions will become certain. (2 Story’s Eq. Jur., § 1249 and note.)

It must not be forgotten that, as against the party himself, his heirs-at-law and those claiming under him voluntarily, such an agreement may raise a trust which will be enforced in equity. But, as to purchasers and others acting in good faith and without notice, a diffm-ent rule applies. The cases cited by the learned justice at Special Term do not seem to us to justify his decision. In Payne v. Wilson (74 N. Y., 348) an imperfect mortgage was declared an equitable lien as against a mechanic’s lien thereafter filed against the property, because, when filed, it was affected by all outstanding equities then existing. Until the lien was filed the equities of the mechanic were no greater than those of the general creditors. In Husted v. Ingraham (75 N. Y., 251) an equitable lien for the price of personal property imperfectly secured and in a manner at variance with the contract was enforced against the receiver of the debtors. The receiver stood in the place of the debtors and took only sucb title as the debtors possessed. In Chase v. Peck (21 N. Y., 581) there was an equitable lien upon the specific real estate evidenced by a contract. It was bold that the agreement constituted an equitable mortgage upon the land, and that a judgment creditor purchasing the land under execution took subject to the equitable mortgage. In all of these cases the subject of the lien was clear and distinct, and made so by the instruments creating the lien. In no case did the element of uncertainty exist. For these reasons we conclude that no equitable lien was created by the contract by reason of its failure to designate with that certainty, which the law requires the property to be charged therewith.

• There are other questions necessarily arising on the facts as found at Special Term, among which may be suggested the following: Should it have been made out that the property owned at his death was owned by him when the contract was made ? If not so owned could it be held that such after acquired property was so far in expectancy as to be capable of being included in or designated by the contract ? Is an instrument, which by the bare force óf a contract can have no force or operation until after the death of the party, testamentary in its character where an adequate, consideration exists? Have the general creditors of a deceased person an equitable lien upon the property of the deceased, who was insolvent, equal to that of an equitable lien which takes effect also on the death of the party, the creditors having no notice of its existence ? These and other questions we deem it unnecessary to consider in view of the conclusion reached upon the point first discussed-.

The judgment should be reversed, and a new trial granted^ costs to abide the event.

HardiN, P. J., and Follett, J., concurred.

Judgment reversed, and new trial ordered, with costs to abide the event.