Smith v. Rockefeller , 10 N.Y. Sup. Ct. 295 ( 1874 )

Landon, J.

The testator only gave the interest of $1,000 to Philip E. Rockefeller; this was to continue for five years; if Philip should then have reformed, the principal was to be paid him; if he had not reformed, the interest was to be paid him for three years longer, and then the principal was to be given to these defendants. As Philip died within the five years without having reformed, the condition precedent upon which the gift of the principal to Philip depended did not and could not happen and the gift of the principal never vested in Philip. That is to say, no gift of it was made to him. The bequest of the same over to these defendants took effect and they became entitled to the money. Caw v. Robertson, 5 N. Y. 125. The five years during which the executor was to pay Philip E. the interest was a probationary period given him in which to reform. It is reasonable to suppose that the testator intended this probationary period should end with the life of the party whose reform was desired, and the payment of interest should also end. 2 Williams on Ex’rs (5th ed.), 1132. No testator can, by implication, be held so stupid as to have intended that his executors should hold funds in suspense, contingent upon the reformation of a person after his decease. The court was right in giving judgment in favor of the defendants.

The learned judge, however, refused to find that this was a proper case for the plaintiff to apply to this court for a construction of this will. He found that the plaintiff had used the principal sum in his business. He refused to find that he was entirely responsible and ready and willing to pay the $1,000 over to the persons who might be adjudged entitled to the same, and refused to find that the plaintiff acted in good faith in bringing this action. He charged him personally with the costs, granted five per cent additional allowance of costs, and charged him interest compounded, with biennial rests. We have carefully examined the case and think the learned judge was warranted in the view he took of the plaintiff’s conduct and was therefore warranted in the judgment he awarded.

The effect of the finding is, that the plaintiff did not bring this action for the purpose of ascertaining who were entitled to the fund, but for the purpose of preventing those lawfully entitled to it from promptly obtaining their own; that he might himself continue to use a fund he had no right to use at all j that he preferred to waste the fund in costs rather than pay it to its rightful owner; that any day of payment was inconvenient, and therefore unjustly sought to be postponed.

The judgment should be affirmed, with costs against the plaintiff personally.

Countryman, J., dissented.

Judgment affirmed.