Citation Numbers: 31 N.Y.S. 662, 90 N.Y. Sup. Ct. 208, 64 N.Y. St. Rep. 288
Judges: Cullen
Filed Date: 12/10/1894
Status: Precedential
Modified Date: 1/13/2023
This is an appeal from a judgment dismissing plaintiff’s complaint „on the merits, entered on the decision of the special term. The plaintiff is the daughter of one Joseph Colwell, deceased, and one of the beneficiaries under his will. The defendants are executors of that will. At the time of his decease Colwell was a partner in business with one Hepworth. The agreement of copartnership provided that the death of either partner during the partnership term should not be deemed a dissolution of the partnership, but that the same should be continued by the surviving partner till the expiration of the term, for the benefit of himself and the wife and children of the deceased partner. By the will of Colwell his executors were directed to hold his residuary estate in trust in separate shares, the income thereof to be applied to his children during life, and upon the death of any child the principal of the share to go to his issue. The defendants loaned the bulk of his residuary estate to Hepworth to carry on the partnership business, and Hepworth thereafter failed. At the time of these loans, or some of them, the plaintiff wrote letters to and executed an agreement with the executors, which it is alleged that the defendants will set up as a justification for their action in proceedings for an accounting. This suit is brought to set aside and cancel such instruments oh the ground of fraud.
It is first to be stated that a large part of the appellant’s argument is devoted to the discussion of questions that cannot be determined in this action. It is doubtless true that no action or assent by the equitable life tenant of the fund can bind the remainder-men. It is susceptible of grave doubt whether the beneficiary of the income of a trust fund, unassignable itself, can estop herself by her covenants or agreements. Whether the will or the agreement executed by plaintiff authorized the investment made by the executors may be debatable. But this action is not for an accounting against the executors, nor to determine the effect of the instruments executed by the plaintiff, but solely to qancel those instruments on the ground of fraud. The case, therefore, presents that single issue. We think the evidence justifies the trial court in its findings that no fraud was practiced upon the plaintiff. The plaintiff, at the time of the execution of the papers, was the wife of a lawyer,—the same lawyer who now brings this suit on her behalf. The important instrument, the agreement or release of May, 1886, was submitted to her husband, and its form amended by him. The husband said he told the. plaintiff not to sign it, and the plaintiff says the same. But the plain