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SECOND DEPARTMENT, MARCH TERM, 1899.

App. Div.]

Augustus N. Weller, for the appellants. Horace Secor, Jr., for the respondent. CULLEN, J.:

The action is in ejectment to recover land in Queens county. In 1877 one Jacob Story was the owner in fee of the premises in controversy. He and his wife Huldah had separated. At this time an indenture under seal was executed between Jacob Story, his wife Huldah and one James B. Raynor. The indenture recites the existence of a difference between Story and his wife, and their mutual agreement to live apart. It then recites that, in consideration of the premises and of the sum of one dollar, and for the purpose of providing for the support and maintenance of the wife, the party of the first part (the husband) has and does grant and convey unto the party of the third part (the trustee Raynor), and to his successors and assigns forever, a certain lot of land in the town of Hempstead in trust, to collect the rents and after defraying the necessary expenses to pay over the balance to the party of the second part (the wife Huldah) during her natural life, and upon the death of the party of the second part, to convey the premises to the party of the first part if he be living, or if he shall die before his wife then to convey the same to the heirs at law of the party of the first part. By the instrument the trustee covenants to indemnify and save harmless the husband from any liability on account of the wife's support. Some years afterwards the parties became reconciled and lived together until the death of Jacob in June, 1888. He left a will by which he devised all his property to his widow. The widow survived until October, 1897. In July, 1896, Huldah leased the premises to the defendant for the term of ten years, and defendant entered into possession under such lease. At times, Story and his wife lived on the trust property, and during the major part of the time Huldah seems to have managed it and collected the rents herself. After the death of Huldah the trustee executed a conveyance to the plaintiffs, who were the only heirs at law of Jacob Story. They instituted this action to recover from the defendant possession of the demised premises. The trial court decided in favor of the defendant, and from the judgment entered on that decision this appeal is taken.

The ground on which the learned judge below based his decision

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

was that "by the resumption of the marital relation the agreement of separation and the trust founded thereon ceased, and ipso facto the estate of the trustee also ceased and the title reverted to the husband." In support of this view was cited the case of Zimmer v. Settle (124 N. Y. 37). In that case Judge BRADLEY said: "Articles of separation between husband and wife in which another joins with her as trustee, although valid when made, are rendered void by resumption by them of their conjugal relation." Mr. Bishop states (1 Bish. Mar., Div. & Sep. § 1283) that a renewal of cohabitation commonly terminates the agreement, since the usual consideration for it has ceased to operate. The question has lately been discussed in this court by Mr. Justice BARTLETT in Hughes v. Cuming (36 App. Div. 302). If the instrument executed between the parties were a mere agreement for separation the decision of the trial court would be correct. But the instrument was much more; it was a conveyance of real estate on certain well-defined and valid trusts. Ordinarily agreements for separation between husband and wife contain a covenant on the part of the husband for the future payment at definite intervals of sums for the support of the wife, and a covenant on the part of the trustee to indemnify the husband against liability for future support. Such an agreement is essentially executory, and a failure of consideration will relieve a party thereto from his obligation to perform. But this principle does not apply to an executed agreement.

While the indenture in this case recites as the object of the conveyance the support of the wife, nevertheless it is a present conveyance which not only vested rights in the wife, but also in the heirs. of the grantor in case the husband should pre-decease the wife. In fact this may be termed a separation settlement, and similar in its legal aspects to a marriage settlement. The effect of a divorce on property rights under a marriage settlement seems well settled in this country by the authorities. If on a settlement money is payable to the wife during coverture, divorce determines the obligation to pay; but not so if the installments are payable to the wife during life. (2 Bish. Mar., Div. & Sep. § 1655, 1656.) In Babcock v. Smith (39 Mass. 61) the plaintiff, in contemplation of marriage with the defendant, conveyed her estate, real and personal, to trustees in trust (1) to apply the income to her separate use during the life of

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

her husband; (2) if the plaintiff survived her husband then to reconvey absolutely to her; (3) if she should not survive her hus band to pay the income to him during his life; and (4) at his decease to convey the property to the plaintiff's children. The parties married, but subsequently the plaintiff obtained a divorce from the defendant because of his adultery. It was held that, despite the dissolution of the marriage, the husband, in case he should survive the wife, was entitled to the income during his life, and that the divorce did not entitle the plaintiff to a reconveyance as provided for on the death of her husband. In analogy, therefore, with these authorities we are inclined to the opinion that the wife's rights under the trust deed were not abrogated by her subsequent cohabitation with her husband. But if we are in error in this, and if we assume that, from the time of the reconciliation, the husband could either have obtained the income of the trust estate or insisted on its application to the wife's support in such a manner as to relieve him pro tanto from that charge, we do not see that the reconciliation can have any effect on the rights of third parties. The husband might have contented himself with a conveyance under which no one would have acquired any rights, but himself, his wife and the trustee. But he went further; and if, under the doctrine of Townshend v. Frommer (125 N. Y. 446), he did not give his heirs at law remainders contingent upon his own death prior to that of his wife, at least he granted a valid power in trust to be exercised in that contingency for the benefit of the same persons. This power was irrevocable, no right to revoke it being reserved in the trust deed (1 R. S. 735, § 108; Real Property Law [Laws of 1896, chap. 547], § 128); and the execution of the power would be decreed in equity in favor of those beneficially interested in it. The argument of the learned counsel for the respondent is substantially that in every agreement for separation there is implied a condition that if the husband and wife subsequently cohabit, the instrument shall, in every respect, become void to the same extent as if such a condition was written in the instrument. We can find no authority going to the extent of this claim. But conceding the proposition, so far as the rights of the husband and wife are concerned, we can see no reasonable ground for implying such a condition so far as the rights of third parties are concerned.

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398

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SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

The deed from the trustee to the plaintiffs was not void because the defendant was in possession of the premises. The defendant being in possession under a lease for a term of years only, such possession cannot of itself be adverse to the title of the plaintiffs. (Doherty v. Matsell, 119 N. Y. 646.) To render the deed to the plaintiffs void it must be shown that the claim of the defendant's landlord was adverse to the plaintiff's title. The defendant entered under a lease from the widow. There is no evidence in the case that the widow assumed to claim ownership of the fee. Further, the possession of the cestui que trust could not be adverse as against her trustee. (Newton v. McLean, 41 Barb. 285.)

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

All concurred.

Judgment reversed and new trial granted, costs to abide the

event.

BRIDGET PATTERSON, as Administratrix, etc., of MARY FLANNERY,
Deceased, Appellant, v. ALBERT HOCHSTER, Respondent.

398 Death from falling into a coal hole - contemporaneous statements by the deceased
$127
proof required that the coal hole was open or insecure.

In an action to recover damages resulting from the death of the plaintiff's intestate, alleged to have been caused by her falling into a coal hole in the sidewalk in front of the defendant's premises, the negligence charged was that the coal hole was either open or insecurely covered at the time of the accident. The only evidence as to the details of the accident was that given by a woman who accompanied the intestate to the sidewalk, and who testified that, upon her turning her back toward the intestate, the latter cried, "My God!" and that, upon the witness rushing to her, the intestate said, "Never mind my head; my leg is in the scuttle hole, and it is broke." No testimony was given to show that the coal hole was uncovered, or that the cover was not securely fastened at the time of the accident, and no evidence other than the declaration of the deceased was given to show that her leg had gone into or was in the hole, the witness before referred to testifying that she did not look at the hole at the time of the accident.

Held, that the complaint was properly dismissed;

That, while the declaration of the intestate, being descriptive of her condition and situation at the very time she made the statement, and, therefore, contem

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

poraneous, was admissible as part of the res gesta, it was not of itself sufficient to justify the jury in finding that the leg of the deceased had gone through the coal hole, and that the coal hole was either open or insecurely covered at the time of the accident.

Semble, that, if it had been proved by other evidence that the coal hole was open at the time of the accident, the declaration of the intestate that her leg was in it would be sufficient to carry the case to the jury, notwithstanding the fact that none of those present were able to see that the leg was actually in the hole.

APPEAL by the plaintiff, Bridget Patterson, as administratrix, etc., of Mary Flannery, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of April, 1898, upon the dismissal of her complaint by direction of the court after a trial at the New York Trial Term.

This appeal was transferred from the first department to the second department.

Nelson Smith, for the appellant.

Maurice Rapp, for the respondent.

CULLEN, J.:

This action was brought to recover damages for the death of the plaintiff's intestate, resulting from an injury which is alleged to have been caused by her falling into a coal hole in the sidewalk in front of the defendant's premises. The complaint charges that the defendant maintained the coal hole open and not securely covered, and that, in consequence thereof, the plaintiff's intestate, without any fault on her part, fell into the same. The defendant answered admitting the ownership of the premises, and of the coal chute in front of the same, but denied that the coal hole was open or insecurely covered. The only evidence given on the trial as to the details of the accident was by the witness Mrs. Delaney, who was a tenant on the premises. On the occasion of the accident, the deceased came to visit the witness. About dusk the deceased left the house, the witness accompanying her to the sidewalk. From this point the testimony is: "That moment I turned around my back from her, and the first thing she screamed. She said, 'My God.' I rushed out and put my hands under her head-under her neck. She said, 'Never mind my head; my leg is in the scuttle-hole, and it is broke."

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