DANIEL J. LEARY, Respondent, v. FREDERICK GELLER, as Executor, etc., of MARY C. LEARY, Deceased, Appellant.

(Supreme Court, Appellate Division, First Department, July 9, 1915.)

DECEDENT'S ESTATE-ASSIGNMENT BY NEXT OF KIN-WHEN SUIT TO REFORM ASSIGNMENT DOES NOT LIE-MUTUAL MISTAKE OR FRAUD ESSENTIAL,

Where the brother of a decedent, entitled to share in his estate, absolutely and forever assigned all of his interest in the personal estate of the decedent to the decedent's widow, and released and discharged her as administratrix from all claim or demand which he had or might thereafter be entitled to in said estate, he cannot thereafter maintain a suit in equity to reform said assignment by excluding from the operation thereof certain securities formerly owned by the decedent which have turned out to be of value, if the complaint states no mutual mistake of fact, or a mistake of fact on one side and fraud on the other. A mere allegation that the widow falsely stated to the assignor that her husband had given the securities to her does not necessarily allege fraud on her part, there being no allegation that the statement was made with an intent to deceive the plaintiff and to induce him to execute the assignment.

APPEAL by the defendant, Frederick Geller, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1914, overruling a demurrer to the complaint.

John M. Enright (Benjamin G. Paskus with him on the brief), for the appellant.

Pierre M. Brown, for the respondent.

SCOTT, J.- Plaintiff is one of the children of James D. Leary, who died intestate April 11, 1902. The original defendant herein was Mary C. Leary, widow and administratrix of said James D. Leary, deceased. She having died since the

institution of the action, the present defendant, her executor, has been substituted in her place.

After the death of James D. Leary this plaintiff and his brother, George Leary, and his sister, Marie C. Leary, assigned, transferred and set over unto Mary C. Leary, the widow, her heirs, executors, administrators and assigns absolutely and forever, all of the part, share or interest of each of the assignors in and to the personal estate of said James D. Leary, and on the same date this plaintiff released and discharged said Mary C. Leary, as administratrix of said James D. Leary, of and from any and all claim or demand which said plaintiff then had or might thereafter be entitled to in said estate. The purpose of this action is to reform the aforesaid assignment and release by excluding from the operation thereof certain securities and the income and profits derived therefrom, by compelling the said Mary C. Leary (or her executor) to account to plaintiff for his proportional share of said securities and the income and profit derived therefrom as if the aforesaid assignment and release had never been made, or, having been made, did not apply to and cover the said securities.

The complaint alleges that James D. Leary in his lifetime had owned and been in possession of the securities mentioned, said to have been of large but uncertain value; that a short time before his death said James D. Leary filled out transfers of said securities in the name of Mary C. Leary and, with plaintiff's aid, signed the same; that shortly after the death of said James D. Leary, and before the execution and delivery of the assignment and release now sought to be reformed, plaintiff was informed by said Mary C. Leary that her deceased husband had given and delivered said securities to her before his death, and thereupon plaintiff, at her request and acting upon the belief that said securities had been so delivered to said Mary C. Leary, caused said securities to be transferred upon the books of the various corporations and new certificates issued to said

Mary C. Leary; that "the execution of the transfers made by deceased of said stocks and the statements aforesaid of Mary C. Leary created in the mind of plaintiff the belief that said securities had been given and delivered to Mary C. Leary by deceased, and solely in reliance upon this mistake and belief" plaintiff executed the assignment and release now sought to be reformed. It is further alleged that no consideration passed to plaintiff for the execution of either of said documents; that said securities were never given or delivered by deceased to said Mary C. Lary, nor were they ever her property and that she continued to claim and possess them until about December 30, 1913, when she admitted that the same were part of the personal estate of said James D. Leary, deceased, and accounted for them and their income and profits as administratrix.

It is stated in the complaint that the securities in question constituted only a part, although the larger part, of the estate of said James D. Leary, and plaintiff does not deny that his purpose and intent by the assignment and release was to convey and confirm to the widow all of the personal estate of said James D. Leary, but he leaves the inference to be drawn that he so intended because he did not know how much that estate amounted to, and if he had known he would not have been so generous.

The difficulty with the complaint is that it fails to state a case for reformation within the well-established rule that an action for the reformation of a written instrument will not lie unless there has been a mutual mistake of fact by the parties to it, or a mistake of fact on the one side and fraud on the other.

Neither of these conditions is stated in the complaint. No mistake as to the fact is alleged as to Mary C. Leary, nor is any frand charged against her. It is true that it is alleged that she stated that her husband had given her the securities before his death, whereas the fact is that he had not done so.

But this contradiction does not necessarily spell fraud on her part for it is nowhere alleged that she made this statement with the intent to deceive plaintiff or for the purpose of inducing him to execute the assignment and release. In short, nothing more is alleged in the complaint than a mistake on the part of plaintiff as to the ownership of the securities. This is not enough to maintain an action in equity for a reformation. The court at Special Term did not consider the complaint as charging fraud upon Mary C. Leary, but treated the action as one based on the ground of a mutual mistake of fact (see Leary v. Leary, 85 Misc. Rep. 591), but it is obvious upon a reading of the complaint that the only mistake of fact charged. was that of plaintiff. The objection now urged by defendant that there is a defect of parties defendant, in that the brother and sister who joined in the execution of the assignment should have been joined as defendants, is not raised by the demurrer.

The order appealed from must be reversed, with ten dollars. costs and disbursements, and the demurrer sustained, with costs, with leave to plaintiff to amend the complaint within twenty days upon payment of said costs.

INGRAHAM, P. J., CLARKE, DOWLING and HOTCHKISS, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and demurrer sustained, with leave to plaintiff to serve amended complaint on payment of costs in this court and in the court below.

WALTER B. WELLBROCK, Respondent, v. EDWARD RODDY and Others, Appellants, Impleaded with JACOB H. KOHLMAN, Individually and as Executor of and Trustee under the Last Will and Testament of HENRY WELLBROCK, Deceased, and Others, Defendants.

(Supreme Court, Appellate Division, Second Department, July 30, 1915.) WILL-PLEADING COMPLAINT TO SET ASIDE CONVEYANCE BY EXECUTORSILLEGALITY OF SALE ADMITTED BY DEMURRER-WILL CONSTRUED DISCRETIONARY POWER OF SALE.

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Where the complaint in an action brought by an heir at law and devisee to set aside a conveyance of lands made by executors alleges that the conveyances were made "for no purpose provided for by the will, and in contravention thereof; of all of which facts each of the defendants had notice," a demurrer admits the truth of such allegation, and hence will be overruled, although the will itself by another provision vests the executors with a discretionary power of sale.

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It seems, that a will which states that "for the purpose of carrying out the provisions of this, my will, without being in contravention of same, I authorize and empower my qualifying executors to sell and

convey at any time all and any piece of my property, when in their judgment they shall deem it necessary and advisable," confers upon the executors a power of sale in their own discretion. The words relating to a sale "in contravention" of the will are superfluous and in no way limit the discretion of the executors.

APPEAL by the defendants, Edward Roddy and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of October, 1914, overruling their demurrers to the amended complaint.

Lynn C. Norris (Edward M. Perry with him on the brief), for the appellants.

Louis J. Altkrug, for the respondent.