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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 266 So far as the questions of fact involved in this case depend upon conflicting evidence, the findings of the referee cannot be reviewed here. They have been examined by the Supreme Court and found satisfactory. As to *Page 268 those questions, therefore the judgment appealed from is final. Among those most material to the plaintiff's case is the issue raised by the answer and reply involving the validity of the release or quit-claim executed by Mrs. Ham. That it was, in fact, executed by her and by her delivered, is apparent. Was its execution and delivery induced by fraud or other influence set out in the reply? If there is evidence tending to show that it was, there are many circumstances to the discredit of the plaintiff's principal witness, and other circumstances and the testimony of witnesses to the contrary. By the latter the referee and General Term have been convinced. The appellant's counsel, however, lays much stress upon the fact that the pleading or answer of the defendant alleges, for the execution of the release, "a valuable consideration," and contends that neither the evidence nor the finding of the referee is to that effect, and more than this, that it was, in fact, disproved. But in what respect does the finding of the referee differ from the allegation of the defendant? He finds a good and sufficient consideration, one moving to the benefit of the plaintiff and of substantial value. He was not asked for other or further findings, as for instance in what way the agreement for the adjustment or settlement of the estate was for her advantage. It accords with nature and the fitness of things, that a speedy adjustment of the rights of several persons in property should be made; and as in this case the questions were between brothers and sister, it is not difficult to see that each might desire, by a fraternal arrangement, to prevent controversy and dispute over the estate of their father, and put an end to doubt or indisposition before it widened into strife and enmity. The release recites a consideration of $1; the pleader averred a valuable consideration; the referee finds that it took its place in the "final settlement of the estate and the division of its assets." The plaintiff by no means shows that it was without consideration, but urges, in the language of one witness, "that no money or property was transferred, or consideration of a pecuniary or valuable character given when the *Page 269 paper was signed." This was matter for the trial court, and with other evidence to be considered. Upon the whole the conclusion was expressed in the finding I have referred to. It is quite sufficient. It is well settled also that the acknowledgment of the receipt of the consideration expressed in a deed is open to explanation (McRea v. Purmort, 16 Wend. 469), and that it may be resorted to even to uphold a conveyance when attacked by creditors, even if it discloses a different consideration than the one alleged. (McKinster v. Babcock, 26 N.Y. 378.) There is also evidence to sustain the finding.
But assuming it to be a gift, I find no ground of invalidity. If there was no fraud or deceit, no unfairness practiced against the giver, why should it not stand? The interest described and intended to be transferred had been a voluntary gift to her made by the father at his pleasure, subject to conditions — the death of Wessel without children — and liable to be defeated if he had issue. She had the same right to do with it as she chose — bestow it upon her brother as a favor, or make it a factor in the adjustment of the estate or its amicable division. The argument submitted by the appellant's counsel upon this branch of the case is well prepared and fortified by authorities carefully brought together. It was fitted for a different forum, where the facts could be considered and placed one against the other; but it enters a field of inquiry over which we have no jurisdiction, for our examination of the evidence, even in the light of his discussion, discloses no finding without evidence in its support, and as to the one above referred to and chiefly drawn in question, there is, I think, abundant and satisfactory proof.
The next question presented by the appellant relates to the scope and effect of the release and quit-claim. It is, no doubt void if the plaintiff had no property in the thing released or conveyed. But it was otherwise with the plaintiff. The property which forms the subject of the legacy was, by the terms of the will, separated from the general estate for the benefit of the legatees, the interest to be paid to Wessel during his life, and upon his death without issue, one-fourth of the property *Page 270 itself given to the plaintiff. It does not seem necessary to determine whether an interest at once vested in her, or whether time and the happening of the specified event were of the substance of the gift, and prevented it from vesting until the event happened. In either case, she acquired an interest (2 R.S. 723, art. 1, tit. 2, part 2, chap. 1, § 10); although the right to possession was postponed to a future period and depended upon the contingency of the death of Wessel without children. This did not prevent the creation of the estate, but rendered it liable to be defeated. (Art. 1, chap. 1, tit. 2, part 2, vol. 1, R.S. 725, § 31.) It was an estate in expectancy (§ 9, p. 725, id.), however, and could not be destroyed by any alienation or other act of Wessel or his trustee (§ 32, id.), and upon his death without children would become absolute in the plaintiff. It was therefore alienable by her to the same extent as if in possession (§ 35, id.), and whether it be deemed vested or contingent. (Moore v. Littel, 41 N.Y. 66; Sheridan v. House, 4 Keyes, 569; Woodgate v. Fleet, 44 N.Y. 1.) These rules apply although the property involved is personal and not real. (1 R.S. 773, §§ 1, 2, tit. 4; chap. 4, part 2, tit. 3.) It seems to us also that the instrument executed by the plaintiff was sufficient to transfer to Wessel the plaintiff's interest in the trust fund, whatever it was. It must be noticed that by the will of her father the plaintiff was twice remembered. The same clause which gave her an interest in the trust fund also gave to her absolutely and at once, one-fourth of the whole body of that class of property from which the trust fund was to be taken. It was therefore to be expected that in describing the interest intended to be transferred, she should speak of "the trust fund"; and so the release or quit-claim was drawn in view of that fact, and to distinguish between the two provisions. Such is its language and effect. The release is "of all title, claim and demand of, in and to the trust fund given and bequeathed * * * for the use and benefit of said Wessel T.B. Van Orden," not in the bonds and mortgages, etc., from which that fund is to be taken; thus leaving *Page 271 no room for doubt as to what was intended. The conveyance is of all her interest in that fund.
It is also urged that the transaction indicated by the release is void as against public policy — "a fraud against the ancestor." This is not apparent. The parties were sui juris, and the court cannot modify a gift or restrain by limitations the use of the testator's bounty. It may be that he intended, as the appellant claims, "to stint" one child for the benefit of the others. If so, it would not be unnatural for them to make such division as would wipe out the inequality, or to do what they liked with their own. But if the testator's object was to withhold the property from a use not agreeable to his judgment, as suggested by the appellant's counsel, it has found no expression in his will; and what he omitted the court can neither formulate nor supply.
Much of the evidence on which the plaintiff relied was drawn from the defendant; and her counsel makes the further point that he was incompetent as a witness, at the same time coupling with it the assurance "that to reverse on that ground would be to shut out much that sheds light upon the transaction as a coercive, doubtful and inequitable" one. It is not usual for a party upon appeal to object to the competency of a witness called and examined by himself before the trial court; yet it is so here. The defendant, at the outset of the trial, was the first witness. He was called by the plaintiff and examined and cross-examined, and thereupon the plaintiff rested. He was subsequently recalled and examined in his own behalf. The objection now made is general, that he was not competent under section 829 of the Code. He is not thereby rendered incompetent for all purposes, even in actions by administrators, but only "as to personal transactions or communications between the witness and the deceased person." The learned counsel points to no exception which brings up a violation of that rule, and a careful reading of the extended evidence leads to no discovery of such a case. On the contrary, in various instances the referee excluded evidence when bordering upon it, and in more than one ruling declared that whenever *Page 272 offered it would be excluded. There was watchfulness to avoid infringing it in spirit or in letter; and this desire was also shared by the defendant, for the appellant's counsel now says: "By dint of evident intermediation from counsel the defendant sought to keep every thing out that he said to Mrs. Ham or she to him." Nor does the learned and ingenious counsel now indicate a ruling in this respect where error occurred.
There are other objections made, resting upon exceptions to evidence. They have been examined, but appear to be without force. There are none which affect the merits of the controversy, or which, even in actions at law, would require a new trial. The hearing was had before an experienced referee, conducted by expert and learned counsel, and the result of our examination is that the judgment rendered by the referee and approved by the General Term stands upon no error. It should therefore be affirmed.
Judgment affirmed, with costs.
All concur.
Judgment affirmed.