
    Walter S. West, Appellant, v. John H. Burke and Emily Hathorn West, as Trustees under the Last Will and Testament of George West, Deceased, and Others, Respondents.
    Third Department,
    January 6, 1915.
    Husband and wife — conveyance of interest in estate—incompetent person —• conveyance by husband while incompetent — effect of subsequent divorce granted wife.
    An assignment by a husband of a portion of his interest in his father’s estate as a trust beneficiary undér his will, made to his wife and children for their support and maintenance, will be upheld by a court of equity.
    
      A conveyance of real estate by a husband to his wife will be sustained in equity as a gift, on the theory that he is bound to support her, and the court will deem it to have been made for that purpose.
    Such conveyance is absolute and unaffected by the fact that the wife remarried after she had been granted an absolute divorce; nor is the conveyance rendered ineffectual under section 1771 of the Code of Civil Procedure, which provides that where a wife remarries her alimony shall cease.
    Plaintiff, by his father’s will, was entitled to one-third of his residuary estate, and the income thereof, and pending his wife’s action for separation, on leave granted upon the joint petition of himself, his committee, his mother and his two brothers, he assigned to his wife the portion of the principal payable to him when he arrived at thirty-five years of age, and to a trustee for his wife and children a certain amount of the money which would come to him from the estate when he was forty years old; one-half of the income to be paid to the wife and the other half to the children to whom at then mother’s death the principal was to be paid. In an action brought by the testamentary trustee, to which the plaintiff and his committee and all other parties in interest were made parties, it was determined that the assignments made by plaintiff were effectual and valid transfers of the interests they purported to assign.
    
      Held, that a judgment dismissing the complaint in an action brought by the plaintiff after his incompetency had terminated, to annul the order and judgment theretofore made, neither fraud nor collusion being shown, should be affirmed.
    Appeal by the plaintiff, Walter S. West, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 9th day of March, 1914, dismissing the complaint upon the decision of the court after a trial before the court without a jury.
    
      Lewis E. Carr [Henry J. Crawford with him on the brief, Joseph A. Kellogg of counsel], for the appellant.
    
      Edgar T. Brackett, for the respondent Todd.
    
      James W. Verbeck, for the respondent Burke.
   Kellogg, J.:

The plaintiff seeks a judgment annulling an order of the Special Term made February 7, 1908, and a judgment of the court of June 10, 1908. The order permitted, and the judgment declared valid, two assignments of a part of the interests of the plaintiff under the will of his father, one to his wife, the other to a trustee for the benefit of his wife and children. In effect the plaintiff seeks to have the said assignments declared ineffectual.

The trial court has found that the order and judgment sought 'to be vacated were duly obtained and that the assignments by the plaintiff of a part of his interest in his father’s estate were valid. The order of the court sought to be annulled was made upon the petition of the plaintiff, showing in substance, that he had entirely ceased from drinking intoxicating liquors, was in his right mind and fully understood his rights; that an action for separation had been brought against him by his wife and that he was desirous of making proper provision for her and their infant children, and that it had finally been agreed between himself, his committee and his wife that there should be assigned to her the $15,000 which would be payable to him under the will of his father when he arrived at thirty-five years of age, and that there should be assigned to the trustee for his wife and children $100,000 of the moneys which would come to him from said estate when he arrived at forty years of age, the said trustee to pay one-half of the income of said fund when received to the wife and the other half for the children, and upon the death of the wife the principal was to go to the children. His committee, his mother and his two brothers, joined with him in the petition. The court approved of the application and permitted the conveyance to be made.

While the action for separation waspending the plaintiff was adjudged an habitual drunkard and placed under a committee, which committee continued until July 11, 1911, when by order of the court it was discharged upon the ground that his incompetency had terminated. The judgment sought to be annulled was entered in an action brought by the trustees under the will of his father, George West, against all parties interested in that estate and the plaintiff’s committee. The complaint set up the assignments and the various matters relating thereto, the will of the father and alleged that the executors were uncertain as to the plaintiff’s interests under the will and as to the effect of said assignments thereon, and asked a determina, tion of the court whether under a proper construction of the will the said assignments were valid and effectual to transfer the interests of the plaintiff under the will, which they purported to transfer. The judgment construed the will and held that the assignments were effectual and valid transfers of the interests they purported to assign. Every party to the litigation understood the material facts and was properly before the court. The plaintiff and his committee were represented by able counsel. It was evident, in the interest of the estate and of all concerned, that the assignments should not be treated as valid by the representatives of the estate without an adjudication of the court. There is nothing impeaching the fairness of the parties to the action or the fairness and reasonableness of the judgment. The fact that the plaintiff had been adjudged an incompetent person is not alone sufficient to avoid the effect of the order and judgment. He was properly advised by his committee, by his mother and his brothers, the only persons aside from his wife and children having a real interest in him. The court determined the assignments to be a reasonable provision under the circumstances for the wife and children. As the facts then existed we cannot say that the order was unreasonable or unfair. The plaintiff and his committee were duly made parties to the action and the judgment is binding upon them in the absence of fraud or collusion, neither of which is shown. A sufficient answer to the plaintiff’s contention is that the judgment and order were properly made and are binding upon him.

The judgment rests upon a substantial basis. In addition to what we have stated with reference to the provisions of the father’s will in the plaintiff’s favor, it should appear that the residuary estate was about $800,000, of which the plaintiff was entitled to the income of one-third until he became thirty-five years of age, when the $15,000 of principal was to be paid to him and thereafter the income from the remainder of said one-third was to be paid to him until he became forty years of age, which will be in 1915, at which time [we quote from the will] I direct my executors and trustees to pay over and transfer to my said son Walter S. West the entire remaining portion of said one-third of my property to whom I give, devise and bequeath the same subject to this trust.” In case he died before he came into possession of the property it was to go to his lawful issue him surviving. If he died without issue it was to go to his brothers or brother surviving, or their issue. Substantially a similar provision was made as to each of the other sons. The father died January 25, 1906; the plaintiff was married November 25, 1896, and the" daughters Emily and Dorothy at the time of the trial in July, 1913, were about twelve and eleven years of age respectively.

It is unnecessary to determine how far the plaintiff’s interest in his father’s estate was vested or contingent. A conveyance made by him, especially to his wife and children for their support and maintenance, would be effectual. (National Park Bank v. Billings, 144 App. Div. 536; affd., 203 N. Y. 556; Clowe v. Seavey, 208 id. 496.) It is not necessary to say that a legal interest passed under the assignment. Having been made for the benefit of his wife and his infant children, they were assignments which a court of equity will sustain. If no other reason were found the plaintiff would be estopped under the circumstances from questioning their validity. Husband and wife were incapable at common law to transfer real estate to each other, but a conveyance by the husband to the wife as a gift was sustained in equity on the theory that he was bound to support her and the court would deem it a provision for that purpose. (Hunt v. Johnson, 44 N. Y. 27.)

The fact that the wife has remarried and that the plaintiff has also remarried is no reason why a court of equity should disregard the agreement which was reasonable and fair when made.

It is urged, however, that the remarriage of the wife after the assignments, under section 1771 of the Code of Civil Procedure, renders the transfers ineffectual so far as she is concerned, on the theory that the provision for her was in substance alimony. By order of the court made after, her marriage the order granting alimony was modified so that the plaintiff was not required to pay the $2,500 annually to his wife thereafter. The action for a separation was, by the understanding of the parties and the entire family, turned into an action for absolute divorce and the interlocutory judgment of divorce in her behalf was granted on the day such change was made, upon proper evidence. The provision of the Code that when the wife remarries the alimony granted to her by order of the court shall cease is reasonable and just. Such an order takes from the husband by force of law money for her support, and when she remarries, her support' being provided for, it is reasonable that the forced payments from the late husband should cease. But where a husband voluntarily settles property upon a wife, either as a matter of love and affection, or duty or in settlement of disputes between them, the conveyance is absolute and uninfluenced by the fact that she obtains a divorce and subsequently remarries. These assignments were made in contemplation of an absolute divorce, and undoubtedly the provision for alimony was affected by the fact that under the assignment the wife and children, in 1915, would probably have an income of their own outside of the alimony. The court permitted the assignments to be made but did not compel them. The permission was necessary because the plaintiff was then a ward of the court. If it had been the intention of the parties that the wife should forfeit the benefit which she was to derive from the trust fund if she remarried, it should have been so stated in the assignment. If it had been stated perhaps the remarriage would not have followed. In any event it is too late to make a new assignment and the court must interpret the one made by its permission upon a full understanding of the rights and interests of all the parties. The judgment should, therefore, be affirmed, with costs.

All concurred, except Smith, P. J., not voting.

Judgment affirmed, with costs.  