
    Anna M. Smith, et al., Plaintiffs, v. Nelson Terry, Defendant.
    (Supreme Court, Queens Special Term,
    July, 1898.)
    Trust for separation of husband and wife — Resumption of marital relations.
    ' Under a tripartite agreement of separation, a husband deeded real estate to a trustee upon condition that he pay the income to the wife for life and upon her death reconvey it to the husband or to his heirs. The parties (became reconciled and the husband, upon his death, devised the property to his wife. In 1896 she leased the property for ten years and, dying in 1897, devised the property to her heirs.
    Held, that the resumption of marital relations avoided the agreement of separation, that the wife took under the will of her husband and that her lessee was entitled to hold as against the heirs of the husband, claiming under the trust for a separation, and to whom the trustee had conveyed after her death.
    Action of ejectment. By a specialty executed in 1877, by Jacob Story, his wife Huldah and James B. Raynor, the husband and wife agreed to live permanently separated because of unhappy differences, and the husband for the purpose of supporting his, wife conveyed the land in question to the said Raynor in trust to devote the income thereof to the wife for life, and upon her death to re-convey the same to the said husband, or, if he should die before his said wife, to his “ heirs-at-law.” Soon thereafter husband and wife became reconciled and resumed their marital life, which they continued until the husband died in 1888. By his last will he left all of his property to his wife. In 1896 the wife leased the land in question to the defendant for ten years. Then she died in 1897, leaving by her last will all of her property to the plaintiffs, the only heirs-at-law of herself and her said husband. Thereafter in 1897 the said trustee, Raynor, executed and delivered a deed of conveyance of the said land to the said heirs in alleged execution of his trust. The said heirs as plaintiffs herein now claim title through the said deed and priority thereunder over the said lease of their mother to the defendant.
    A. N. Weller, for plaintiffs.
    Horace Secor, Jr., for defendant.
   Gaynor J.

By the resumption of the marital relation the agreement of separation and the trust founded thereon ceased (Zimmer v. Settle, 124 N. Y. 37); and ipso facto the estate of the trustee also ceased and the title reverted to the husband (Kip v. Hirsh, 103 N. Y. 565; Chaplin on Express Trusts and Powers,sec. 524). It follows that the wife got title in fee to the land in question by the will of the husband, and that the plaintiffs’ title is from her and subject to her lease to the defendant. I do not find that the resumption of the marital relation was upon an agreement- that the separation trust should continue, if sp.ch a result could be effected by an oral agreement as is claimed.. ^

Judgment for defendant.  