
    Wilhelmina Haack, App’lt, v. John Weicken et al., Ex’rs, et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 17, 1889.)
    
    1. Deed—Reformation of—Mistake.
    Plaintiff was a tenant in common, with two sisters and a brother, of $40,000 worth of real estate in Brooklyn and New York. They agreed that oné-half was to be deeded to the broth jr, he to pay off one sister, and the other half also to him to be conveyed to plaintiff and her husband, “ her interest in New York property to remain in her,” and her husband to pay off the other sister. But in preparing the papers the husband directed the scrivener that “ he wanted that portion to his wife fixed so it vested in him,” which he did by omitting plaintiff’s name as grantee without consulting her. Held, that the brother had no authority to change or convey to other persons than those agreed upon; that if her husband procured the conveyance to himself as her agent he held the property in trust, and that plaintiff had a good cause of action for a reformation of the deed.
    3. Same.
    The acceptance by plaintiff of a devise and legacy under her husband’s will did not estop her from enforcing her rights under the deed, as she only received $13,000 under the will, and the property taken from her by her husband amounted to $12,500, so that she would only receive $500 for her dower in a $30,000 estate.
    (Follett, Ch. J., dissents.)
    Appeal from a judgment of the general term of the first department, affirming a judgment entered upon a decision of the special term, dismissing the plaintiff’s complaint upon the merits.
    
      Matthew Hah, for app’lt; Rudolph Rale, for resp’ts.
    
      
       Reversing 4 N. Y. State Rep., 453.
    
   Haight, J.

This action was brought for the reformation of a deed executed by John Albert Bopke to Heinrich A. Haack, dated the 6th day of October, 1879, conveying certain real estate-in the city of New York, by inserting the name of the plaintiff asoné of the grantees therein, and adjudging her to be the owner of one undivided half thereof.

The trial court has found as facts that William Ropke died' seized of two parcels of real estate, one situated in the city of Brooklyn, and the other in the city of New York, each valued at the sum of $20,000 ; that he left him surviving three daughters- and one son, of which the plaintiff was one, who had become-vested as tenants in common of the real estate so left by him; that on or about the 6th day of October, 1879, they entered into an agreement .to the effect-that the lands situated in the city of Brooklyn should be-conveyed to the plaintiff’s brother, John Ropke, upon payment by him of the sum of $10,000 to one of the plaintiff’s sisters; and that the lands situated in the city of New York should be conveyed to him in order that the same should be conveyed by him to the plaintiff and her husband, Heinrich A. Haack, upon payment by her husband of the sum of $10,000 to the other sister ; that the plaintiff’s interest in the estate should remain in the New York property; that instruments in writing intended to execute- and consummate the agreement were executed and delivered, and the sums of money so agreed were paid by John Ropke and the» plaintiff’s husband respectively ; that the deed executed by John A. Ropke of the New York property, pursuant to the agreement,, ran to Heinrich A. Haack, the plaintiff’s husband, as the sole-grantee ; and that the plaintiff received no consideration whatever for conveying her interest in the estate of her father to her husband ; that she did not know of it until after the death of her husband and until the month of September, 1883, but had always understood and believed that the title had been taken in the name of herself and her husband, pursuant to the agreement.

The trial court further found as a fact that no mistake was made» in omitting from the deed mentioned the name of the plaintiff asoné of the grantees or parties of the second part, and, as conclusions of law, that it was valid and effectual as against the plaintiff' and conveyed the entire title to her husband.

Exceptions were taken to the last finding of fact as well as to-the conclusions of law.

There is an apparent conflict in the finding of fact to the effect that there w»as no mistake in omitting from the deed the name of the plaintiff, with the findings that precede it. It is our duty to see if they can be reconciled. Green v. Roworth, 113 N. Y., 462; 23 N. Y. State Rep., 149. We have, therefore, examined the-case with some care for the purpose of determining wdiat was intended by the trial court in making this finding.

Upon referring to the requests to find which were submitted by the plaintiff, the trial court repeated the finding of the partition agreement of the children of William Ropke; and that the conveyance was to be made by them to John Ropke; and that he was-to convey the New York property to the plaintiff and her husband upon the payment by the husband of the sum of $10,000 to ■one of the sisters, “and that the plaintiff’s interest in the said ■estate should remain in said New York property; ” and that the instruments in writing intended to execute and consummate the .agreement were executed and delivered, etc. Thus finding that so far as John Ropke was concerned that he executed the deed with the intention and for the purpose of carrying out the agreement Upon referring to the evidence we find that there was no ■dispute about the agreement; that all of the children understood it alike; that John Ropke understood that he was to convey to the plaintiff and to her husband, and that the plaintiff’s $10j000 was to stay in the property along with her husband, and that in ■executing the deed he did not stop to read it. The agreement was so understood by Mr. Morgan, the executor of William Ropke, and he appears to have instructed Mr. Bradshaw to draw the deeds in conformity therewith. It seems that Mr. Bradshaw so understood the agreement, but he omitted the name of Mrs. Haack from the deed because her husband stated to him that “he wanted that portion to his wife fixed so it vested in him.” He testified, however, that Mrs. Haack was not present, and that he ■did not consult her to see whether the arrangement was according to her wishes; that he did not ask any questions, but thought that Mr. Haack was a pretty clear-headed fellow, and was taking good care of himself to vest himself with the property.. The trial court in its opinion restates the agreement as made between the children of Ropke, and that the plaintiff was to take title to the New York property with her husband, and then refers to the direction of the plaintiff’s husband to the conveyancer to draw the deed so that the property would vest in him, and upon this fact appears to have based the conclusion that the idea of a mistake in the transaction could not be upheld. So that, as we understand, the intention and meaning of the trial court in finding that there was no mistake in omitting from the deed the name of the plaintiff means that there was no mistake so far as the plaintiff’s husband was concerned. This construction removes the conflict that otherwise would exist between the findings of fact as made and brings them in harmony with the testimony given.

It next becomes important to consider the interest of Ropke, the grantor, and his relation to the parties. As we have seen, he was the brother of the plaintiff, and one of the four tenants in common to the New York and Brooklyn property, of which his father had died seized. They had agreed upon a partition of the property between them. The sisters had joined in a deed to him with the understanding and agreement that he was to convey the New York property to the plaintiff and her husband upon the payment by the husband of $10,000 to one of the sisters; that the plaintiff’s interest was to remain in the New York property. The plaintiff as one of the four children of William Ropke was seized of a one-fourth interest of the real estate in New York and Brooklyn. Under the partition agreement she was to convey her interest in the Brooklyn property to her brother, and her entire interest in fche real estate was to vest in the New York property, which would make her interest in that property an undivided one-half. John Ropke in taking the title to the New York property under the agreement to reconvey became merely a trustee for that purpose. He was the mere conduit through whom the title was transferred. He had no authority or right to change the contract and convey to other person or persons than those agreed upon. Stehlin v. Golding, 15 N. Y. State Rep., 814; Stow v. Tifft, 15 Johnson,. 458 ; 1 Washburn on Real Prop., 176.

The agreement was with the plaintiff, his sister, to convey toiler an undivided one-half. Instructions to that effect were given to the scrivener, and the deed was executed by Ropke with the intention and for the purpose of carrying out the agreement. They were both parties to the agreement, and certainly as to them there was a mutual mistake in omitting the plaintiff’s name from the deed. It is true that the agreement also embraced the husband. He was to buy one of the sister’s interest for $10,000, and was to-receive a deed of the other undivided one-half of the New York property, that being the sister’s interest which he had purchased. But this portion of the agreement is independent of that requiring Ropke to convey to the plaintiff her interest, and gave him no power, right or authority to change, alter or modify the agreement to convey to her.

The trial court, as we have seen, has found that the plaintiff received no consideration for the transfer of her interest in the property to her husband, and that she did not in fact know of it, but understood and believed the title to be in herself until after Ms death. Here there was not even a gratuitous transfer of the property from the wife to the husband. There was no intention to convey or understanding that conveyance had been made. In such a case it is not necessary that there should be a fraudulent intention on the part of the husband to obtain title. Haack did not request the • scrivener to omit the plaintiff’s name from the deed, but, as the scrivener recollects, he'requested that the deed should be so drawn that her interest would vest in Mm. This testimony was given some six years after the transaction, and his recollection may not be exact in reference to the words used. Haack might not have intended to perpetrate a fraud upon his wife. But it would either be a fraud or a mistake, which would be sufficient to vitiate the conveyance. Occupying the confidential relation of husband and obtaining the conveyance under the circumstances disclosed, casts upon him the burden of showing that the conveyance was free from fraud or mistake. Boyd v. De La Montagnie, 73 N. Y., 498.

Again, we do not understand that the rights of the plaintiff would be affected even though it should be found that her husband acted for her as her agent. The consideration for the conveyance of the undivided one-half was hers. If her husband, without her knowledge and consent, procured the conveyance to be made to him, she would still be entitled to have it adjudged that he held, the same in trust for her, notwithstanding the provisions of the- statute, which provide that: “ Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment - shall be made, but the title shall vest in the person named as the alienee in such conveyance.” 1 R. S., 728, §51. For' under § 53 the provisions of §51 “Do not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name without the consent or knowledge of the person paying the consideration.” Reitz v. Reitz, 80 N. Y., 538-542.

We, therefore, agree with the general term, so far as this branch of the case is concerned, that the plaintiff has established a good, cause of action for a reformation of the deed.

It remains to be seen whether she has forfeited that right by accepting the devise and legacy contained in the will of her deceased husband.

In June, 1883, Heinrich A. Haack, the plaintiff’s husband, died, leaving a last will and testament, which has been duly proved and admitted to probate. By it he devised to his wife, the plaintiff, the real estate in Brooklyn on which he lived, and bequeathed to-her the sum of $10,000 in cash, which was to be in lieu of dower. He then gave his gold watch and chain to Henry Oest, and $4,000 each to Wilhelmina Oest and Henry Oest, his nephew and niece.. It then provides: “ I give and devise to my sisters, Wilhelmina. Ropke and Mary Oest, and my brother, Deidrick Haack, all the-rest, residue and remainder of my estate, share and share alike.” The plaintiff has accepted the provisions made in the will in her behalf, and the trial court has found that this acceptance on her part amounts to an election to hold under the will, and precludes, her from setting up any legal or equitable claim of her own to the real estate in question. The rule appears to be unquestioned by the parties. It was well settled by Denio, Ch. J., in the case of Havens v. Sackett, 15 N. Y., 365-369. He there says: “ One who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. Foi example, if a testator has attempted to dispose of property in his oWn name, and has given a benefit to the person to whom that, property belongs, the legatee or devisee accepting the benefit so-given to him must„make good the testator’s attempted disposition.”

H, therefore, the plaintiff’s late husband has devised the real estate in equity belonging to her, her acceptance of the devise and bequest, under the will, precludes her right to maintain this action. She cannot accept and then prevent the other devisees under the will from receiving the portion intended for them. But, has he devised the real estate which equitably belonged toiler ? He knew that an undivided one-half of the property in question belonged to her, as her sole and separate property, having descended to her from her deceased father; he knew that he had taken the title of her interest in his own name, without her knowledge or consent; that equitably, it still belonged to her; he only, .gives to his brother and sisters the residue and remainder -of his estate, share and share alike; he mentions no parcel of real ■estate intended to be covered by this provision, neither does he pretend to give them anything but that which is his. So that we are unable to see that there is anything in the will that is inconsistent with the claims of the plaintiff. It is argued that by allowing her to recover her interest in the real estate the provisions of the will will be defeated, and thus it is evident • that he intended to devise that portion of the real estate ■equitably belonging to her; but such does not appear to us to be the effect. Under the joartition agreement she was to retain her interest in the real estate, which, as we have seen, was an undivided one-half. This was her sole and separate property. Her husband purchased the interest of her sister for $10,000 which vested in him the other undivided one-half. Them interests were separate and distinct; it was that of tenants in common and not of joint tenants or tenants by the enr tirety. By accepting the provisions made for her by the will, she waived her right to dower. Therefore, her husband’s undivided -one-half of the real estate remained to be disposed of by the will. It appears that a legacy of $10,000 was' given to her, and two other legacies of $4,000 each were given to a nephew and niece, making $18,000. The report of the executors shows that the personal estate coming to their hands amounted to the ¿sum of $20,567.79 and that the debts amounted to. $1,739.62, leaving a balance of $18,828.17. The will contains no provision charging the payment of the legacies upon the real estate, and, in view of the fact that the personal estate exceeded the amount of the legacies, we must assume that he expected and intended that they should be paid out of his personal property. This leaves his undivided half of the real estate in New York, which at the time of his death was valued at $12,500, to pass to his ■ brother and two sisters, under the residuary clause, thus carrying out all of the provisions of the will, doing justly to all objects of his bounty and robbing no one.

If the conclusion of the trial court is correct, a very different result will be reached, for, under that view, the plaintiff, his widow, will be left without any substantial provision made for her support jmd maintenance out of his estate. The real estate devised to her was incumbered by a mortgage for $5,000. Prey, one of the defendant’s witnesses, testified that it was worth about $3,000 aside from the mortgage, which we must assume to be its full value. This, added to the $10,000 bequeathed to her, makes • $13,000 the entire amount that she gets under the will. If the real estate in question was worth $25,000 at the time of his death, as claimed by the respondents, her half which was taken from her by her husband was worth $12,500. The provisions of the will, therefore, but barely pay her for that which was her own, and at most, leave her but $500, which she gets in lieu of dower, for her support, and maintenance; and this out of an estate left by her husband of upwards of $36,000 aside from her half of the real estate. It does not appear to us that such was the purpose or intent of her husband.

We are consequently of the opinion that the judgment should be reversed, and a new trial ordered, and that the costs should ■abide the event.

All concur, except Follett, Oh. u., dissenting, and Bradley, J., not voting.  