
    (69 Hun, 573.)
    MURPHY v. WHITNEY et al.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    1. Trusts—Perpetuities—Partially Executed Contract.
    Defendant and her six brothers and sisters agreed with each other to hold, for the joint use of all, certain property owned by them in common; that on the death of each the share of the one dying should vest in the survivors until the entire estate should be vested in the last survivor, and that on the death of such last survivor it should pass to plaintiff. The brothers and sisters all died,, having observed their agreement. H'eldt that, though the agreement, so far as it was unexecuted,- might be void under the statute of perpetuities, (1 Rev. St. p. 723, § 15,) defendant could not repudiate it on that ground as to the shares of her brothers and sisters which she had acquired under the agreement.
    3. Statute op Frauds—Part Performance.
    The transfer to defendant of the shares of her brothers and sisters who had died was such part performance as took the case out of the statute of frauds, (2 Rev. St. p. 134, § 6,) requiring agreements relating to land to be in writing.
    8. Action—Who may Sue—Party in Interest.
    The shares of the estate acquired by defendant from her brothers and sisters being held by her under an agreement that it should pass on her death to plaintiff, by descent or devise, plaintiff was the owner of the reversion, and as such could sue to set aside a conveyance of the property by defendant to a third person.
    Appeal from special term.
    Action by Hugh Merancy Murphy against James W. Whitney, Aurelia W. Moore, and Mary Murphy. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Q. Van Voorhis, for appellants.
    M. H. Peck, Jr., for respondent.
   HAIGHT, J.

This action was brought for the purpose of establishing a trust agreement, the setting aside of various conveyances of real estate from the defendant Mary Murphy and her sister to the defendants James W. Whitney and Aurelia W. Moore, and for an accounting, etc. The defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The complaint is very voluminous, and a detailed statement of the facts would fill many pages. We are asked to consider three questions, and the allegations upon which they are founded may be briefly stated. Hugh Murphy, the grandfather of the plaintiff, died at Le Roy, Genesee county, in the year 1826, possessed of the real estate in question, and leaving him surviving three sons and four daughters. Upon his death the seven children became tenants in common of such real estate. One of the sons, Joseph Merancy Murphy, was married about the year 1837, and the plaintiff is the issue of such marriage. None of the other children married. After they had reached their majority, “by a common agreement and understanding between them, it was understood and agreed that the said lands and buildings constructed thereon were to be held by them as property in common for the joint use of all, as from time to time they might be living; and on the decease of any of them the interest of such deceased person was to vest in the survivor or survivors, for the purpose aforesaid, until the title and interest in the same was and was to be-concentrated in the last of such survivors; and that the title and interest of and in said property on the death of the last of such survivors was to pass to and become vested in the said Hugh Merancy Murphy, plaintiff herein, as the. sole representative of' the family name and estate of the Murphy family aforesaid. That such transmission of interest and estate was to be made through descent or by will, as might best serve to accomplish the purpose so agreed upon.” This understanding or agreement was respected' by the brothers and sisters, and for the purpose of carrying it out the brothers conveyed their interest in the real estate to the sisters.. The sisters, on the 20th day of April, 1857, each executed a will in which she devised her interest in the real estate to such of her sisters as survive, and if none survived, then to the plaintiff. Later-one of the sisters conveyed her interest to the surviving sisters, and still later other wills were made by the survivors, containing provisions in substance the same as in the former wills so far as. concerned the real estate, but containing some slight variation as to bequests of the personal estate. Thus was the title transmitted to the survivors. One after another of the brothers and sisters died-; and the defendant Mary, who at the date of the bringing of this action was 95 years of age, alone survives with the plaintiff, her nephew. It is alleged that she is weak, feeble, infirm, and mentally and physically unable to properly transact business; that the defendants Whitney and Moore have by false- and fraudulent statements prejudiced her against the plaintiff, and induced her to convey to them, without any consideration,, from time to time, the lands and property of the estate; that they have induced her to sell lands to other parties, and they, or one of them, have converted the proceeds, etc.

It is claimed—First. That the alleged agreement is void under-the statute which provides that “the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the time of the creation of the estate.” 1 Rev. St. p. 723, § 15. Second. That the agreement is void, because not in writing. 2 Rev. St. p. 134, § 6. Third. That the plaintiff" has not such an interest in the real estate as will authorize him to maintain this action.

The first .two questions we shall consider together, and shall assume for the purposes of this case that the agreement, in so-far as it remains wholly unexecuted, is void under the provisions, of the statutes referred to. The agreement remains unexecuted so far as the defendant Mary Murphy is concerned. She, as a ten-ant in common with her brothers and sisters, was the owner of an equal undivided one-seventh part of the real estate. The agreement being void, she cannot be compelled to convey or devise the same to the plaintiff. But her situation as to the other six-sevenths is different. Her title to that has come through her brothers and sisters, with the understanding and agreement that she should have the use of it during life, and that the remainder should go by descent or devise to the plaintiff. The agreement has been fully executed by all of her brothers and sisters, who were tenants in common with her. They have each conveyed by deed, or devised by will, the real estate to her, in accordance with the terms of the agreement. She was a party to the agreement, has taken title under it, the agreement has been executed •as to all of her cotenants in common, and to permit her now to repudiate it would be to sanction a fraud upon all of her deceased brothers and sisters. This cannot be done, either under the principles of estoppel or under the statute. Section 10 of the statute referred to provides: “Nothing in this title contained shall be ■construed to abridge the powers of courts of equity to compel a specific performance of agreements in case of part performance of such agreement.” As we have seen, the agreement has been •already performed by all of her cotenants in common. Under this provision of the statute the power is expressly reserved to courts of equity to compel specific performance in such cases. And in Ryan v. Dox, 34 N. Y. 307, 311, Davies, C. J., in delivering the opinion of the court, says:

. “It is well settled that courts of equity will enforce a specific performance •of a contract within the statute when the paroi agreement has been partly carried into execution. 2 Story, Eq. Jur. § 759. And the distinct ground upon which courts of equity interfere in cases of this sort is that otherwise one party would be enabled to practice a fraud upon the other, and it could never be the intention of the statute to enable any party to commit such a fraud with impunity. Indeed, fraud in all cases constitutes an answer to the most solemn acts and conveyances, and the objects of the statute are promoted, instead of being obstructed, by such jurisdiction for discovery and relief. And when one party has executed his part of the agreement, in the confidence that the other party would do the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to suffer his •refusal to work to his prejudice.” °

In Wood v. Rabe, 96 N. Y. 414, 422, Andrews, J., says:

“But there is a large class of so-called ‘constructive trusts,’ or trusts ex maleficio, where courts of equity treat the holder of the legal title to land as a trustee, and, through the medium of an assumed trust, makes that title subservient to the circumvention of fraud and attainment of justice. Trusts •of this character are not, I assume, within the exception in the statute.”

See, also, Moyer v. Moyer, 21 Hun, 67.

Has the plaintiff such an interest as to enable him to maintain the action? It is alleged, as we have seen, that the defendant Mary Murphy has conveyed away all of the farm. By this act ■she has put it beyond her power to perform the agreement. If, as we have seen, she held six-sevenths of the real estate in trust •under an agreement to devise, or to permit it to descend under the statute to the plaintiff, then he was the equitable owner of the reversion, and as such, we think, could maintain the action. Youngs v. Carter, 10 Hun, 194; Piper v. Hoard, 107 N. Y. 73, 13 N. E. Rep. 626. The judgment should be affirmed with costs, but with leave to the defendants to withdraw demurrer, and answer within 20 days, upon payment of the costs of the demurrer and of this appeal. All concur.  