Sachs v. Walsh

In a dispute which arose between William A. Wilson and William S. Wilson (the latter being a son of the former and a claimant herein) concerning real property, William S. Wilson gave to his father, February 11, 1897, a power of attorney of the widest scope and ■ irrevocable by its terms. The father conveyed the property March 1, 1897, to the claimant ¡Nicholas Boch, and about the same time the latter executed and delivered to the former an agreement in which Boch declares that he holds the property so conveyed to him in trust for William A. Wilson, his heirs, administrators and assigns, for the proper support and maintenance of said William A. Wilson; that he will pay the rents and profits of said property to the cestui que trust; and upon the request and demand of the cestui que trust and 'his heirs, executors, administrators and assigns he will convey and assure to him, his heirs and assigns, etc., warranting against all claiming under said Boch. The property was unimproved, and no income was derived from it. The trustee paid interest on the mortgage covering the property, and taxes, and also boarded the cestui que trust for five dollars a week. The claimant William S. Wilson testified that the purpose of the power of attorney which he gave to his father was that the latter should have support and maintenance during his life; so that whatever claim William S. Wilson has against the fund is subject to Boch’s claim for reimbursement. It appears that in 1887 the property in question be*753longed to the father, William S. Wilson, but that in July of that year he parted with the title. Bis judgment creditors, the first of whose judgments was obtained and docketed in 1890, claim the surplus. As their judgments were obtained after he had conveyed the fee they never became an actual lien on the land. And assuming that there was no consideration for the conveyance of the property by the father it does not appear that he was then insolvent, so that in the hands of his grantees the property was never charged with the lien of the judgments. First Nat. Bank of Sing Sing v. Hamilton, 59 N. Y. St. Repr. 331; afld., 149 N. Y. 587; Kain v. Larkin, 131 id. 300. On the death of William A. Wilson the trust became passive, and the legal title reverted to William S. Wilson. Hopkins v. Kent, 145 N. Y. 363; Roberts v. Cary, 84 Hun, 328; Matter of Tienken, 131 N. Y. 391. William A. Wilson had at the time of his death merely an equitable estate in the property which was determined by his death, and did not go to his heirs.

Exceptions overruled and the referee’s report confirmed.