Hone v. De Peyster

1 How. Pr. (n.s.) 422

Opinions

Daniels, J.

The division by the testator of the money arising from the bond and stock of the Peru Iron Company, by which the amount was divided between the parties from whose interest it arose, and the widow was in effect credited with $5,511, is a plain indication of the intention of the testator to hold such proceeds, not for the benefit of himself, but for the benefit of his widow.

It was substantially placing himself in the situation and relation of a trustee as to these moneys, for the benefit of his wife, as well as to the other two shares for the benefit of the persons entitled, to the other parts of the money. There was the same reason for believing that he intended to hold one-third of the proceeds for her, as there was that he intended to hold the other shares, as he did, for the benefit of the other persons, to whom two-thirds of the money was in fact paid by him.

The same observations are alike applicable to the sum of $6,000, received on account of a legacy from the Hone estate, which had been bequeathed to her.

The plaintiff, as executor of the estate of the widow, was entitled to recover those moneys, as funds held in trust for the testatrix by her husband.

The judgment should be reversed and a new trial ordered.

I concur with Daniels, J., JohnR Brady.