#### Alexander J. Dodin, as Sole Surviving Executor, Etc., of Mansuy P. Dodin, Deceased, Plaintiff, *v.*Alphonse J. Dodin et al., Defendants.

(Supreme Court, New York Special Term,

January, 1899.)

Equity — Adult heirs held liable for a mortgage loan which executors of their father procured by a device in contravention of the terms of his will.

The will of Alexander Dodin, who died in 1884, after devising his residuary estate to such of his children as should survive him, directed his executors to hold the portion devised to the children during the minority or until the death of his surviving youngest child, to apply the income to their support, and to pay to each child its share at majority, if the executors deemed it proper. He gave his executors power to sell his real estate and distribute the proceeds, but gave them no power to mortgage. In 1889 the executors, in order to build a new building on his land and raise money therefor, deeded the property to an adult child who mortgaged it for a loan which constructed the building and satisfied a mortgage of $5,000 existing on the premises in favor of the lender. After the building was completed the child reconveyed to the executors. A foreclosure of the mortgage of 1889 was refused upon the ground that it was a device to avoid the will. This action is now brought upon the part of the mortgagee to have the loan declared a lien and to reinstate his mortgage which had been satisfied.

Held, that the action was maintainable against the adult heirs who were such at the time of the transaction in 1889 and, to- that end, that the mortgage for $5,000 be foreclosed and that at the same time the right, title and interest of the adults and widow in the premises be sold.

This is an action brought by Alexander J. Dodin, as executor of Mansuy P. Dodin, deceased, to have premises, comer ef Fourth street and Avenue O, in the city of New York, charged with the sum of $40,000, loaned by deceased, Mansuy P. Dodin, on said property, and also to have a certain mortgage for $5,000 restored as a lien upon said premises, and to have satisfaction of said $5,000 mortgage decreed to be inoperative, and that plaintiff recover same with interest, and that plaintiff have judgment of foreclosure and sale of said premises.

*154James P. Albright (James P. Campbell, of counsel), for plaintiff.

Earley *&*Prendergast, for defendants.

M. J. Earley, guardian *ad litem.*

Truax, J.

Alexander Dodin died in the year 1884 owning a parcel of land in the city of Hew York. He also left a last will and testament which was duly admitted to probate, which will provided, among other things, as follows: “ Third. All the rest, residue and remainder of my property, real and personal, and mixed, whatsoever or wheresoever the same may be, of which I may die seized and possessed, or in any manner be interested in or entitled to, I give, devise and bequeath unto my children living at the time of my death equally, share and share alike, and to their heirs and assigns forever. Fourth. It is my will, and I hereby order and direct that the share or portion of my estate herein given or devised to my said children shall be held in trust by my executrix and executor and the survivor during the minority 'of my daughter Clara, or, in case of her death before me, during the minority of the youngest child I may leave surviving, or until the death of such youngest child, should he or she die before attaining the age of twenty-one years; and that the income arising therefrom be applied to the use and maintenance and support of my said children, as the same may be necessary and proper in the discretion of my said executrix and executor from time to time, with the right and power to pay or apply such portion of the capital of the share to any child who shall have attained the age of twenty-one years, if in the opinion of the said executrix and executor the same would be provident and judicious, and with the further power to pay the whole share to any or all of my children when they respectively become of age, if 'the same, in their opinion, would be proper. Sixth. I authorize and empower my said executrix and executor, and their survivor to bargain, sell and convey any or all of my real estate, from time to time, as they may deem the same to be advantageous and beneficial for my estate; and to make, execute and deliver the proper and necessary deeds for the conveyance thereof; and to pay and distribute the proceeds arising from such sale to and among my children as herein directed in the third, fourth and fifth clauses or paragraphs of this my last will and testament. Lastly, I nominate and appoint *155my said beloved wife, Celina Dodin, and my son Henry A. Dodm, as the executrix and executor of this my last will and testament; and I appoint my said wife the guardian of my infant children, and in case of her death during the minority of any of. them, I appoint my said son, Henry A. Dodin, as such guardian.” Letters testamentary were duly issued to both the executrix and executor, and they took possession of the premises in the city of Hew York. The said Alexander Dodin left him surviving eight children. One of said children died in infancy without issue. The others are still living. Five of the children of said Alexander Dodin were of full age in the year 1889, at the time of the transactions hereinafter mentioned. One of the children became of age in the year 1896, and the other will not become of age until 1904. Part of the property, of which said Alexander Dodin died seized, wasi a plot of land on the west side of Avenue C, in the city of Hew York, seventy-two feet in width and ninety feet in depth, with two double buildings on the front and three buildings on the rear of the lot. In Hay, 1889, the executrix and executor named in the will had taken down the said buildings and had begun excavating for a new building. This was done upon the advice of Mansuy P. Dodin, a brother of said Alexander Dodin, deceased. Said Mansuy P. Dodin then held a mortgage for $5,000 upon this property, which had been made by said Alexander Dodin in his lifetime. He offered to lend to the executor and executrix $40,000 to assist them in the erection of the new building, but was advised by his lawyer, that under the will the executor and executrix had no right to make a mortgage. It was, however, suggested to him that the executor and executrix should deed the property to some one, and then that that person should make a mortgage to- him, the said Mansuy P. Dodin. Acting upon this suggestion, the executor and executrix conveyed said property to Alphonse J. Dodin, one of the children of said Alexander Dodin, deceased, without consideration, and at the same time the said Alphonse J. Dodin executed and delivered a bond and mortgage to said Mansuy P- Dodin to secure the payment of $45,000, and said Mansuy P. Dodin executed and delivered a satisfaction-piece of the said $5,000 mortgage held by him, which satisfaction-piece, together with the aforesaid deed, was duly recorded. Said Mansuy P. Dodin advanced $40,000 in cash on said mortgage, which was applied entirely to the erection of the new buildings on said plot of ground. Two months after the making of the deed and mortgage above referred to, the said Al*156phonse J. Dodin conveyed said property to the said executor- and executrix. This deed was also without any consideration. An action was brought to foreclose said mortgage of $45,000, but the complaint was dismissed upon the merits upon the ground that the transfer of the property by the executor and executrix to Alphonse J. Dodin was not a valid transfer, but was a device to' evade the terms of the will of said Alexander Dodin. It was also held that the deed to said Alphonse J. Dodin was void; that he had no title to the property, and that the mortgage made by him to' Mansuy P. Dodin was also void. In this action the plaintiff seeks to have said sum of $40,000 and interest thereon declared to be a lien upon the premises; to have the satisfaction of said $5,000 mortgage set aside and said mortgage declared to be a lien upon said premises, and said premises sold and the proceeds applied towards the payment of said liens, with interest, and the costs of this action. The evidence clearly shows that all of the parties acted in good faith in making the transfer to Alphonse J. Dodin, the mortgage to Mansuy P. Dodin, and in erecting the new buildings on said premises, and that it was considered by all the parties, except the infants, that the erection of said buildings would be for the benefit of the estate of said Alexander Dodin. The mortgage of $45,000 having been declared to be void, I am of the opinion that the satisfaction of said mortgage for $5,000 should be set aside, and said mortgage, together with interest thereon from the date of the last payment of interest on the $45,000 mortgage, should be declared to be -a lien upon said premises; that a referee should be appointed to ascertain the amount due on said mortgage and to sell said property. It seems to me that it would be inequitable to allow the widow of said Alexander P. Dodin and those of his adult children who were of full age at the time the $45,000 mortgage was made to receive the benefits of that mortgage in the making of which they participated and be relieved ¡of the burdens of the mortgage, and for that reason I direct that the referee, at the time of making the sale of the premises under the $5,000 mortgage, also sell all the right, title and interest of the said widow, andi the said five adult children of Alexander P. Dodin in said premises. I appoint Mr. Gilbert M. Speir referee to carry out the provisions of this decree, and I direct that a judgment be entered in accordance with this decision, with costs and an extra allowance of $500.

Ordered accordingly.