In re the Intermediate Judicial Settlement of the Accounts of King

McLennan, P. J.: Patrick Eagan died in the city of Rochester, N. Y., on the 1st day of June, 1903, leaving him surviving liis widow, Mary Eagan (one of the appellants), his two daughters, Sarah Eagan (the other appellant) and Catherine J. King' (the wife of the respondent), and a son, Stephen Eagan, who were his only heirs and next of kin. The deceased left a last will and testament bearing date December 21, 1898, by which he-devised practically all of his property, amounting in value to about $40,000, in trust, the income thereof to be used for the benefit of his widow, Mary Eagan, during her lifetime, and at her death to be divided into three equal parts, one of-said parts to go to each of his said daughters; Sarah Eagan and Catherine J. King, and the remaining part to the children of his son, Stephen Eagan, with a life use of said part or third to his son Stephen. By the will John C. King, the son-in-law (the -respond [753] ent), Catherine J. King, daughter of the testator and wife of the respondent John C. King, and the widow, Mary Eagan, were named - as executors. The daughter and widow renounced. The will was admitted to probate on the 11th day of June, 1903, and the respondent John C. King was appointed and has since acted as sole executor. The suggestion is made in the argument of appellants’ counsel that the conduct of the executor in respect to the investment of the funds of the estate was improper and that by other acts he did not conserve the best interests of the estate, but no such issue is presented by this appeal. It appears without contradiction that on the 26tli day of Mai'ch, 1898, the deceased made and executed an- instrument in writing, of which the following is a copy : “To Whom it May Concern and especially to John C. King, of ¡Rochester, ¡N. Y. “ Take ¡Notice that I hereby declare and state that I hold the stock consisting of Fifty Shares of the ¡National Lead Co. Stock, Preferred, in Trust for my daughter, Catherine J. King, to be delivered to her at my death. “ I, however, retaining the right during my lifetime of drawing the dividends thereon. The certificates for said stock are annexed to this paper and direct you to hand said certificates to her at my death.” . This paper was discovered to be in the possession of John C. King at the time of the testator’s death. We think, under the circumstances, the instrument in question transferred irrevocably the stock in- question to Catherine J. King, the wife of the respondent, and that it was not a part of the estate of Patrick Eagan, of which the respondent is executor. There is no question presented by the evidence in this case as to the competency of the donor or of undue influence, and we do not think the evidence offered by the appellants impeaches in any manner the genuineness of the trust deed by which Catherine J. King became the owner of the stock in question. We think it is unnecessary to discuss or consider any of the other questions raised by the appellants upon this appeal. The deed of trust was unambiguous and was specific, giving to Catherine J. King [754] the stock in question, reserving the income or dividends declared thereon to the donor during his lifetime. Under those circumstances we think it is of no consequence whether the executor testified* to a transaction within the prohibition of section 829 of the Code of Civil Procedure, because wholly- independent of such evidence the gift expressed in the- deed of trust was valid and became, operative upon the death of the donor; and so it is of no consequence that incompetent evidence was admitted- or that competent evidence was rejected, tending to show the attitude of the respective parties in the premises. The.deed of trust above quoted, which was made voluntarily by the testator while in the possession of his mental faculties and without undue influence, should determine the rights óf the parties to this .controversy. I conclude that under the deed of trust above quoted Catherine J. King, the wife of the executor respondent, becaine the absolute owner of the shares of stock in question, and that the" executor Was urider.no obligation to account for the same in his judicial accounting : that- the decree of the Surrogate’s Court is correct and should be affirmed with one bill of. costs to be paid- by the appellants personally. . All "concurred; Spring, J., in separate memorandum.