Appeal from Special Term, New York County.
Actions by Thomas J. O'Donohue, Jr., and Mary L. Kelly and by John J. O'Donohue against Adele Smith and others as executors. From judgments of the Special Term ( 57 Misc. 448, 109 N.Y.Supp. 929), dismissing the complaint in each case, plaintiff in each case appeals. Modified and affirmed.
[114 N.Y.S. 538] H. Aplington, for appellants.
E. W. S. Johnston & Algernon S. Norton, for respondents.
Argued before PATTERSON, P. J., and LAUGHLIN, HOUGHTON, McLAUGHLIN, and SCOTT, JJ.
In each of these actions the plaintiff asks a judgment annulling a deed made by him or her during infancy and without consideration. From a judgment dismissing the complaint upon the merits, each plaintiff appeals.
The actions arise upon identical facts, except the ages of the respective plaintiffs at the time the deeds attacked were executed. Hugh Smith died July 16, 1890, leaving a last will and testament, wherein after providing an amount of $1,200 per annum for his brother, Henry A. Smith, he gave a life estate in his whole property to his sister Catherine T. Smith, the estate, consisting, among other things, of two valuable pieces of real estate. Upon the death of his sister Catherine, he gave one half of his estate to his sister Margaret C. Smith, and the other half to the children of his deceased sister, Mary Ann Murphy, one of whom was Louisa A. O'Donohue, the mother of these plaintiffs. The gift to her was in the following words:
" I give, devise and bequeath one other equal undivided fifth part of the rest, residue and remainder of my estate unto my niece Louisa A. O'Donohue, wife of Thomas J. O'Donohue, to have and to hold unto her, her heirs and assigns forever, and if she should die before my said sister Catherine, then I give, devise and bequeath the one fifth part to the issue of the said Louisa to be equally divided between them share and share alike."
Louisa A. O'Donohue died on November 13, 1904, during the lifetime of Catherine T. Smith, leaving her surviving these three plaintiffs, her children, each of whom thereupon acquired a vested remainder in one-fifteenth of the real estate of which Hugh Smith died seised, subject to the life estate of Catherine T. Smith. By deeds dated May 20, 1895, and acknowledged June 5, 1895, each of the plaintiffs conveyed to Henry A. Smith one-fourth of the grantor's right, title, and interest in the real estate of which Hugh Smith died seised. Henry A. Smith died July 27, 1903, leaving a will by which, after certain legacies, he left all of his estate to the Van Norden Trust Company, as trustee for the benefit of his widow, and his daughter Marie D. Heilmann. Catherine T. Smith died April 11, 1906, when each of the plaintiffs became vested in fee of the property in which he or she had theretofore had only a vested remainder. These actions were commenced on April 25, 1906.
(1) John J. O'Donohue was born April 9, 1875, and became of age on April 9, 1896. (2) Mary Kelly was born April 10, 1876, and became of age on April 10, 1897. (3) Thomas J. O'Donohue, Jr., was born August 22, 1880, and became of age on August 22, 1901.
The defendants urge three objections to a recovery by the plaintiffs:
First. It is said that, in order to maintain an action by a grantor to set aside a deed executed during infancy, there must be a disaffirmance antecedent to the commencement of the action.
Second. That the complaint fails to state a cause of action because it does not allege that plaintiff is in ...