Smith v. Terry

Decided July 15, 1898

New York Supreme Court · decided 1898-07-15

Trust for separation of husband and wife — Resumption of marital relations. ' Under a tripartite agreement of separation, a husband deeded real estate to a trustee upon condition that he pay the income to the wife for life and upon her death reconvey it to the husband or to his heirs. The parties (became reconciled and the husband, upon his death, devised the property to his wife. In 1896 she leased the property for ten years and, dying in 1897, devised the property to her heirs. Held, that the resumption of marital relations avoided the agreement of separation, that the wife took under the will of her husband and that her lessee was entitled to hold as against the heirs of the husband, claiming under the trust for a separation, and to whom the trustee had conveyed after her death.

Relies on Zimmer v. . Settle · Kip v. . Hirsh

Decided 1898-07-15

Gaynor J.

¶1By the resumption of the marital relation the agreement of separation and the trust founded thereon ceased (Zimmer v. Settle, 124 N. Y. 37); and ipso facto the estate of the trustee also ceased and the title reverted to the husband (Kip v. Hirsh, 103 N. Y. 565; Chaplin on Express Trusts and Powers,sec. 524). It follows that the wife got title in fee to the land in question by the will of the husband, and that the plaintiffs’ title is from her and subject to her lease to the defendant. I do not *230find that the resumption of the marital relation was upon an agreement- that the separation trust should continue, if sp.ch a result could be effected by an oral agreement as is claimed.. ^

¶2Judgment for defendant.