Opinion of the Court, per EARL, J.

But from the sum so to be paid should be deducted the amount of alimony, $1,000 per year, which the trustee has been ordered by the judgment in the action for a separation to pay to her. It was clearly shown that in fixing the amount of the alimony the court assumed that the whole of the income of the trust property belonged to the husband, and based the amount of alimony upon that assumption. It would be very unjust now, also, to compel him to pay her one-third of the income in addition. If he supported his wife as a member of his family, he would discharge his trust, and so far as he supports her elsewhere, or contributes to her support elsewhere, his trust should be considered discharged. If he pays for her support the full one-third of the income, she should have no claim for more in this action. If he pays less, her claim should be only for the balance. If the amount of alimony, considering the amount of the trust income and of her husband's property, is not sufficient, she can apply to the Supreme Court, on the basis of the separation judgment, for an increase of the same. We can, at this time, perceive no other disposition of the wife's case, as it is now presented to us, which would not work injustice to the husband.

The result, therefore, is that the judgments of the Special and General Terms should be reversed, and the case remitted to the Special Term to the end that there the amount of the net income of the one-half of the trust property, since the commencement of this action, may be ascertained, with a proper allowance of commissions and expenses to the defendant Robert, and that the plaintiff may have judgment for onethird of such net income after such allowance, so far as the same has accrued, and that the defendant Anna S. may have a similar judgment for the balance, if any, after deducting the amount of $1,000 per year allowed to her for alimony, neither party to recover costs of appeal to this court.

All concur.

Judgment accordingly.

SICKELS-VOL. XXXIX. 42

Statement of case.

MILES R. RIGGS, as Administrator, etc., Appellant, v. THE AMERICAN TRACT SOCIETY, Respondent.

Plaintiff's complaint alleged in substance that R., his intestate, being at the time of unsound mind, transferred to defendant various sums of money under an agreement, in writing, by which defendant agreed to pay to R. the interest on said money during his life, and after his death interest on the whole or a part thereof to his executor or administrator for the benefit of his widow, or directly to his widow and his sister for their benefit during their lives; that interest was paid by defendant up to the death of R., but not since; that the sister of R. died shortly after his death; that plaintiff, after his appointment as administrator, obtained from the widow her written consent that he might surrender the written agreement, which he offered to do, and demanded a return of the moneys, which defendant refused. On demurrer to the complaint, held, that it stated a good cause of action; that the allegation as to unsoundness of mind was one of fact, and the contract was one that could be rescinded. Where a party seeks to sustain a contract made with a lunatic, on the ground that it was made in good faith, for the benefit of the lunatic and without knowledge of his incapacity, and that it has been so far performed that said party cannot be placed in statu quo, these facts must be alleged and proved.

Riggs v.

American Tract Society (19 Hun, 481), reversed.

(Argued February 4, 1881; decided March 1, 1881.)

APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made January 6, 1880, which reversed a judgment of Special Term, entered upon an order overruling a demurrer to the complaint herein. (Reported below, 19 Hun, 481.)

The complaint alleged in substance that the plaintiff's intestate, Ira Riggs, was for upward of fifteen years next preceding his death of unsound mind, and for that cause legally incapable of making the dispositions of his property to the defendant which are thereinafter set forth; that shortly prior to his death he, in form, transferred to the defendant several sums of money, amounting in all to the sum of $4,000, which the defendant received; that said moneys were so transferred and received under an arrangement by which the intestate,

Statement of case.

being of unsound mind as aforesaid, agreed to give, and did give, said moneys to defendant, and defendant agreed to give, and did give, to the intestate certain assurances in writing, obligating the defendant to pay the interest on said money, every six or every three months, to the intestate during his life, and thereafter on the whole or a part of said moneyto either the executor or administrator of the intestate, for the benefit of his wife, being his widow, or directly to his wife and to his sister, Marilda, for their benefit during their lives respectively. The complaint also alleged that the interest on said money was paid by the defendant to the intestate during his life; that his sister, Marilda, died shortly after his death, without having received any of such interest, and that none of said interest has been paid to the plaintiff; that soon after the plaintiff was appointed administrator he found said written assurances among the papers of the intestate, and thereupon he obtained from the widow of the intestate her written consent that he might surrender said assurances to the defendant, and he afterward, and before the commencement of this action, offered to surrender to the defendant the said consent of the widow, acknowledged by her, together with the said assurances and all claims of the plaintiff or of the widow based upon them, and demanded a return of said sums of money; all of which the defendant refused. The relief demanded is a judgment for said $4,000, with interest from the time of said demand.

The demurrer was upon the grounds: 1. That there is a defect of parties defendant, in the omission of the widow of the intestate, and also in the omission of the personal representatives of the next of kin of his said sister, deceased; and 2. That the complaint does not state facts sufficient to constitute a cause of action.

H. L. Comstock for appellant. The words "unsound mind" as used in the complaint are of equivalent import with the phrase non compos mentis. (Ex parte Bransley, 3 Atk. 167; Stewart's Executor v. Lispinard, 26 Wend. 297; Blanchard v. Nestle, 3 Den. 41; 1 R. S. 719, § 10; 2 id. 54, 56,

Statement of case.

57, § 1; 2 Abb. Forms, 41; Dows v. Hotchkiss, 10 Leg. Obs. 281; Seaver v. Phelps, 11 Pick. 304.). The gifts, or transfers of money, made by the plaintiff's intestate to the defendant, as stated in the complaint, were void, and not merely voidable. (Van Deusen v. Sweet, 51 N. Y. 378; Farley v. Parker, 6 Or. 105; 25 Am. Rep. 514; Dexter v. Hall, 15 Wall. 9; Thompson v. Leach, Carth. 435; Estate of Sarah De Silver, 5 Rawle, 111; Yates v. Boen, 2 Str. 1104; Beverly's Case, 4 Rep. 123; Thompson v. Leach, Comb. 468; S. C., 3 Salk. 300.) If it should be assumed that the several transfers of money by the intestate to the defendant, as stated in the complaint, were voidable, and not void, still plaintiff, as administrator, has a right to avoid the several transfers and recover back the money for the benefit of the next of kin and creditors of the intestate. (Gibson v. Soper, 6 Gray, 279; Nichol v. Thomas, 53 Ind. 42; Hovey v. Hobson, 53 Me. 451; Seaver v. Phelps, 11 Pick. 304; Rice v. Peet, 15 Johns. 503; Henry v. Fine, 23 Ark. 417; Van Dusen v. Sweet, 51 N. Y. 384; Matthiesen and W. R. Co. v. McMahon, 38 N. J. L. 537.) The transactions between the intestate and the defendant were substantially gifts, and the agreement of the defendant to pay interest on the money during the life-time of the intestate, his widow and sister, does not change the character of the transactions as gifts. (Doty v. Wilson, 47 N. Y. 580; Hills v. Hills, 8 M. & W. 404; Blount v. Barrow, 4 Bros. C. C. 72; Moulton v. Camroux, 2 Exch. 487.) It was not necessary that the plaintiff should put the defendant in statu quo in fact, but only that he should be able to do so and should make the offer to do it. (Gibson v. Soper, 6 Gray, 279; Henry v. Tine, 23 Ark. 417; Nichol v. Thomas, 53 Ind. 42.)

Howard Payson Wilds for respondent. The administrator cannot maintain this action, even if the intestate's transfer of money to defendant were void. (2 R. S. 82, § 6; Jackson v. King, 4 Cow. 207, 217; Ordronaux, Judicial Aspect of Insanity; Person v. Warren, 14 Barb. 494; Osterhout v. Shoemaker, 3 Den. 37, note.) This action is one for money had

Statement of case.

and received, and the plaintiff fails to satisfy the well-settled rule that he must show an equitable right in good conscience and natural justice. (Doty v. Willson, 47 N. Y. 584; Hills v. Hills, 8 M. & W. 404; Bloubet v. Burrow, 4 Brown Ch. C. 72; Allen v. Berryhill, 27 Iowa, 534; S. C., 1 Am. R. 309; Allis v. Billings, 6 Metc. 415; Carrier v. Sears, 4 Allen, 336; Howe v. Howe, 99 Mass. 98; Blanchard's Gunstock Factory v. Warner, 1 Blatchf. 258, 271, 277; Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat. Cas. 393; Ould v. Washington Hospital, 95 U. S. 303; 2 Perry on Trusts, $$ 701, 705; Buel v. Boughton, 2 Den. 91; 1 Chit. Pl. 368; Peters v. Gooch, 4 Blackf. [Ind.] 515; Stanton v. Miller, 1 Sup. Ct. [T. & C.] 23 ; 58 N. Y. 192; Matter of Cornwall, 9 Blatchf. 114; Spalding v. Hallenbeck, 30 Barb. 292; 35 N. Y. 204; 39 Barb. 79.) A person who is merely "of unsound mind" is not necessarily, or even presumptively, incapable of making such a disposition of his property. (Browne's Med. Juris. of Insanity, § 57; Searle v. Galbraith, 73 Ill. 272; Kendall v. May, 10 Allen [Mass.], 59, 64; Hall v. Unger, 2 Abb. [U. S. Circ. Ct.] 512; Dennett v. Dennett, 44 N. II. 531.) The character of the unsoundness of mind and the connection between the alleged unsoundness and the kind of transaction are essential matters necessary to be pleaded as matter of fact. (Oakes Case, 8 Law R. 122; Henchman v. Riche, Brightly, 143; Article on Confinement of Insane, 3 Am. Law Rev. 193, Jan. 1869; Brushe's Case, 3 Abb. [N. C.] 325; Ayert' Case, id. 218; Spittle v. Walton, L. R., 11 Eq. 420; Kendall v. May, 10 Allen [Mass.], 59; Cartwright v. Cartwright, 1 Phill. 90; Matter of Barker, 2 Johns. Ch. 237; Breed v. Pratt, 18 Pick. 115; Lewis v. Jones, 50 Barb. 645; Matter of Gilbert, 3 Abb. [N. C.] 222; Delafield v. Parish, 25 N. Y. 9, 27, 29; Stewart v. Lispenard, 26 Wend. 225; Van Guysling v. Van Kuren, 35 N. Y. 70; Banks v. Goodfellow, L. R., 5Q. B. 549; Jackson v. King, 4 Cow. 207; Person v. Warren, 14 Barb. 495; Bishop on Mar. and Div., § 129; Browne's Med. Juris. of Insan., § 155, last paragraph; Anon. Z. v. X., 2 Key & J. 441; Story on Partn., §§ 292–297; People v. Montgomery, 13 Abb. Pr. [N. S.] 207; People v.